J-A21033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LEO GIBNEY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
EVOLUTION MARKETING RESEARCH,
LLC,
Appellee No. 3146 EDA 2014
Appeal from the Order entered September 29, 2014,
in the Court of Common Pleas of Montgomery County,
Civil Division, at No(s): 2012-10933
BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2015
Leo Gibney (“Appellant”) appeals pro se from the trial court’s order
sanctioning him for contempt relative to discovery propounded by Evolution
Marketing Research, LLC (“Evolution”). We affirm.
Appellant presents two issues on appeal:
1. Was proper procedure followed for a contempt finding, both
criminal and civil, when Appellant, following a rule to show cause
why he should not be held in contempt, motioned for clarification
and was provided no clarification? There was no petition for
contempt by Evolution. Was it also unreasonable and an abuse
of discretion to immediately imprison Appellant at the September
29, 2014 contempt hearing and argument, without giving
Appellant an opportunity to make a $500 sanctions purge
payment, even though the contempt order was written in such a
way that Appellant could avoid imprisonment by making an
immediate payment prior to the 90 day sentencing?
*Former Justice specially assigned to the Superior Court.
J-A21033-15
2. Was [sic] the $500 sanctions (from a previous order), which
[Appellant] had to pay to Evolution’s lawyers to be released from
prison, unreasonable, rooted in error of law?
Appellant’s Brief at 4 (emphasis in original).
Initially, we assert our jurisdiction. In Rhoades v. Pryce, 874 A.2d
148 (Pa. Super. 2005), we expressed:
“An appeal may be taken only from a final order, unless
otherwise permitted by rule or statute.” Hoffman v. Knight, 823
A.2d 202, 205 (Pa. Super. 2003); Pa.R.A.P. 341(a), 42 Pa.C.S.A.
Generally, an order finding a party in contempt is interlocutory
and not appealable unless it imposes sanctions. Wolanin v.
Hashagen, 829 A.2d 331, 332 (Pa. Super. 2003). An often
litigated issue in this area involves conditional sanction orders.
Id. Such orders impose a sanction, but also include a purge
condition, that is, a means of avoiding the sanction. Id.
When a contempt order that imposes sanctions also
contains a purge condition, the purge condition does not
transform a final, appealable order into one that is
interlocutory. If that were the case, a contemnor in a civil
contempt action would not be able to appeal the contempt
order until he/she was incarcerated or had paid the sums
owing as sanctions for contempt. It seems inappropriate
and unnecessarily harsh for a contemnor in a civil
contempt action to undergo incarceration or fulfill another
sanction before this Court will accept an appeal of a
contempt order. Rather, we conclude that, for a contempt
order to be properly appealable, it is only necessary that
the order impose sanctions on the alleged contemnor, and
no further court order be required before the sanctions
take effect.
Id. at 332-333 (emphasis added), quoting Foulk v. Foulk, 789
A.2d 254, 258 (Pa. Super. 2001) (en banc).
Rhoades v. Pryce, 874 A.2d at 151.
Here, the trial court referenced the appealability of this action. See
Trial Court Opinion, 3/24/15, at 26 n.4, citing inter alia Stahl v. Redcay,
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J-A21033-15
897 A.2d 478, 487 n.2 (Pa. Super. 2006) (“The Superior Court has noted in
dicta ‘that under prevailing Pennsylvania law a civil contempt ruling with
sanctions involving discovery orders remains interlocutory and not
immediately appealable.’”). However, in Stahl, our Court, citing a 1987
quashal opinion, nonetheless recognized that “unusual circumstances” may
warrant our review of “discovery or sanction orders prior to a final judgment
in the main action.” Stahl, 897 A.2d at 487 n.2 citing Markey v. Marino,
521 A.2d 942, (Pa. Super. 1987). Based on the factual and procedural
history of this action as reflected in the record and set forth in the trial
court’s opinion, we conclude, as the trial court surmised, that “this matter
involves unusual circumstances,” such that we will consider Appellant’s
claims of error. See Trial Court Opinion, 3/24/15, at 26 n.4.
In reviewing Appellant’s issues, we are mindful that “[o]ur scope of
review when considering an appeal from an order holding a party in
contempt of court is narrow[.]” Diamond v. Diamond, 792 A.2d 597, 600
(Pa. Super. 2002). We recognize that we may only reverse a contempt
order “upon a showing of an abuse of discretion.” Id. Likewise, “[o]ur
standard of review of issues concerning sanctions is one of abuse of
discretion by the trial court.” Ace American Insurance Company v.
Underwriters at Lloyds & Co., 939 A.2d 935, 945 (Pa. Super. 2007)
(citation omitted). It is well-settled that an abuse of discretion exists only
where the trial court’s determination overrides or misapplies the law, its
judgment is manifestly unreasonable, or the result of partiality, prejudice,
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J-A21033-15
bias, or ill-will. See Majczyk v. Oesch, 789 A.2d 717, 720 (Pa. Super.
2001). “Generally, courts are afforded great discretion in fashioning
remedies or sanctions for violations of discovery rules and orders.” City of
Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary), 985
A.2d 1259, 1269 (Pa. 2009) (citations omitted).
Mindful of the foregoing, we have considered Appellant’s two issues as
we examined the certified record and applicable jurisprudence. In doing so,
we have determined that Appellant’s claims of trial court error lack merit.
We further find that The Honorable Thomas P. Rogers, sitting as the trial
court, has authored a comprehensive, thorough and well-reasoned opinion,
citing to the record and relevant case law in addressing Appellant’s
challenges to trial court’s order sanctioning him for contempt, such that
further commentary by this Court would be redundant. We therefore adopt
Judge Rogers’ March 24, 2015 opinion as our own in affirming the
September 29, 2014 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
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Received 05/06/2015
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Superior 07/28/2015
Court Eastern
04:07
District
PM
Filed 05/06/2015 Superior Court Eastern District
3146 EDA 2014
IN THE SUPERIOR COURT OF PENNSYLVANIA
PHILADELPHIA DISTRICT
No. 3146 EASTERN DISTRICT 2014
LEO GIBNEY,
Appellant,
v.
EVOLUTION MARKETING RESEARCH, LLC,
Appellee
INITIAL BRIEF OF APPELLANT
On Appeal from Judgment of Sentence b y t h e C o u r t o f
C o m m o n P l e a s o f M o n t g o m e r y C o u n t y entered on
September 29, 2014 (Rogers J.) and the Order directing
Appellant to pay sanctions to Evolution’s attorneys (July
30, 2014, Rogers J.).
Leo Gibney
Pro Se
27 E Central Ave
D7
Paoli PA, 19301
Tel: 610-563-0762
Dated: May 7, 2015
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Table of Contents
TABLE OF AUTHORITIES ........................................................................................................................... iii
STATEMENT OF JURISDICTION ................................................................................................................ 1
ORDERS/DETERMINATIONS IN QUESTION ............................................................................................. 1
STATEMENT OF SCOPE AND STANDARD OF REVIEW ............................................................. 1
STATEMENT OF QUESTIONS INVOLVED ..................................................................................... 4
STATEMENT OF THE CASE .............................................................................................................. 4
FORM OF ACTION AND PROCEDURAL HISTORY OF THE CASE .......................................... 4
STATEMENT OF FACTS ...................................................................................................................... 9
SUMMARY OF ARGUMENT .............................................................................................................. 9
ARGUMENT ......................................................................................................................................... 10
I. THE TRIAL COURT FAILED TO FOLLOW PROPER PROCEDURE IN A FINDING
OF CONTEMPT, COMMINGLED CRIMINAL AND CIVIL CONTEMPT, AND DID NOT
GIVE APPELLANT AN OPPORTUNITY TO AVOID IMPRISONMENT BY PAYING
$500 TO EVOLUTION’S COUNSEL, BELYING THE WORDING OF THE CONTEMPT
ORDER. THERE WAS NEVER A PETITION FOR CONTEMPT BY EVOLUTION. ...... 10
II. THE TRIAL COURT’S SANCTIONS AGAINST APPELLANT, ORDERING HIM
TO PAY $500 TO EVOLUTION’S LAWYERS FOR HIS CONTINUED OBJECTIONS TO
PRODUCING DISCOVERY, WERE UNREASONABLE AND AN ABUSE OF
DISCRETION ROOTED IN ERROR OF LAW. THE TRIAL COURT SANCTIONED
APPELLANT AND COMPELLED HIM TO ANSWER DISCOVERY QUESTIONS
WHEN THE TRIAL COURT KNEW AND ACKNOWLEDGED THERE WERE NO
MATERIAL FACTS FOR EVOLUTION’S COUNTERCLAIMS. THE TRIAL COURT
ALSO SANCTIONED APPELLANT FOR NOT ANSWERING DISCOVERY
QUESTIONS THAT WERE TRULY IMPOSSIBLE FOR APPELLANT TO ANSWER. ... 16
CONCLUSION ...................................................................................................................................... 19
CERTIFICATE OF SERVICE…………………………………………………………………….20
APPENDIX WITH INDEX……………………………………………………………………21
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Table of Authorities
Barrett v. Barrett, 368 A. 2d 616 - Pa: Supreme Court 1977 ................................................. 3, 15
COM. EX REL. HEIMBROOK v. Heimbrook, 441 A. 2d 1242 - Pa: Superior Court 1982 .......... 1, 2
Crislip v.Harshman, 365 A. 2d 1260 - Pa: Superior Court 1976 ................................................... 3
Diamond v. Diamond, 792 A. 2d 597 - Pa: Superior Court 2002 ............................................. 1, 3
Gunther v. Bolus, 853 A. 2d 1014 - Pa: Superior Court 2004. ..................................... 1, 2, 13, 15
Lachat v. Hinchliffe, 769 A. 2d 481 - Pa: Superior Court 2001 ................................................. 1, 3
Lachat v. Hinchliffe, 769 A.2d 481, 487 (Pa.Super.2001)............................................................ 2
McMahon v McMahon, 706 A. 2d 350 - Pa: Superior Court 1998 .............................................. 3
Rhoades v. Pryce, 874 A. 2d 148 - Pa: Superior Court 2005 ........................................................ 2
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STATEMENT OF JURISDICTION
This is a direct appeal from a final order of the Court of Common Pleas, Mo nt gome r y
County (2012-10933), f i n d i n g A p p e l l a n t i n c o n t e m p t , sentencing Appellant to 90 days
imprisonment, and ordering Appellant to pay $500 sanctions to Evolution’s lawyers in order to be
released from prison. Jurisdiction is founded at 42 Pa.C.S.A. § 742. (see Diamond v. Diamond,
792 A. 2d 597 - Pa: Superior Court 2002)
ORDERS/DETERMINATIONS IN QUESTION
The Order appealed from was entered by the Court of Common Pleas (Rogers J.),
on S e p t e m b e r 2 9 , 2 0 1 4 , sentencing Gibney to 90 days imprisonment for contempt (Dkt
#159) and the order directing Gibney to pay $500 sanctions to Evolution’s lawyers (Dkt# 133),
which Gibney had to pay to be released from prison.
