Gibney, L. v. Evolution Marketing Research

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    J-A21033-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 LEO GIBNEY, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. EVOLUTION MARKETING RESEARCH, LLC, Appellee No. 3146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, -2- 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, -3- 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 -4- Received 05/06/2015 Circulated 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 Circulated 07/28/2015 04:07 PM 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 ii Circulated 07/28/2015 04:07 PM 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 iii Circulated 07/28/2015 04:07 PM 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. 1 Circulated 07/28/2015 04:07 PM “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 2 Circulated 07/28/2015 04:07 PM McMahon, 706 A. 2d 350 - Pa: Superior Court 1998, Crislip v.Harshman, 365 A. 2d 1260 - Pa: Superior Court 1976.). 3 Circulated 07/28/2015 04:07 PM 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. 4 Circulated 07/28/2015 04:07 PM 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). 5 Circulated 07/28/2015 04:07 PM 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. 6 Circulated 07/28/2015 04:07 PM 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. 7 Circulated 07/28/2015 04:07 PM 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. 8 Circulated 07/28/2015 04:07 PM 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 9 Circulated 07/28/2015 04:07 PM 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, 10 Circulated 07/28/2015 04:07 PM 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, 11 Circulated 07/28/2015 04:07 PM 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 12 Circulated 07/28/2015 04:07 PM 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 Circulated 07/28/2015 04:07 PM 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 Circulated 07/28/2015 04:07 PM 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 Circulated 07/28/2015 04:07 PM 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 .·,·, ·\r·.. . ' Circulated 07/28/2015 04:07 PM I ": ;\•\':·:. -··-1111"~·.itBIIU '31111 _- ~ .· ..-.. • .: . . THE COURTOF COMM~:;;~~- CIVIL AC1 2012-10933--0197 3/24/20\5_ I l:07 AM ;: 102296)4 0pm1on Rcpt#Z236 I 571 fo::S0.00 , \lark Levv- \lontCo Prolhonotaf\ LEO GIBNEY SUPERIORCOURT ~f Jf f ·.. _-~ ../-~_:_.~,.:-.'·· :-.<:: --,. · ·--·· iy~,t } .. :-'./.c:: . '-. : · . ·., . ·- ..'EVOLUTION · .c- .< ;_ :-·. ';:;:~-. > MARKETING :.,:;•.; :. !·:{ ........ : \,···...: (:'."., .... ~. ,,,,.. ?~-- • ,.: Circulated 07/28/2015 04:07 PM ~ . ;,~" !):':b~t, :;//·~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 - . : >.~~:. ~:~< /·," .. . ~::: ,(·::\_:_~~;_:: ~.:;··-..., \ .,: . :.~ .• ... , . ·r. ,. ·-i-"''. Circulated 07/28/2015 04:07 PM ~ · ·. · 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). :.., :\ .;(,\:;-\' 3 ~- 1.l t-_. . ,.~·.:~?~ ., · . ;::..J.: •.. , - :;_-_;.. .... . , .• ,\< . h .• -- Circulated 07/28/2015 04:07 PM ., ,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 .-:~ .. .' Circulated 07/28/2015 04:07 PM 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 :r. :,.(: -.~· ... : ~ · .. :«' ~:1\i_:i,; .. • ~· ~· Circulated 07/28/2015 04:07 PM 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 Circulated 07/28/2015 04:07 PM -,· ...... :· . : . . . t\;J-.[:: :. ~. ~ r "• 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 • ~- '; '. ·~ -~- . . :·:.·'::.·.;. ~-- 7 Circulated 07/28/2015 04:07 PM 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 Circulated 07/28/2015 04:07 PM 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 iftJ?tit·, 9 · ·- . . . tr:\ . :~:{~:/.:· tJ,~· J: ~-./..,. :.~ ; ;;.,·1 - :.~. . . -:~.- ·... \.- . · ,.• ~.: -·- .. • ... 1 •. .e .. ·,·~-~:~·- ••'7 ::· .... ,.• .,,,..:.· .,.;·, Circulated 07/28/2015 04:07 PM 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 .. ·, ... , ....... "' . . .. ·~ .. •.. . :<. ·,.··· Circulated 07/28/2015 04:07 PM 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 Circulated 07/28/2015 04:07 PM · . ~~ ·, .-.·. ~ ... ~;/ ~·, 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 _,:.· ·(· .. • •• r..'..: ::·~_: ...~__,_-'. : ' • ~~'"' .. : ••~ 11... :_,~ •· --:- "~; •. v-, _., ·..,..,_.,:..•._ . ,;.: ~. -~ ~. ;.,-·. Circulated 07/28/2015 04:07 PM ~ . . ... 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 :.;.·'... . .. . ~ · .. . -,.·~· . ;' .-i'.'r.z: :;:,.,:.~::;){ r: ,. "'·. . ... _,-" .. ~ ;- . ;.~ ( . Circulated 07/28/2015 04:07 PM 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, 14 .~... ~.s>. · .· ·,·i. i\·..I .e. . . ~ t. Circulated 07/28/2015 04:07 PM .. 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 .- .~. . ._. ··: ...:.Jy".' .... · .. - .. : , . _ ..... ·;,- Circulated 07/28/2015 04:07 PM 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 :..If·,·. Circulated 07/28/2015 04:07 PM 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 ;· '.' ·<.·~: . .:.:· ·',;,; i:~J\)?}:M(.r"'' ····- .. ,. .~ ":'-·= • • . · .... ·-:· :1;~·::. _ :-·· i:-. Circulated 07/28/2015 04:07 PM . . . . _:_.~~:.-·. j-i~ . . ··. ; .\,; : ? -~,;,,~\~1 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 Circulated 07/28/2015 04:07 PM 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) Circulated 07/28/2015 04:07 PM 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) Circulated 07/28/2015 04:07 PM (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) Circulated 07/28/2015 04:07 PM (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) Circulated 07/28/2015 04:07 PM (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