J-A30024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOWARD L. GLEIT IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMMA KIM-AHN NGUYEN, THAO THI
NGUYEN, TRUNG Q. NGUYEN, AN QUOC
NGUYEN AND NAM NGUYEN
APPEAL OF: EMMA KIM-AHN NGUYEN
Appellant No. 3061 EDA 2013
Appeal from the Order October 24, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term 2006 No. 04892
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 20, 2014
Appellant, Emma Kim-Ahn Nguyen, appeals from the October 24, 2013
order finding her in civil contempt and imposing sanctions for her willful
failure to comply with the trial court’s post-judgment discovery orders. After
careful review, we affirm.
From our review of the certified record, we summarize the following
relevant procedural history. On November 3, 2006, Appellee, Howard L.
Gleit, filed suit against Appellant, and others who are not parties to this
appeal, for breach of contract, quantum meruit, unjust enrichment,
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*
Retired Senior Judge assigned to the Superior Court.
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promissory estoppel, and fraudulent transfer. On September 20, 2011, after
a four-day bench trial, the trial court found in favor of Gleit and against
Appellant and co-defendants in the amount of $77,734.46. Judgment was
entered on November 23, 2011 and Appellant, with her co-defendants,
appealed. See Gleit v. Nguyen, 64 A.3d 284 (Pa. Super. 2013)
(unpublished memorandum). On November 28, 2011, Gleit served
Appellant and co-defendants with a first set of interrogatories and request
for production in aid of execution.1
While the appeal was pending, on February 22, 2012, Gleit filed a
motion to compel Appellant and co-defendants to answer the discovery
request. Appellant filed no response. On March 27, 2012, the trial court
granted Gleit’s motion and ordered each defendant to “provide full and
complete responses to [Gleit]’s Execution Interrogatories and Request for
Production of Documents without objection within 10 days, or suffer
sanctions.” Trial Court Order, 3/27/12 (emphasis in original). Gleit filed his
first motion for sanctions on April 23, 2012, after Appellant did not comply
with the court order. Gleit next filed a motion, on May 18, 2012, for an
order to compel Appellant to attend a deposition. The trial court granted
Gleit’s motion for sanctions on May 24, 2012, imposing sanctions in the
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1
See Pennsylvania Rule of Civil Procedure 3117 (permitting plaintiff, at any
point after judgment, before or after the issuance of a writ of execution, to
engage in discovery for the purpose of discovering assets of the defendant).
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amount of $750.00 to be paid to Gleit for the “preparation of and
appearance of this motion[]” and ordered Appellant, a second time, to
provide full and complete answers to the discovery requests without
objection. Trial Court Order, 5/24/12. The order further notified Appellant
that “an appropriate contempt order shall be imposed … upon application to
the court” if the order is not followed. Id.
Thereafter, on June 7, 2012, Appellant filed a motion for a protective
order. Gleit filed his second motion to compel and for sanctions on June 12,
2012, which was temporarily denied on June 20, 2012 pending the outcome
of the appeal from the underlying judgment, without prejudice to revisit the
motion once the appellate process was complete. On July 10, 2012, the trial
court granted Appellant’s motion for protective order by staying discovery
during the pendency of the appeal. On January 23, 2013, this Court
affirmed the judgment. See Gleit, supra. Appellant did not file a petition
for allowance of appeal with our Supreme Court.
Thereafter, Gleit resumed seeking discovery and, on June 14, 2013,
filed a third motion for sanctions, seeking attachment and civil contempt.2
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2
Specifically, Gleit requested the trial court to find Appellant in civil
contempt for “failure to answer [Gleit]’s Interrogatories in Aid of Execution,
Request for Production of Documents in Aid of Execution despite entry of an
order sanctioning these defendants to comply.” Plaintiff’s Motion for
Sanctions and Civil Contempt, 6/12/13, at 1-2. Additionally, on August 12,
2013, Gleit filed a motion to compel Appellant to attend deposition after
Appellant failed to attend a deposition Gleit scheduled for June 21, 2013.
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Appellant’s attorney responded, and a hearing on this motion was held
August 26, 2013. At the contempt hearing, the trial court received
testimony from Appellant but declined to impose the requested sanctions.
Instead, the trial court afforded Appellant yet another opportunity to comply
with the discovery sought in aid of execution of the judgment against her.
The trial court instructed counsel for Gleit to produce a list of specific
questions for Appellant regarding various properties she owned, and
Appellant was ordered to provide complete answers within one week of her
receipt of the list. The trial court further directed Appellant’s counsel to act
on her behalf to ensure compliance with the order, and the trial court
notified Appellant that her failure to comply would result in sanctions against
her nearing the amount of the judgment.