STATEMENT OF SCOPE AND STANDARD OF REVIEW
1. Contempt orders imposing sanctions are reviewable final orders.
“When a contempt order that imposes sanctions also contains a purge condition, the purge
condition does not transform a final, appealable order into one that is interlocutory. If that were
the case, a contemnor in a civil contempt action would not be able to appeal the contempt order
until he/she was incarcerated or had paid the sums owing as sanctions for contempt. It seems
inappropriate and unnecessarily harsh for a contemnor in a civil contempt action to undergo
incarceration or fulfill another sanction before this Court will accept an appeal of a contempt
order. Rather, we conclude that, for a contempt order to be properly appealable, it is only
necessary that the order impose sanctions on the alleged contemnor, and no further court order
be required before the sanctions take effect.” See Rhoades v. Pryce, 874 A. 2d 148 - Pa: Superior
Court 2005
2. Review centers on abuse of discretion, unreasonableness, and errors of law in the
contempt/sanctions orders.
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“Our scope of review when considering an appeal from an order holding a party
in contempt of court is narrow: We will reverse only upon a showing of
an abuse of discretion.” See Diamond v. Diamond,792 A.2d 597, 600 (Pa.Super.2002).
“The court abuses its discretion if it misapplies the law or exercises its discretion in a manner
lacking reason.” (emphasis added). See Lachat v. Hinchliffe, 769 A.2d 481, 487
(Pa.Super.2001).
3. Contemnors should be given an opportunity to make an immediate payment to purge contempt
and avoid imprisonment, which was not done in the instant case, despite the wording of the
contempt order to the contrary.
“While a coercive sentence is wholly appropriate in this case, the record does not support, and
the trial court did not find, a present ability on the part of appellant to purge himself by
making an immediate payment of $250.00. Consequently, the sentence appears to be punitive
and not coercive.” (emphasis added) See COM. EX REL. HEIMBROOK v. Heimbrook, 441 A.
2d 1242 - Pa: Superior Court 1982
“The typical sanction for civil contempt is remedial in nature. For example, a court may require
the contemnor to compensate the opposing party for losses incurred as a result of the violation
or reimburse the party's attorneys' fees and costs. It is also common in civil contempt for a court
to impose a conditional prison sentence, giving the contemnor an opportunity to purge the
contempt and avoid the sentence by compensating the opposing party, paying counsel fees, or
doing some other affirmative act within a certain time period.” Gunther v. Bolus, 853 A. 2d
1014 - Pa: Superior Court 2004.
4. Civil vs criminal contempt must not be “commingled,” as was done here, as the two have
different procedural standards.
“In determining whether a contempt proceeding is criminal or civil, a court must look to
whether its dominant purpose is to punish for the violation of a court order or to coerce the
contemnor into compliance with the order. It is well-settled that where the dominant purpose of
the contempt proceeding is to aid a private litigant or interest rather than to vindicate the
authority of the court or to protect the public interest, the contempt is civil…. Furthermore, it is
clear that even where the same facts might give rise to criminal as well as civil contempt, each
has its own distinct procedures and confers distinct procedural rights; the two may not be
casually commingled.” See Barrett v. Barrett, 368 A. 2d 616 - Pa: Supreme Court 1977
The trial court erred in not following the “5 step” and other proper procedures in a finding for
contempt. (See Lachat v. Hinchliffe, 769 A. 2d 481 - Pa: Superior Court 2001, McMahon v
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McMahon, 706 A. 2d 350 - Pa: Superior Court 1998, Crislip v.Harshman, 365 A. 2d 1260 - Pa:
Superior Court 1976.).
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STATEMENT OF QUESTIONS INVOLVED
1. Was proper procedure followed for a contempt finding, both criminal and civil, when Appellant,
following a rule to show cause why he should not be held in contempt, motioned for
clarification and was provided no clarification? There was no petition for contempt by
Evolution. Was it also unreasonable and an abuse of discretion to immediately imprison
Appellant at the September 29, 2014 contempt hearing and argument, without giving
Appellant an opportunity to make a $500 sanctions purge payment, even though the
contempt order was written in such a way that Appellant could avoid imprisonment by
making an immediate payment prior to the 90 day sentencing?
2. Was the $500 sanctions (from a previous order), which Gibney had to pay to Evolution’s
lawyers to be released from prison, unreasonable, rooted in error of law?
STATEMENT OF THE CASE
This is an appeal from the order (Dkt# 159) of the trial court finding Gibney in
contempt, sentencing him to 90 days imprisonment and requiring him to pay $500 sanctions to
Evolution’s attorneys, from a previous order, in order to be released.
FORM OF ACTION AND PROCEDURAL HISTORY OF THE CASE
1. Appellant initiated this action in May 2012 with a wrongful termination suit against
Evolution Marketing Research, LLC (“Evolution”). He alleges he was wrongfully
terminated in violation of public policy for refusing to engage in a planned fraudulent
billing scheme against Merck & Co., Inc.
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2. Evolution filed preliminary objections, which were overruled. It was ordered to answer the
complaint.
3. Evolution answered On October 11, 2012 (Dkt# 21) and also filed six counterclaims
against Appellant: defamation, commercial disparagement, conversion, tortious
interference with existing contracts, tortious interference with prospective contracts, and
misappropriation of trade secrets. Gibney answered and denied all counterclaims.
4. Gibney seeks to subpoena Merck witnesses who should be supporting Evolution’s
counterclaims, if they had merit. Evolution objects and seeks to quash. Eventually, on
December 4, 2013, after more than six months and a letter to the trial court from Appellant,
two of the motions to quash were granted and two denied.
5. Appellant motions to amend complaint to include an abuse of process counterclaim against
Evolution with respect to its counterclaims.(Dkt # 75, April 18, 2013) Appellant argues
they are meritless and brought forth for an improper purpose. Appellant properly pleads
the three components of abuse of process. Evolution objects to the proposed amendment.
The trial court grants Appellant’s motion to amend.
6. Appellant motions for summary judgment on Evolution’s counterclaims, clearly
demonstrating the absence of material facts and evidence (Dkt # 96, August 14, 2013).
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7. The trial court denies the MSJ as “premature.” The trial court, citing summary judgment
rule 1035.2 with respect to discovery relevant to the motion, opines that the time to dismiss
claims due to lack of specificity and material facts is with preliminary objections. The trial
court further opines that if Appellant does not like the fact that Evolution objects to
producing evidence/material facts for its counterclaims during discovery, Appellant must
motion, presumably successfully, to compel Evolution to produce material facts of
wrongdoing by Gibney and not motion for summary judgment.(Dkt# 114, December 13,
2013). This is court-ordered masochism.