Subsequently, on August 29, 2013, Appellant’s counsel filed a petition
to withdraw. A hearing was held on September 19, 2013 to assess
Appellant’s compliance with the court order, at which time the trial court
found Appellant had not complied with the court order and imposed
sanctions, as Gleit did not receive any response from Appellant.3
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3
The trial court docket does not contain an entry indicating a hearing was
scheduled for September 19, 2013. However, the caption on the September
19, 2013 hearing transcript indicates the proceeding was a hearing on a
motion for sanctions. Furthermore, the trial court docket indicated a hearing
on Appellant’s counsel’s petition to withdraw was scheduled for October 8,
2013. That hearing was cancelled and not rescheduled. On September 3,
2013, Appellant, through her counsel, filed a response to Appellee’s motion
(Footnote Continued Next Page)
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On October 16, 2013, counsel’s petition for leave to withdraw was
granted without a hearing. The order further stated, “[t]he sanctions
imposed on [Appellant] continue at $1000.00 (One Thousand Dollars) per
day until the Court Order of August 26, 2013 is complied with. [Appellant]
was notified at the September 19, 2013 hearing that no delay of execusion
[sic] or compliance with the August 26, 2013 Order would be granted.” Trial
Court Order, 10/16/13.
On October 23, 2013, Appellant filed the instant appeal. 4 On October
24, 2013, the trial court filed another order, finding that Appellant had not
complied with the court order of August 26, 2013, and imposing the afore-
described sanctions until Appellant complies.5
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(Footnote Continued)
to compel deposition asking the trial court, inter alia, to stay all proceedings
on this motion to compel deposition while the trial court considered the
petition to withdraw. On September 5, 2013, the trial court docket reflects a
motion to compel deposition filed on behalf of Appellee was assigned to the
trial court.
4
Pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), the trial
court ordered Appellant to file a statement of matters complained of on
appeal. Appellant timely complied. The trial court did not file a 1925(a)
opinion.
5
Appellant appeals from the “October 16, 2013 order, amended October
2[4], 2013.” Appellant’s Brief at 1. The record reveals Appellant was found
to be in violation of the trial court’s order, and sanctions were imposed from
the bench at the hearing on September 19, 2013. The order signed on
October 16, 2013, references that pronouncement, but does not itself
affirmatively impose the sanctions. Pa.R.A.P. 301(c) provides, “a direction
by the lower court that a specified judgment, sentence, or other order shall
be entered, unaccompanied by actual entry of the specified order in the
(Footnote Continued Next Page)
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[U]pon consideration of [Gleit]’s Motion for
Sanctions, and upon finding that the [Appellant] has
failed to comply with this Court’s Order of August 26,
2013, it is hereby ORDERED and DECREED that
sanctions are imposed upon [Appellant] to pay
[Gleit] the amount of $1000.00 per day from
September 5, 2013 until [Appellant] complies with
the Order of August 26, 2013 by providing full and
complete answers to the requests set forth in
counsel’s letter of August 28, 2013.
Trial Court Order, 10/24/13.
On appeal, Appellant raises two issues for our review.
[1] Did the conduct of [Appellant] rise to the level of
contempt warranting a sanction of $1000 per day?
[2] Did the trial court act appropriately by denying
the request of [Appellant] for an extension of the
sanction hearing to obtain alternative counsel?
Appellant’s Brief at 1-2.
It is well established that “[t]he appealability of an order directly
implicates the jurisdiction of the court.” Bailey v. RAS Auto Body, Inc.,
85 A.3d 1064, 1067 (Pa. Super. 2014) (citation and quotation marks
omitted). Therefore, before turning to the merits of these claims, we must
first determine if the order in question is subject to our review. “As a
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(Footnote Continued)
docket, does not constitute an appealable order. Any such order shall be
docketed before an appeal is taken.” Instantly, we conclude the order finding
Appellant in civil contempt and imposing sanctions was the trial court’s
October 24, 2013 order. However, Pa.R.A.P. 905(a)(5) provides, “[a] notice
of appeal filed after the announcement of a determination but before the
entry of an appealable order shall be treated as filed after such entry and on
the day thereof.” Therefore, we have corrected the caption to reflect the
order appealed from as the order of October 24, 2013.
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general rule, only final orders are appealable, and final orders are defined as
orders disposing of all claims and all parties.” In re Bridgeport Fire
Litigation, 51 A.3d 224, 229 (Pa. Super. 2012) (citation omitted); See
Pennsylvania Rule of Appellate Procedure 341.
“Generally, discovery orders are deemed interlocutory and not
immediately appealable because they do not dispose of the litigation.”
Doughery v. Heller, 97 A.3d 1257, 1261 (Pa. Super. 2014) (en banc)
(citations omitted). “An order compelling discovery is not a final order.”