8. Gibney motions for reconsideration (Dkt # 117) pointing out the error of law with respect
to summary judgment and material facts. Gibney calls-out how Evolution objected to
producing, as just one example, evidence of tortious interference by Gibney, stating also in
the record that any such evidence is “not available.” Evolution objected to producing
evidence of harm and loss for all of its counterclaims. The trial court denied the motion for
reconsideration without opinion. (Dkt # 122, January 28, 2014).
9. Evolution motions for sanctions against Gibney for objecting to producing discovery with
respect to its counterclaims. Gibney continues to object due to the complete absence of
any evidence, which the trial court is aware of and acknowledged in its opinion denying
Gibney’s MSJ. Gibney continues to object, making the same argument about the absence
of evidence. Eventually, Gibney is sanctioned and is ordered to pay $500 to Evolution’s
lawyers. (Dkt #133, May 19, 2014). Notably, the trial court continues to deny Evolution
summary judgment on its counterclaims due to Gibney’s continues objections and their
multiple motion filing. The trial court is aware that Evolution has produced no evidence.
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10. After a third motion for sanctions, Gibney is ordered to pay the previous $500 sanctions to
Evolution’s lawyers by August 8, 2014. The court has, at this point, accepted Appellant’s
responses to discovery requests. (Dkt # 140, July 30, 2014)
11. Appellant sent a letter to J Rogers asking for postponement of payment of the sanctions
until a final order has been rendered, or to reconsider and vacate the sanctions order. The
trial court dockets the letter as a motion for reconsideration on the sanctions and denies it
(Dkt # 141, August 11, 2014, attached).
12. Two weeks after denying the above reconsideration motion, August 25, 2014, the trial
court sets a rule return date of September 15, 2014 for Appellant to show cause why
Appellant should not be held in criminal contempt (“to vindicate the authority of the
court”). (Dkt # 145). There were no intervening motions by Evolution for contempt.
13. Appellant motions for clarification (Dkt # 151, September 15, 2014), as the rule order is
unclear about what specifically Appellant had done to warrant the threatened criminal
contempt. Appellant had responded to discovery requests and the court accepted the
responses, as stated in this motion. There were no motions for contempt by Evolution.
14. The trial court responds the next day (Dkt # 154) by referring to the previous sanctions
order, but does not clarify or state for the record what Gibney had done that is criminally
contemptible, instead ordering that a hearing and argument “if necessary” will be held on
September 29, 2014.
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15. The hearing and argument occur on September 29, 2014, with the record still unclear about
what specifically Gibney had done to warrant criminal contempt. Argument takes place,
rehashing the same issues of lack of material facts and Gibney’s objections to producing
discovery (which, by this point, Gibney has produced, as noted in the motion for
clarification, Dkt# 151) and why sanctions are an abuse of discretion. The trial court never
asked Appellant a single question, for the record, during the September 29
hearing/argument, including whether he did pay or would pay the $500 sanctions.
16. At the end of the argument, the trial court read from the bench. Multiple court officer have
entered the room. As soon as the trial court utters the word “imprisonment” in the finding
of contempt, Gibney is surrounded by court officers, ordering him to stand up, hold hands
together, etc., while the trial court is still reading the order from the bench. Gibney is never
given an opportunity to purge the contempt (whether civil or criminal or both is unclear as
the two are inappropriately commingled) and avoid imprisonment by paying $500 to
Evolution’s lawyers, despite the wording of the order to the contrary. Gibney is taken to
prison from the courthouse and was not able to make a phone call for 24 hours to try to
secure his release from prison.
17. This timely appeal followed on October 8, 2014.
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STATEMENT OF FACTS
Since the relevant facts are procedural, for ease of review, they are discussed in the body
of this Brief.
SUMMARY OF ARGUMENT
The trial court abused its discretion and did not follow proper procedure in finding Appellant
in contempt, sentencing him to 90 days imprisonment, and requiring him to pay $500 to Evolution’s
lawyers from a previous order imposing sanctions (Dkt # 159).
The trial court ordered appellant to show cause why he should not be held in criminal
contempt (Dkt# 145). Appellant motioned for clarification to understand specifically why he would
be held in contempt, i.e., what Gibney did or did not do that would warrant this threatened contempt
(Dkt#151). The trial court responded to the motion for clarification (Dkt # 154), but did not clarify,
nor deny the motion, instead scheduling a hearing and argument for September 29, 2014.
There was never a petition for contempt by Evolution.
On September 29, 2014 the hearing was held. At the end of the hearing/argument, the trial
court read from the bench. The trial court found Gibney in contempt—both criminal and civil
(improper commingling)-- and Gibney was immediately handcuffed—while the court was still
reading the order from the bench-- and taken from the courtroom. Gibney was given no chance to
avoid imprisonment, despite the wording of the contempt finding and order (Dkt #159), which
explicitly stated that Gibney could purge the contempt and avoid imprisonment if he paid Evolution’s
lawyers $500, prior to the 90 day prison sentence. A transcript from the hearing reveals that the trial
court read this from the bench. However, Gibney did not hear it because he was simultaneously
obeying orders from court room guards (“stand up,” “put your hands together,” etc.) while the trial
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court was reading from the bench. The trial court never ordered the guards to stop handcuffing and
talking to Gibney so he could hear what he was reading. The trial court never asked Gibney a single
question during the hearing resulting in the contempt finding and immediate imprisonment. The
order was hand delivered to Gibney while being held in a retaining cell awaiting transport to prison.
Gibney read it, saw that it stated he could purge the contempt and avoid prison by paying the $500
sanctions. He approached the guards retaining him who simply shrugged their shoulders and said
there was nothing they could do about it. Two hours later, Gibney was handcuffed, placed in chains
around his waist and ankles and transported to prison. Gibney was not permitted to make a phone call
for 24 hours to tell someone where he was and to try to get the $500 to Evolution’s lawyers.
As Gibney had to pay $500 to Evolution’s counsel from a previous sanctions order to be
released from prison and purge the contempt, that sanctions order is now appealable. The $500
sanctions was unreasonable and an abuse of discretion, rooted in the misapplication of the law. The
sanctions stemmed from Gibney’s objections to providing discovery with respect to Evolution’s
counterclaims, when the trial court was aware of—and acknowledged—that there were no material
facts for Evolution’s counterclaims against Gibney. The sanctions were also unreasonable because
the trial court compelled Gibney to answer questions that were truly impossible for Gibney to
answer, strongly suggesting that the trial court never read Evolution’s discovery requests, or
Gibney’s responses, despite multiple oral arguments on the matter stemming from multiple motions to
compel and for sanctions.
ARGUMENT
I. THE TRIAL COURT FAILED TO FOLLOW PROPER PROCEDURE IN A
FINDING OF CONTEMPT, COMMINGLED CRIMINAL AND CIVIL
CONTEMPT, AND DID NOT GIVE APPELLANT AN OPPORTUNITY TO
AVOID IMPRISONMENT BY PAYING $500 TO EVOLUTION’S COUNSEL,
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BELYING THE WORDING OF THE CONTEMPT ORDER. THERE WAS
NEVER A PETITION FOR CONTEMPT BY EVOLUTION.
On August 25, 2014, the trial court issued an order to Appellant to show cause why he should
not be held in criminal (“vindicate the authority of the Court”) contempt (Dkt# 145). Appellant
motioned for clarification to understand specifically why he would be held in contempt, i.e., what
Gibney did or did not do that would warrant this threatened criminal contempt (Dkt#151). A review
of the record will reveal it is unclear.
The trial court responded to the motion for clarification (Dkt # 154), but did not clarify, nor
deny the motion, instead scheduling a hearing and argument for September 29, 2014, referencing a
previous $500 sanctions order. At no time was there a petition for contempt, or any other motion, by
Evolution.
On September 29, 2014 the hearing was held, presumably to argue why Appellant should or
should not be held in criminal contempt. A transcript of the September 29 hearing demonstrates that
most of the time was spent arguing Gibney’s previous motion for summary judgment and the absence
of material facts for Evolution’s counterclaims, and Gibney’s objections to producing discovery for
Evolution’s counterclaims when the trial court was aware of and acknowledged the absence of
material facts (discussed below with respect to the $500 sanctions).
The trial court never asked Gibney, for the record, if he paid $500 to Evolution’s counsel from
a prior sanctions order or if he would. There was never a petition for contempt. On page 32 of J
Rogers opinion, he acknowledges he never asked Gibney, stating the following:
“In addition, and contrary to his contention otherwise, there was no reason to ask Dr.
Gibney whether he had paid the five hundred dollar sanction when Counsel for
Evolution made it clear that he had not received it.”
Thus, according to the trial court, there is no reason to ask someone he is about to imprison,
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for the record, if they obeyed an order or not, or give them one more chance to do so to purge the
contempt and avoid imprisonment (despite the wording of the order finding Gibney in contempt,
which belies this). Instead, the word of opposing counsel, who never petitioned for contempt in the
first place, is sufficient. Reviewing the transcript of the September 29, 2014 hearing and argument,
this Superior Court will note that the trial court never asked Appellant a single question during the
hearing, prior to sentencing Appellant to prison.
At the end of the hearing/argument, the trial court read from the bench. The trial court found
Gibney in contempt—both criminal and civil (improper commingling)-- and Gibney was immediately
handcuffed—while the court was still reading the order from the bench-- and taken from the
courtroom. Gibney was given no chance to avoid imprisonment, despite the wording of the contempt
finding and order (Dkt #159), which explicitly stated that Gibney could purge the just announced
contempt finding and avoid imprisonment if he paid Evolution’s lawyers $500, prior to the 90 day
prison sentence. A transcript from the hearing reveals that the trial court read this from the bench.
However, Gibney did not hear it, because, as soon as the word “imprisonment” was read, he
was immediately surrounded by court officers, obeying orders from them (“stand up,” “put your
hands together,” “I don’t know what’s wrong with these handcuffs, etc.) while the trial court was
reading from the bench. The trial court never ordered the guards to stop talking and handcuffing
Gibney so he could hear what Rogers was reading from the bench. The entire scene was
prearranged and the trial court never intended to give Gibney an opportunity to purge the contempt
and avoid prison, despite the contempt order, deceptively written to appear that Gibney could avoid
imprisonment by paying Evolution’s lawyers $500 immediately. On page 27 of his opinion, the trial
court cites applicable law about giving the contemnor an opportunity to purge the contempt and avoid
imprisonment. However, Judge Rogers utterly avoids discussing the fact that he himself did not do
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so. See Gunther v. Bolus, 853 A. 2d 1014 - Pa: Superior Court 2004.
The contempt order was later hand delivered to Gibney while being held in a retaining cell
awaiting transport to prison. Gibney read it, saw that it stated he could avoid prison by paying the
$500 sanctions. He approached the guards retaining him who simply shrugged their shoulders and
said there was nothing they could do about it. Gibney had no cell phone, as all of his possession were
taken, and was not permitted to make a phone call. Two hours later, Gibney was handcuffed, placed
in chains around his waist, chained and shackled around his ankles and transported to prison. Gibney
was not permitted to make a phone call for 24 hours—to his lawyer, family member, or employer-- to
tell someone where he was and to try to get the $500 to Evolution’s lawyers.
The trial court erred in not following the 5 step procedure for a contempt
finding and in commingling criminal and civil contempt. As noted, the August 25, 2014 order
to Gibney to show cause also threatened criminal contempt (“to vindicate the aut hority of the
court.”). Below is from the transcript of the September 29 hearing finding Gibney in contempt.
13
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Oibae~ ••. S•oiutioo Nacketinq Aeeearoh, LLC
rt'• Ord•rs, which have been done In b,1d r e r e n , <1nrJ
• cle•r and un=istak~blc pur~ose ot underm1n1nq
authori:y ~r this Court. r !ind t,Jm tn conLcmpt
and an Order will now be enterod co
lndic•te the ~Uthority of thi~ court, and tho Order
Mnd now this 29th day of
Septe:2-her. 20J..l, th~ Couc~ having set a Rule Retu:::1
Date and Hear,ng to Shew Cause as to why Leo Gibney
should r.o: be held in cor.te~pt of this Court's Ocd~:s
directing Leo Gibney to pay cocnsel fees and costs to
f;v;:,lu:ion Markec:1r.;i !p<)Jld tu tlli> h11errogatory. Sec ~1-
CONCLUSION
For all of above reasons, this Court should vacate the trial court’s orders finding Gibney in
contempt and sanctioning him $500 and all other relief as justice requires, including dismissing
Evolution’s counterclaims against Gibney.
Respectfully submitted,
Leo Gibney, Pro se
19
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Initial Brief of Appellant was served
by electronic mail upon the following person:
Dennis Mulgrew, Esq.
Drinker Biddle & Reath, LLP
One Logan Square, Ste 2000
Philadelphia, PA 19103
Dennis.Mulgrew@dbr.com
Dated: May 6, 2015
Leo Gibney
20
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APPENDIX INDEX
1. Opinion of trial court
2. Statement of matters complained of on appeal
3. Order directing Appellant to show cause why he should not be held in criminal
contempt
4. Appellant’s motion for clarification on above order
5. Order finding Appellant in contempt
6. Letter to J Rogers requesting postponement of sanctions or reconsideration of
sanctions. Docketed as a motion for reconsideration by trial court and denied (Dkt
# 14
21
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:;//·~against his former employer, Appellee Evolution Marketing Research, LLC
("Evolution"),alleging wrongful termination. Evolution filed preliminary
objections on May 21, 2012, which this court overruled after hearing oral
argument by order dated September 21, 2012. Evolution filed an answer
with new matter and counterclaims on October 11, 2012. Evolution
alleged defamation, commercial disparagement, tortious interference with
existing contractual relations, tortious interference with prospective
contractual relations, misappropriation of trade secrets and conversion.
Evolution sought compensatory, consequential as well as punitive
·. . . .-v :",
damages, plus attorney fees and injunctive relief. (Answer of Defendant
Evolution Marketing Research, LLCwith New Matter and Counterclaims,
filed 10/11/12, at Dkt. No. 21). Dr. Gibney did not file preliminary
objections to the counterclaims. Instead, on October 17, 2012, Dr. Gibney
filed an answer to Evolution's new matter and counterclaims asking the
court to dismiss "the hopelessly vague and redundant Counterclaims in
their entirety". (Answer of Plaintiff to New Matter and Counterclaims of
Defendant Evolution Marketing Research, LLC,filed 10/ 17/ 12, at p. 17).
On February 13, 2013, Dr. Gibney filed a document entitled Motion
for Summary Judgment· and Memorandum of Law in Support of Motion.
The motion sought summary judgment on Dr. Gibney's wrongful
termination claim based upon his assertion and belief that officers of
Evolution had made multiple false statements under oath. (Motion, filed
2
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~ · ·. · 2/ 13/ 13, at Dkt. No. 57). Dr. Gibney did not provide the court with a
memorandum of law or cite to a single statute, case or rule. (See id.). On
February 21, 2013, Evolution filed a motion to compel Dr. Gibney's
resporises to its interrogatories and document requests served on
December 21, 2012. In what would become a familiar refrain, Evolution
claimed Dr. Gibney "refused to provide· any substantive response to some
· of the most basic and relevant interrogatories ... [and] refused to produce
(qr even identify...) a single document in response". (Motion to Compel,
filed 2/21/13, at .,r,r 4-10) (emphasis in original). On March 15, 2013,
Evolution filed their opposition to Dr. Gibney's motion for summary
judgment on his wrongful termination claim and a cross-motion on that
,:·
. :·· ,·.
claim. Recognizing the existence of issues of fact and challenges to
credibility, Dr. Gibney responded that Evolution's cross-motion should be
denied. (Gibney'sAnswer to Evolution's Cross-Motion, filed 3/ 18/ 13).
On June 28, 2013, the undersigned granted Evolution's motion to
compel responses to interrogatories and document requests. The court's
order directed Dr. Gibney to "provide full, complete and verified Answers
.. : .·
to the Interrogatories" and "full and complete Responses of Documents"
., . : and "specifically to those deficiencies identified in [Evolution's] Counsel's
February 11, 2013 correspondence to [Dr. Gibney]." (order docketed
6/28/ 13).
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., ,i
.. Followingargument on July 1, 2013, and upon review of the record,
this court denied both Dr. Gibney's motion and Evolution's cross-motion
.for summary judgment on July 11, 2013. Also on July 11, 2013, the
undersigned granted Dr. Gibney's motion to amend his answer to
Evolution's counterclaims with a counterclaim by Dr. Gibney alleging
abuse of process. Dr-. Gibney filed this motion on April 18, 2013. On
August 14, 2013, Dr. Gibney filed a motion for summary judgment on
Evolution's counterclaims. Evolution responded on September 13, 2013.
On the same day, Evolution filed its first motion for sanctions against Dr.
Gibney as a result of his refusal to comply with this court's June 28, 2013
) ·.
order granting Evolution's motion to compel. On December 11, 2013, the
court, held a hearing on Evolution's first motion for sanctions. The
undersigned prefaced the hearing as follows:
Perhaps a brief explanation is in order. We just completed a
motion for sµmm'aryjudgment [argument), which was not a
matter of record, arid now we have a court reporter here. The
reason for that is· I treat all motions for sanctions as a record
.·-proceeding;because it could go to the next stage of contempt
if .I rule that in that direction after considering everything. I
always want-a matter of record beforehand, because I treat
orders ofthe Court not as being [precatory],but obligatory.
(Notes of Testimony Hearing ("N.T.")Re: Motion for Sanctions, 12/ 11/ 13,
. \
at p. 2). Later in the proceeding, the followingexchange occurred:
. MR.GI~NEY: Thank you, Your Honor.
If I could just note at the beginning that obviously,
since this is a\notion for sanctions, it's obviously a serious
matter.