Gormley v. Edgar, 995 A.2d 1197, 1200 (Pa. Super. 2010) (citation
omitted). However, “[a]n order of contempt is final and appealable when
the order contains a present finding of contempt and imposes sanctions.” In
re K.K., 957 A.2d 298, 303 (Pa. Super. 2008) (citation omitted). See also
Stewart v. Foxworth, 65 A.3d 468, 470-471 (Pa. Super. 2013) (concluding
“[a]n order imposing sanctions … is considered a final order and is therefore
appealable”) citing Rhoades v. Pryce, 874 A.2d 148, 151 (Pa. Super. 2005)
(en banc), appeal denied, 899 A.2d 1124 (Pa. 2006). Nevertheless, “under
prevailing Pennsylvania law[,] a civil contempt ruling with sanctions
involving discovery orders remains interlocutory and not immediately
appealable,” and will not be reviewed prior to judgment on the underlying
action. Stahl v. Redclay, 897 A.2d 478, 487 n.2 (Pa. Super. 2006),
(citations omitted) appeal denied, 918 A.2d 747 (Pa. 2007).
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In support of this Court’s jurisdiction, Appellant posits, “[t]his [o]rder
is not interlocutory or premised during the discovery period of the underlying
litigation.” Appellant’s Response to Rule to Show Cause, 4/10/14, at 2. She
asks this Court to review the merits of her claims because, she contends,
our decision in Christian v. Pennsylvania Financial Responsibility
Assigned Claims Plan, 686 A.2d. 1 (Pa. Super. 1996), permits an appeal
of an order on a motion for discovery sanctions to be taken after final
judgment has been docketed. Id. at 1-2. In Christian, this Court
addressed whether a trial court’s decision on a motion for sanctions pursuant
to Pa.R.C.P. 4019(d) was a final appealable order. The rule provides for
sanctions under certain conditions when a party has failed to make
requested admissions that are subsequently proved at trial. See Pa.R.C.P.
4019(d). The Christian Court concluded that, because a motion for
sanctions under Rule 4019(d) could only be brought after judgment, “it is
essentially a discrete proceeding which ends upon the issuance of an Order
granting or denying sanctions; litigation is then concluded and the litigant is
out-of-court.” Christian, supra at 4.
Instantly, Appellee’s motion for discovery under Rule 3117 similarly
could only be brought after judgment in the underlying case. Accordingly,
we conclude that the instant civil contempt action for disobedience of the
trial court’s orders pertaining to compliance with Appellee’s Rule 3117
discovery request is a discrete action and the trial court’s October 24, 2013
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order is a final appealable order. Although not explicit in its order, we deem
the trial court’s action in this case as a proceeding in civil contempt.
If the dominant purpose is to vindicate the dignity
and authority of the court and to protect the interest
of the general public, it is a proceeding for criminal
contempt. But where the act of contempt
complained of is the refusal to do or refrain from
doing some act ordered or prohibited primarily for
the benefit of some private party, proceedings to
enforce compliance the decree of the court are civil
in nature.
Stahl, supra at 486. “[T]he purpose of a civil contempt order is to coerce
the contemnor to comply with a court order.” Orfield v. Weindel, 52 A.3d
275, 279 (Pa. Super. 2012). Further, “in civil contempt, the contemnor is
able to purge himself of the contempt … that is, he may relieve himself of
the sanction by complying with the court’s order.” Gunther v. Bolus, 853
A.2d 1014, 1018 (Pa. Super. 2004) (internal quotation marks and citation
omitted), appeal denied, 853 A.2d 362 (Pa. 2004).
In the instant case, the discovery sought was in aid of execution of a
judgment against Appellant. The trial court found Appellant “failed to
comply” with a court order and directed Appellant to pay Gleit. Trial Court
Order, 10/24/13. Therefore, the proceedings were undertaken to enforce
compliance with discovery orders for Gleit’s benefit in executing a final
judgment. See Stahl, supra. Appellant may also relieve herself of the
sanction imposed by complying with the order to respond to the requested
discovery, and thus purge the contempt. See Gunther, supra.
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Having concluded this appeal is properly before us, we now turn to the
merits of Appellant’s claims. “When considering an [o]rder holding a party
in contempt for failure to comply with a court [o]rder, our scope of review is
narrow: we will reverse only upon a showing the court abused its discretion.”
Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013) (citations omitted).
In considering a challenge to a finding of civil contempt, we recognize the
following.
Each court is the exclusive judge of contempts
against its process. The contempt power is essential
to the preservation of the court’s authority and
prevents the administration of justice from falling
into disrepute. When reviewing an appeal from a
contempt order, the appellate court must place great
reliance upon the discretion of the trial judge.
Id. (citations omitted). In order to sustain a finding of civil contempt, three
elements must be established by a preponderance of the evidence: “(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
was volitional; and (3) that the contemnor acted with wrongful intent.” Id.