-?· 4
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THE COURT: It's very serious with me. I've been told that
if you go on Google, there's people in there that have been
incarcerated by me who say what they feel about that. So I
take this very seriously, a sanctions motion.
As I said, when I was a lawyer and now as a judge,
orders are supposed to be followed.
MR. GIBNEY: Yes, sir.
(Id. at 17).
A sample of reasons for Dr. Gibney's refusal to provide responses to
discovery includes:
MR. GIBNEY: I'm sorry.
This is part of my response to Interrogatory No. 1, letter
•,',· I.
D.
-.~ "When Gibney requested that Evolution provide
material facts related to his counterclaims as required by law,
Evolution refused."
We've already gone through that with my motion. And I
think that my motion for summary judgment, to the extent
that the Court agrees at some level with me, then the Court
will see that there's significant overlap here, because I am
refusing and objecting to provide information when I have
DO idea why they want it.
That's the overriding theme of my objections: Why do
they want this? What is the claim or claims that are at issue
here for why you want this information?
* * * *
That's my response. And then I cite Pennsylvania Rules of
Civil Procedure 1019(a), requires fact pleading. The purpose
of 1019 is to require the pleader to disclose the, quote,
material facts sufficient to enable the adverse party to
prepare his case.
5
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THE COURT: Well, respectfully, that 1019 applies to the
attachment of documents to a complaint.
* * * *
"Gibney is not aware of any documents that Evolution
does not already have. Evolution must specify which
counterclaims it is referring and state the material facts
supporting the counterclaim. Gibney incorporates all the
objections noted in responses to interrogatories regarding
Evolution's failure to provide the specificity and material
facts."
So I'm objecting. With objecting, I'm saying I'm not
aware of any documents that Evolution does not have.
* * * *
"Objection: Overly broad and vague, beyond the scope of
discovery, is riot reasonably calculated to lead to the discovery
of admissible evidence. What is the claim here and what is
the basis for that claim? Not waiving the objection, Gibney
has no hard copy of any such documents and has never
shared any such 'documents with any third party."
So -- and if I had them --
THE COURT: So you're telling me that you don't have
that?
MR. GIBNEY: I don't have hard copy of anything.
THE COURT: Well, that's a different statement.
(Id. at 23, 37, 55 and 62-63) (emphasis added).
On December 16, 2013, the court issued an order denying Dr.
Gibney's motion for summary judgment on Evolution's counterclaims as
premature. On December 20, 2013, the court issued a detailed order,
docketed on December 23, 2013, which directed Dr. Gibney to provide
6
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complete and verified answers and responses to specific interrogatories
and requests in accordance with the Pennsylvania Rules of Civil Procedure
within thirty (30) days. The order also provided as follows:
At the time of Argument, the Court made it explicitly clear to
both [Dr. Gibney) and Defense Counsel that the conduct
displayed in this process thus far is unacceptable. The Court
has now explained to [Dr. Gibney] what is expected in
response to discovery requests and the actions by Defense
Counsel at times have been unacceptable "gamesmanship".
The Undersigned has no objection, and it has demonstrated in
the past, in other matters, to impose Sanctions, Contempt
and if necessary, imprisonment in order to purge the
Contempt[.)
(December 20, 2013 order at ,i 7).
On December 31, 2013, Dr. Gibney filed a "Memorandum of Law in
Support of Motion for Reconsideration on the Order Denying Gibney's
Motion for Summary Judgment on Evolution's Counterclaims". Therein,
Dr. Gibney did not present any new facts or law as required to support
reconsideration. Instead, Dr. Gibney presented the novel argument that
he was entitled to summary judgment because Evolution had not
produced "sufficient material facts to support its counterclaims" before the
relevant discovery had been completed. (Id. at p. 3). In fact, he
proclaimed, "[t)here is no requirement for Gibney to produce discovery."
(Id.) (emphasis in original). The court denied Dr. Gibney's motion by order
on January 28, 2014.
On February 25, 2014, Evolution filed a second motion for
sanctions. Prior to filing the motion, Counsel for Evolution attempted to
J • ~- '; '. ·~ -~- .
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7
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explain in an email to Dr. Gibney why his reliance on Ertel v. Patriot-News
Company, 544 Pa. 93, 674 A.2d 1038 (1996), for the refusal to respond to
Evolution's discovery requests was misplaced. (Email dated February 4,
2014, Motion for Sanctions filed 2/25/ 14, Exhibit F). In its motion,
Evolution requested dismissal of Dr. Gibney's wrongful termination claim,
the entry of default judgment on Evolution's counterclaims and the
payment of reasonable costs and fees as sanctions for Dr. Gibney's willful
violation of the court's very specific orders. Evolution also reiterated that
the court had explicitly warned Dr. Gibney about the imposition of
sanctions in two court orders as well as at the discovery management
conference on December 30, 2013. (Motion,filed 2/25/ 14, at p. 9, n. l).
The court conducted a hearing on Evolution's second motion for
sanctions on April 17, 2014. At the beginning of the hearing, the
undersigned explained as follows:
THE COURT: What I need you to do for me is -- because
if [Dr: Gibney] doesn't satisfy me correctly and I find him in
contempt, he's. going to jail -- I made it very clear to both of
you -- until the contempt is purged. I don't take orders to be
[precatory] or optional. They're mandatory. And I have put
lawyers in jail and I've put other people in jail who don't get it.
So what you need to do for me is be very clear on
exactly what you contend that [Gibney] did not respond to
and was therefore in violation of my order.
(N.T.Hearing Re: Sanctions, 4/ 17/ 14, at p. 8).
Following the detailed explanation by counsel of what he asserted
Dr. Gibney had done or not done to comply with the court's orders, Dr.
8
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Gibney was afforded the opportunity to respond. Portions of his argument
include:
MR. GIBNEY: I complied with your order - - your order
said to offer responses that are in compliance with federal --
. with Pennsylvania Rules of Civil Procedure. That was the
order.
I didn't necessarily -- I did not interpret the order as
overruling my objections per se. I interpreted the order, as it
said, full and complete responses that are in compliance with
Pennsylvania Rules of Civil Procedure.
* * * *
· I complied J,y obj~cting, because I don't know why I have
to. answer tiiat question.
* * * *
Counsei indicated before that basically one of the reasons that
they don't know what my defamatory comments were is
. because I haven't produced any discovery: That is an
astounding response.
What was [the] law requires is that because I am the
deferidant i-- ·1 have to emphasize that here. This is their
counterclaims against me. I am the defendant. It is their
obligation to. tell me what defamatory statement or what
defamatory writing, which would be libel in that case -- what
it was so that I can prepare my case. Here what they are
essentially saying is. that they don't know what the defamatory
statements or' remarks are because I haven't produced
discovery.. That simply is not how the law works.
THE COURT: I disagree.
* * * *
So you say that that's complied with my order of
December _J
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MR. GIBNEY: My response is in compliance were [with
· the) Pennsylvania Rules of Civil Procedure.
THE COURT: I disagree.
* * * *
MR. GIBNEY: As with all of these where I objected, I don't
know what claim or counterclaim this applies to.
* * * *
I have an objection. I refer to the Third Circuit and the
Supreme Court \decisions and noted my objections to
interrogatories pertaining to any counterclaims by Evolution
based on nothing 'more than information and belief and for
which there wefo no material facts.
* * * *
MR. GIBNEY: Your Honor, my responses to Evolution's
interrogatories and document requests are in compliance with
Pennsylvania Rules of Civil Procedure.
THE COURT: _. No, they're not. They're not. And I've read
this. I've spent time. You can argue that to me, but they're
not, and so you need to understand that. That's what I'm
telling you. They're not in compliance with the Pennsylvania
Rules .of Civil Procedure, Dr. Gibney. You need to know that
right now op-the record.
MR. GIBNEY: May I continue?
* * * *
'·
The law requires, Your Honor, that Evolution adduce
material facts for its counterclaims. If there are no or
insufficient . materf_al-facts, ' the law requires that the
co11nterclaims be dismissed.
* * * *
In the absence of material facts for damages, Rule 1035
'requires dismissal of Evolution's claims. In addition, the
10
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Supreme Court of Pennsylvania in Ertel u. Patriot News
further explains that the defendant, who does not bear the
burden of proof at trial, is not required to produce
discovery prior to the plaintiff' producing material facts of
harm and damages.'
(Id. at 40-42, 45, 54-55) (emphasis added).
Dr. Gibney also asked, should the court impose sanctions, that the
court explain "what the material facts are supporting Evolution's
counterclaims and that for each and every objection (he] articulate[d) to
discovery requests, the Court articulate why it is overruling (his] objection
and how the discovery sought is relevant to any claim or counterclaim in
this action". (Id. at 58, 65-66).
On May 16, 2014, the undersigned issued a detailed order finding
Dr. Gibney in violation of the court's December 20, 2013 order and
explaining why Dr. Gibney's position on discovery was unfounded and
incorrect. In addition, the court ordered Dr. Gibney's previous objections
stricken, that "(Dr. Gibney] SHALL provide specific, complete and verified
Answers [and all relevant documents in his possession) ... or risk sanctions
upon application, including but not limited to dismissal of the wrongful
termination claims, a default judgment on the counterclaims as well as an
award of reasonable costs and fees". (Order: Motion for Sanctions Against
Plaintiff/Counterclaim Defendant Leo Gibney Under Rule 4019, docketed
5/ 19/ 14) (emphasis in original). Finally, the court ordered Dr. Gibney "to
pay Counsel fees and costs to [Evolution] for the filing of this second
11
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· . ~~ ·,
.-.·. ~ ... ~;/ ~·,
Motion for Sanctions in the amount of Five Hundred Dollars ($500.00)".
(Id. at p. 4). The court granted Dr. Gibney twenty (20) days to comply with
the order. (Id.).
After unsuccessfully attempting to obtain an answer regarding the
court ordered discovery responses and payment of the Five Hundred
•.
Dollars ($500.00) from Dr. Gibney by email exchange, Counsel for
Evolution filed a third motion for sanctions on June 13, 2014. (Third
Motion for Sanctions, filed 6/ 13/ 14, Exhibit C). Evolution again sought
the dismissal of Dr. Gibney's wrongful termination claim, an entry of
default judgment on Evolution's counterclaims and an award of
reasonable attorneys' fees and costs. (Motion, filed 6/ 13/ 14, at p. 1).
Evolution noted that Dr. Gibney was "in contempt of this Court under
either the civil or criminal standard, as the orders compelling his
responses and the sanctions payment are explicitly clear; his disobedience
is willful rather than unintentional; and his own stated reason for not
complying with the orders is his denial of the authority of this Court (i.e.,
his belief that the Court's previous decisions were "wrong.")". (Id. at p. 7,
n. 3).
The undersigned presided over the hearing on Evolution's third
motion for sanctions under Rule 4019 on July 11, 2014. Counsel for
Evolution explained their perceived deficiencies in Dr. Gibney's answers
,.
;
12
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. ...
and responses supplied on Monday, July 7, 2014. In sum, Counsel
argued as follows:
So, Your Honor, just to summarize, one of two things is
going on here: The first -- and I'm pretty positive this is
what's going on here -- this is just another version of I'm not
producing any discovery to you. I don't like the rules of the
court, I don't believe in the rules of the court, and I'm going to
followmy own rules. I'm not going to give you anything. . ..
And whether he tells us directly, I'm not going to produce the
documents, as he's done three times and kept doing until this
Monday, or whether he just says these false statements that
he doesn't know as another way to get the Court off his back
or· us off his back, it doesn't matter; he's still refusing to
participate in discovery.
And at this poirit, there's no other remedy other than to
dismiss his claims and grant a default judgment on our
claims.
The only other possible answer, Your Honor, is that he's
actually being truthful that he really doesn't know who has
knowledge of his claims, that he really can't recall who he
talked to about the supposed fraud or his termination -- all
these topics thatare at the heart of his case, he just really
doesn't know. '. If that's true, then what he's done is highly,
highly prejudicial. We answered -- we filed our answer and
counterclaims in October of 2012. We served him discovery
in December of 2012. His answers were due in January of
2013.
If he really doesn't have the answers to these basic
questions now, he certainly had them back in January of '13.
And by telling us he's not going to respond, by ignoring the
Court's orders; by making up his own discovery rules, by
citing federal law that doesn't apply even in federal court and
then saying, look, 18 months has passed; guess what, I don't
remember anymore, on the most basic and fundamental and
critical issues -- that is so prejudicial that that would -- even
if it's true ...that would warrant dismissal of his claim and a
default judgment on our counterclaims anyway, because the
information is gone.
* * * *
13
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THE COURT: Well, has he had his deposition taken?
MR.WOOLF: We have not been able to take his
deposition.
THE COURT: Why not?
MR.WOOLF: Because we didn't have documents, and we
didn't want to do it twice, Your Honor.
* * * *
The only other thing I was going to say, Your Honor --
and he hasn't addressed it -- there's no justification for not
paying the sanction that Your Honor ordered, the $500
sanction.
THE COURT: I'll deal with that.
(N.T.Hearing on Evolution's Third Motion for Sanctions, 7 / 11/ 14, at 20-
23).
On his own behalf, Dr. Gibney cited Evolution's alleged failure to
respond to his discovery requests as well as the same argument that
Evolution had· not produced any material facts in support of its claims.
For example, Dr. Gibney responded, in part, as follows:
And note, too, that along the way they point out to documents
and things that I didn't request [sic] that they know exist
because they. have it, which raises the question, then what's
the point? If they've got the document, it's already been
submitted, why are they bothering me about it? What's
the problem there?
* * * *
I'm struggling to do the right thing here, Judge, with respect
to the orders against me, the subpoenas and my refusal to
produce discovery. I do not want to disrespect this Court but,
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..
case, because it was only applicable, quote, at the summary
judgment stage, end quote. Respectfully, that revealed a
misunderstanding of summary judgment and when it can
be brought. Summary judgment can be brought forth at any
time. The law is clear on that. In fact, a summary judgment
can be based on the pleading alone, before a stick of discovery
even takes place. Regardless of whether preliminary
objections were filed, whoever filed.
In Ertel -- .... [t]he trial court granted summary
judgment based on a pleading alone, no discovery took place.
* * * *
The point being that not an ounce of discovery took place in
that case. It never went beyond the pleadings themselves.
(N.T. Hearing on Contempt Rule to Show Cause, 9/29/ 14 at 3-4, 8-10)
(emphasis added).
In response, Counsel for Evolution argued in part:
Your Honor has been advising [Dr. Gibney] of sanctions
initially since May. Your Honor then ordered him twice on
two separate occasions to pay the money. There's no doubt
that he hasn't complied. There's no doubt that he was
ordered to pay this money. There's no doubt that he hasn't
done it. There's simply no basis and Dr. Gibney hasn't offered
one today, for not paying it, other than, that he disagrees and
he thinks the counterclaims have no merit.
(Id. at 12).. ·
After hearing argument from both parties, the undersigned detailed
the long procedural history of the discovery dispute and Dr. Gibney's
repeated refusals to comply with this court's orders. (Id. at 22-28). In
closing, the court stated as follows:
[Dr.] Gibney is an individual who is intelligent,
articulate and has a Ph.D. This is not a case of an individual
20
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who does · not understand what these Court Orders direct.
This is not a case where there is an inability to pay. There
have been references to his other clients -- one today -- that
he has been serving. Plus, his request of August 8, 2014, was
a request for postponement of payment until, what he
clarified, as the "Final Order" in this action.
As I've stated, the $500.00 sanction can be paid to
Evolution's law firm for his contempt, and his conduct in
causing Evolution's Counsel to file a second Motion for
Sanctions. I've not even addressed what should be done on
the third Motion for Sanctions.
His conduct, has clearly been one willfuland intentional
disobedience to -the Court's Orders, which have been done in
bad faith, and for a clear and unmistakable purpose of
undermining the authority of this Court ....
(Id. at 28-29).
This court found Dr. Gibney m contempt of the Court's May 16,
2014, and July 30, 2014 orders and committed Dr. Gibney to the
MontgomeryCounty Correctional Facility for a period of ninety (90) days
unless Dr. Gibney purged the contempt prior to that time period by paying
the $500.00 sanction to Evolution's Counsel as directed by those prior
court orders. (Order docketed 9/29/ 14). On September 30, 2014,
Counsel for Evolution notified the court that he had been provided with
the -Five Hundred Dollar ($500.00) payment as a sanction for Counsel
having had to file the Second Motion for Sanctions. Accordingly, the
undersigned determined that Dr. Gibney had purged his contempt and
directed the Montgomery County Correctional Facility to discharge him
forthwith. (order docketed 9/30/ 14).
21
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l!t~} .·
-·:·.
Appellant filed a notice of appeal on October 8, 2014. On October
10, 2014, the undersigned issued an order directing Appellant to file and
.·.
serve a Concise Statement of the Errors Complained of on Appeal ("concise
statement"). Appellant filed a concise statement on October 27, 2014.
III. ISSUES
Appellant raises the followingissues on appeal:
1. The trial court erred in not following the "5 step"
procedure in a contempt finding. (See Lachat v.
Hinchliffe, 769 A.2d 481 - Pa: Superior Court 2001,
McMahon v. McMahon, 706 A.2d 350 - Pa: Superior
Court -1998, Crislip v. Harshman, 365 A.2d 1260 - Pa:
Superior Court 1976.). The immediate prison sentence
, on September 29 (Dkt# 159) was unreasonable and an
abuse of discretion. The order for the Sept. 29, 2014
argument and hearing "if necessary" (Dkt# 154) followed
fromGibney's motion for clarification (Dkt# 151).