(quoting Stahl, supra at 489).
We conclude all three elements have been met in this case. Appellant
acknowledges her attendance at the August 26, 2013 hearing and the trial
court’s order to respond to the discovery posed by Gleit. Appellant’s Brief at
4. At the hearing, the trial court specifically announced the consequence of
Appellant’s failure to comply. “[W]hat I am going to do is issue a sanction
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and the sanctions will probably come somewhere in the amount of the
judgment ….” N.T., 8/26/13, at 27.6 Appellant argues that her failure to
respond to the discovery request was because she was not comfortable
providing answers without the assistance of her attorney. Appellant’s Brief
at 6; N.T., 9/19/13, at 12-13.
This argument lacks merit. Appellant’s counsel was present and still
representing her at the hearing on September 19, 2013. As the trial court
observed, “[t]he petition to withdraw doesn’t have anything to do with the
compliance with the [c]ourt’s order to answer the questions.” Id. at 13.
Counsel’s petition to withdraw was not granted until October 16, 2013.
Moreover, the record is replete with orders compelling this Appellant to
comply with discovery long before the issue of her representation arose.
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6
The original certified record did not contain the transcripts of the hearings
at issue in this case. The importance of the certified record was discussed at
length in Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 1996) (en
banc), appeal denied, 916 A.2d 632 (Pa. 2007). In this case, Appellant
makes specific citations to notes of testimony.
If, however, a copy of a document has been placed
into the reproduced record, or if notes of testimony
are cited specifically by the parties or are listed in
the record inventory certified to this Court, then we
have reason to believe that such evidence exists. In
this type of situation, we might well make an
informal inquiry to see if there was an error in
transmitting the certified record to this Court.
Preston, supra at 8 (citation omitted). Having been able to obtain the
missing transcripts, we decline to find her issues waived on this basis.
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See, e.g., Trial Court Order, 3/27/12; Trial Court Order, 5/24/12. Each
time, Appellant failed to comply with the orders of the court. The trial court
made a specific finding that Appellant was unwilling to comply with the order
and provide requested discovery. N.T., 9/26/13, at 16. It is clear the trial
court found Appellant’s noncompliance to be both volitional and with
wrongful intent. See Habjan, supra.
Appellant asserts it is evident that the trial court found her in civil
contempt. Appellant’s Brief at 18. She argues, in the alternative, the trial
court’s sanction constituted a finding of criminal contempt without due
process because of her inability to pay the amount imposed. Id. at 19. As
noted, the dominant purpose of the proceedings was to coerce Appellant into
complying with discovery for the benefit of Gleit, so the order is one of civil
contempt. See Orfield, supra. Further, the Appellant is able to comply
with the court order by responding to the requested discovery and avoid the
monetary sanctions. See Gunther, supra. Accordingly, we conclude the
trial court did not abuse its discretion in its finding of civil contempt.7
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7
Appellant also argues the trial court abused its discretion in its manner of
imposing sanctions for discovery violations without considering the
appropriate factors. Appellant’s Brief at 9, 13-14. We note the cases relied
on for this proposition concern the imposition of sanctions for pre-trial
discovery violations pursuant to Pa.R.C.P. 4019. As we conclude the trial
court has found Appellant in civil contempt in order to enforce compliance
with its orders, Appellant’s argument fails.
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In her second issue, Appellant claims the trial court erred in not
granting her a continuance to obtain new counsel. We begin by noting,
“[t]his Court reviews a trial court’s decision to grant or deny a continuance
for an abuse of discretion.” Ferko-Fox v. Fox, 68 A.3d 917, 925 (Pa.
Super. 2013) (citation omitted). Further, “[a]n abuse of discretion is more
than just an error in judgment and, on appeal, the trial court will not be
found to have abused its discretion unless the record discloses that the
judgment exercised was manifestly unreasonable, or the results of partiality,
prejudice, bias or ill-will.” Id.
Appellant argues that “[s]he was … entitled to representation at the
hearing to determine whether sanctions should be imposed for her failure to
respond to interrogatories and … whether the court were [sic] going to
determine [Appellant] should be held in civil or criminal contempt.”
Appellant’s Brief at 22. In denying Appellant’s request the trial court stated,
“[y]ou are represented by counsel. You are represented by competent
counsel. You were represented on [August 26, 2013]. It would have been a
simple matter for you to comply with the order. You haven’t complied with
it.” N.T., 9/19/13, at 9. Appellant’s counsel was not released from the case
until October 16, 2013, he was present at the hearing on September 19,
2013, and the trial court found him to be competent counsel. Under these
facts, we cannot conclude the trial court’s denial of a continuance was
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manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
See Ferko-Fox, supra.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion in finding Appellant in contempt and imposing sanctions
without granting her a continuance. Accordingly, the trial court’s October
24, 2013 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2014
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