2. The trial court erred in not giving Gibney the
opportunity to make an immediate payment of the $500
sanctions on Sept. 29 in order to avoid imprisonment
(see Lachat at 489, Rhoades v. Pryce, 874 A.2d 148,
151 Pa.Super:2005 (en bane), see Hyle v. Hyle, 2005 PA
Super 50 - Pa: Superior Court 2005). Judge Rogers
never asked Gibney, for the record, if he even made the
payment in the first place. There was no petition for
contempt.
3. The contempt finding and imprisonment were
unreasonable and an abuse of discretion because
Gibney did not act with wrongful intent. Gibney wrote a
letter to Ju~ge Rogers asking for postponement of the
\· -- $500 sanctions payment until a final order in the
action, as the "initial sanctions order was interlocutory .
. ··,;.-ii
·.:_;_>-=·
22
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. . . . _:_.~~:.-·. j-i~ . . ··. ; .\,; :
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held in contempt in an answer, Dr. Gibney chose instead to file a motion
for clarification on the rule return date. Finally, again on September 29,
2014, Dr. Gibney had the opportunity to be heard in a full hearing on the
rule to show cause. His defense was consistent, albeit baseless and
legally unsupported. Accordingly, Dr. Gibney's complaints about due
process are devoid of merit.
This court found Dr. Gibney's willful defiance of two very clear
orders intentional and a direct affront to the court's authority. It is clear
from the record that Dr. Gibney desires to serve as the referee in his own
case, a position reserved for the trial judge. As a sanction for the finding
of civil contempt, the court ordered Dr. Gibney to commitment in the
county facility for a period of ninety (90) days unless he purged that
..- .........
.. ,,· 1'
·=j:
(_., ;,.-.· contempt by paying the sanction this court originally imposed on May 16,
2014. Dr. Gibney never asserted an inability to pay. In addition, and
contrary to his contention otherwise, there was no reason to ask Dr.
Gibney .whether he had paid the Five Hundred Dollar ($500.00) sanction
when Counsel for Evolution made it clear that he had not received it.
(N.T. Hearing, 9/29/ 14, at p. 12). Dr. Gibney had notice of the discovery
sanction, was afforded several opportunities to pay the sanction and
willfully refused to do so because he insisted and continues to insist that
the court was wrong and he was right. His appeal warrants no relief.
32
; '• ..
. • · ~~::-·- ", ·i~~ :.:::./• ... -·.-~-, .... :,;. . -,._- . _,
Circulated 07/28/2015 04:07 PM
·V. CONCLUSION
Based upon the reasoning set forth herein, the undersigned
respectfully requests that the September 29, 2014 order holding Dr.
Gibney in contempt of court be affirmed.
BY THE COURT:
Copies of the above Opinion
sent on 03/24/15 to the following:
By First-Class Mail:
'Leo Gibney, Plaintiff Pro Se
'David J. Woolf,Esquire, Counsel for Defendant,
Evolution Marketing Research, LLC
Dennis M. Mulgrew,Jr., Esquire, Counsel for Defendant,
Evolution Marketing Research, LLC
33
i
:]~},\7;,J~\~]f~i~t\ ~ . '· .:.,-:-
Circulated 07/28/2015 04:07 PM
2
2
Circulated 07/28/2015 04:07 PM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA
LEO GIBNEY,
CIVILACT. NO.
Plaintiff/ Counterclaim 2012-10933
Defendant
v.
EVOLUTION MARKETING RESEARCH,LLC
Defendant/ Counterclaim
Plaintiff
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
Leo Gibney hereby complains of the following matters in connection with the appeal of
the contempt order in the above-captioned matter:
1. The trial court erred in not following the “5 step” procedure in a contempt finding.
(See Lachat v. Hinchliffe, 769 A. 2d 481 - Pa: Superior Court 2001, McMahon v. McMahon,
706 A. 2d 350 - Pa: Superior Court 1998, Crislip v. Harshman, 365 A. 2d 1260 - Pa: Superior
Court 1976.). The immediate prison sentence on September 29 (Dkt# 159) was unreasonable
and an abuse of discretion. The order for the Sept. 29, 2014 argument and hearing “if
necessary” (Dkt#154) followed from Gibney’s motion for clarification (Dkt# 151).
2. The trial court erred in not giving Gibney the opportunity to make an immediate
payment of the $500 sanctions on Sept. 29 in order to avoid imprisonment (see Lachat at 489,
Rhoades v. Pryce, 874 A.2d 148,151 Pa.Super.2005 (en banc), see Hyle v. Hyle, 2005 PA
Super 50 - Pa: Superior Court 2005). Judge Rogers never asked Gibney, for the record, if he even
made the payment in the first place. There was no petition for contempt.
3. The contempt finding and imprisonment were unreasonable and an abuse of
discretion because Gibney did not act with wrongful intent. Gibney wrote a letter to Judge
Rogers asking for postponement of the $500 sanctions payment until a final order in the
1
Circulated 07/28/2015 04:07 PM
action, as the initial sanctions order was interlocutory. Gibney promised to pay if he did not
file a timely appeal of the $500 sanctions, following a final order in this action. Judge
Rogers docketed the letter as a “motion for reconsideration” and denied Gibney’s request.
(Dkt# 141 contains the order and the letter). There was no urgency to this $500 payment for
counsel fees. Denying Gibney’s request for postponement was unreasonable.
4. As Gibney had to pay the $500 sanctions in order to be released from prison, that
sanctions order is now final and appealable. The $500 sanctions was unreasonable and an
abuse of discretion rooted in clear errors of law. The case record leading to the $500
sanctions is reviewable by this appellate Court because it was argued by the parties and the
trial court during the Sept. 29 “if necessary” argument/hearing regarding Gibney’s
contemptible conduct, resulting in Gibney’s imprisonment on that day. Gibney’s motion for
summary judgment on Evolution’s counterclaims (Dkt#96), the order denying the MSJ
(Dkt#114), and Gibney’s motion for reconsideration (Dkt# 117) demonstrate clear errors of
law. If the law had been followed with regard to material facts and summary judgment,
Gibney’s MSJ would have been granted. As a result, Gibney’s objections to producing
discovery based on the absence of material facts, the subsequent sanctions, contempt finding,
and imprisonment, would not have occurred.
5. Judge Rogers stated during the Sept. 29 “if necessary” argument and hearing, prior to
sentencing Gibney to prison, that Gibney had erroneously cited federal law in his objections
to producing discovery. In fact, Gibney cited ample Pennsylvania law (as he did in his MSJ),
including Ertel v. Patriot News Co., 674 A. 2d 1038 - Pa: Supreme Court 1996. During the
Sept. 29 hearing, defending his sanctions against Gibney, his contempt finding, and prison
sentence, Judge Rogers stated that Gibney’s reliance on Ertel was erroneous and did not
support his MSJ on Evolution’s counterclaims and his objections to producing discovery with
respect to Evolution’s counterclaims. Gibney’s Ertel citation was not erroneous and it did
support his MSJ and discovery objections.
6. The trial court otherwise abused its discretion and/or erred as a matter of law in
imposing sanctions, finding Gibney in contempt, and sentencing him to prison.
Respectfully submitted,
Leo Gibney, Pro se
2
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IN Tiff: COURT OF COMMON PL2AS OP MONTGOMERY COUNTY,
PElfNSYLVAJflA
CJVIL AC'flOlf - LAW
ceo 0181f&Y
V. NO iol2·109JJ
HV<)LlrrlON MARKETI NO
------
RE:SE:Al!CH, LLC
111 fl;mi!;~itlRII
~l;t,,lt•'l;H~II" l"J\.~ P"'- ~~11
~.-~rJt"1'~' ,.,.,, ~·
-~--~- \t. l'f-_ ... _
AJfD MOW, lhi,: :25'11 duy of AUl(Ust J.Ot•. a Rule is hcrrb)' enteftd
upon Ihle PIQJnbO' to Show C..,uw •• J.O wh)· l"c rhnnu{( .ahould not bl'
held m contanpt or thu, lonurl"s ,>rders of "-~ay lb, 20\4 nnd .ftlty 30,
20 l4. rtk' Cour\ ht:r~hy -ie,,-. the .RULE RETURN DATE rnr the purpt'lee
or Plaintitl' to f1Je lli!t At1swct ttl!. to why he .!Sltould nut be held for
contempt. TOE ORG[NAL OP W111CH SHALL BE PtLED WITH THE
PROTHOIIOTARY'S Ol'l'ICE, TWO 121 COPIES 1>rov«led ro rhe
CH,UUll!:Rll "' 111• UNDERlllGNW. end ONS II) COPY lo OPP051110
COIINSEL 110_1,ATBRTHIIJ'!JM>.!!D.\)'..JSEPTEMJJIIR, 11$, 2014. Th•
Cuutl bettb\l 3at., AROUMENT and H£.ARUfO, if neeeeserv, Lo OCCUR
on MONDAY. SEPTEMBER ~9, ~014 ill 2::00 P,M, rn COURTROOM
.. a-. MONTGOMERY COUl'TY COURTHOUSI:, Nomtto\Yn,
Tm Pl,MNTIFP 18 HEREBY ON' NOTICE THAT fl' T8E COURT
l'I.NDS THAT PLAINTIFf 18 IN' CONTEMPT 01' TKll ORDER(BI, THE
COURT WILL TAK'.B TH£ .A.Pl'ROPRJATII ACTI.ON TO INSUU THE
·rbli ordtr/judg.mt-ot was d1Jr.kc,1ed and s, .. 1 Oft OS/161201.t punuint to Pa. R... C. P.13b~
Circulated 07/28/2015 04:07 PM
Vll'IDICATION 01' TIU: AUTHORITY OF THE COURT, WHJCH MAY
INCLUDE IMPRISONM&NT UNTIL SUCH TIMll AS THE CONT&MPT IS
PUR08D. TBEREl'OR.E, THE PLAJ\'ITJ;FF(S PLACED 01'1 NOTICE OF
TBE STRONG RECOMMENDATIOl'I TO OBTAIN OOUNS&L. W THE
PLAINTIFF CANNOT AFFORD ro HIRE A t.J\WYER. TH& OFFIC&
UST&D U&LOW MAY BE ABLE TO PROVIDE PLAIHTIJ'F WITIJ
IN.FORMATLOJI ABOUT A.OENCIES THAT MAY OPFER LEOAJ.
SERVJCES TO ELIGIBLE PBRSOIIS AT A RBDUCED FIHt OR N'O f'll:11.
LAW\'llR REFERRAL SERVICE
MON1'00~ COUNTY BAR ASSOCIATION
100 WEST AIRY STREET jREARJ
NORRISTOWN, PA 19401
(601 219-%60, E:li;tih cf Lh,.. &bove Ordet
$en1 on: VS/ .l.S/ J "000•••-•••-•••••-•·•-•-••·•-"•'"•''""'"''-'0'0••••••••••••·••••·-·- --··-·- •••••• '•••••-M•· • •••••••- -- - ---- •-••••••·-••• •• ••' ••••·-- • •-•••- ·•·•-•••··•-•••••••••••• •• -·•-• ,oo, -••••••••••••••- --·•••••• - 0
3. As it relates to Defendant's Request for specific sanctions in
this matter, the Court· GRANTS the Motion in part. Specifically, the Court
hereby ORDERS Plaintiff/Counterclaim Defendant to pay Counsel fees and
costs to Defendant for the filing· of this. second Motion for Sanctions in the
amount of Five Hundred Dollars ($500.00);
4. On numerous occasions the Court made it explicitly clear to
both Plaintiff/Counterclaim Defendant and Defense Counsel that the conduct
displayed in this process thus far is unacceptable. The Court has now twice
explained to Plaintiff/Counterclaim, Defendant what is expected in response to
discovery requests. Both Parties are also on notice that failure to timely
produce · evidence requested by either Party in discovery will result in the
preclusion of that evidence at trial;
5. As it relates to those Interrogatories that the Court directed
more specific Answers and those Requests for Production of Documents in
which the Court directed more specific Responses, Plaintiff/Counterclaim
Defendant shall comply in this regard within Twenty (20) Days of the date of
this Order.
BY THE COURT:
4
(Page 5 of 8)
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Copies of the above Order
-·---·· ·----·- - -- -·- ·senCo1Y 05/t61·t4:-to:···-·- - --· - --- ---·--- · ·· -· - --- --- . ------- -·----·- . . _
By First-Cla~s .Mail:
Leo Gibney, Plaintiff Pro Se -· -·-·-·-· ·---·--·--·--------· ···----·-·- .. · -· ---- - ---·· - ----- -- _-------··--· ·---· ····------- . -·· -·····-··-·· -------·· - · ·-----·- ·-·--- --------· · - ·······-· _
... . . . . . .
David J; Woolf, Esquire, Counsel for Defendant, Evolution Marketing
Research, LLC
Dennis M. Mulgrew, Esquire, Counsel for Defendant, Evolution
Marketing Research, LLC ·
5
(Page 6 of 8)
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(Page 1 of 3)
.,,
--~ ---- -·--- ------~ -- ··------- -----·--·--·- -·· - - -- ---· -- -------------- ··-- - ----------·--·---· ·-···--· . ·--------- ..
IN THE COURT OF COMMON PLEAf --···· ·----~-- ---
. - . I
- ·-·-····-·· ···-----·· · -··· · .- · · -. ·- ··-····-· -· ·-· ·-· · ·····--·--·· ··-· ·--·-···--······· --- - ·-. ····-··-pENNSYL~---·· · · · -·· ··· ----- · ·-·-· ·-· · · ·-·--··.-- .. ·---·- ---·- ·-··· -·-·----·· ·-·-------- ·---·· ··-·--···---·-·-··--
.\__-,-~~~~~~~~~-,-~~~~
CIVIL ACTION - LAW
LEO GIBNEY
v. NO. 2012-1093.3
EVOLUTION MARKETING
RESEARCH,LLC
ORDER: MOTION FOR SANCTIONS AGAINST
PLAINl'IFF/COUNTERCLAIM DEFENDANT LEO GIBNEY
UNDER RULE 4019
AND NOW, this 20th day of December 2013, upon consideration of
Defendant's Motion for Sanctions Against Plaintiff/Counterclaim
Defendant Leo Gibney Under Rule 4019 ("Motionn), the Answers to the
Interrogatories and Responses made to the Request for Production of
Documents by Plaintiff, and Argument heard on Wednesday, December
ll , 2013, it is hereby ORDERED as follows:
1. Defendant shall provide complete and verified Answers
to Interrogatories 1, 3, 8, 9, 10, U and 12 in accordance with the
Pennsylvania Rules of Civil Procedure;
2. As it relates to Defendant's Interrogatory No. 2, · it is
DENIED, as the Court finds that it is overly broad and vague;
3. . As it relates to Defendant's Request for more complete
Responses to Defendant's Request for Production of Documents, it is
· GRANTEP with. respect to Request Nos. 2, 3, 4, 5, 6, 7, 10, 15, 16,
18(b)(c), 19 as to 18(b)(c)(d), 20(c)(d)(e) ONLY, 21 as to 20(c)(d)(e) ONLY,
· This order/judgment was docketed and sent on 12/23/2013 pursuant to Pa. R. C. P. 236.
. ;)
(Page 7 of 8)
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(Page 2 o:f 3)
...
------------ ----- - ---·--- ------ ·_ -----·
39-,--4cY,
··-
22 ,. 23, 24, as, 26, 2.9, 30, 32, 33, 34, 36, 41, 42;~------ -~----~------- -
----··--·-----··--··----------·-·· ··--------·-----·---- --------·-- -------- ------ -·- ...-- ·---·- ---- -----·-··-·--··----··· --·-··· --------- ---------·---·-· -··-- ----------------------· . ----- ···----·--------··-------· ------
4. As it relates to Defendant's Request for tnore complete
Responses to Defendant's Request for Production of Documents, it is
DENIED with respectto Request Nos. 8, 9, 18(a), 19 as it relates to 18(a);
5. Defendant's Request for more complete Responses as
it relates to Request Nos. 28 and 35 were withdrawn by Defendant at the
time of Argument;
6. As it relates to Defendant's Request for specific
sanctions in this matter, it is DEFERRED. Specifically, the Court defers
. .
the issue regarding Sanctions without prejudice to apply Sanctions both
to Plaintiff and Defendant's Counsel for their actions in this matter
should further conduct occur in future issues warranting Sanctions;
7. At the time of the Argument, the Court made it
explicitly clear to both the Pro Se Plaintiff and Defense Counsel that the.
· conduct displayed in this process thus far is unacceptable. The Court
has now explained to Plaintiff what is expected in response to discovery
requests and the actions by Defense Counsel at titnes have been
unacceptable "gamesmanship". The Undersigned has no objection, and
it has demonstrated in the past, in other matters, to impose Sanctions,
Contempt and if necessary, . imprisonment in order to purge the
Contempt;
8. As it relates to those Interrogatories that the Court
directed more specific Answers and those Requests for Production of
2
(Page 8 of 8)
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(Page 3 of 3)
--- -------- --- - ------ -----
Documents in which the Court directed more specific Responses, Plairffiff-- -----
shall comply in this regard within Thirty (30) Days of the date of this
Order and in accordance with the Pennsylvania Laws of Civil Procedure.
BY THE COVRT:
"<;· ....
Copies of the above Order
Sent on 12/20/ 13 to:
By First·Class Mail:
. Leo Gibney, Plaintiff Pro Se
.David J. Woolf, Esquire, Counsel for Defendant, Evolution Marketing
Research, LLC
Dennis M. Mulgrew, Esquire, Counsel for Defendant, Evolution
Marketing Research, LLC ·
3