Loading...
HomeMy WebLinkAbout09-20-07 II ESTATE OF LINWOOD B. PHILLIPS, JR. :IN THE COURT OF COMMON PLEAS :OF PENNSYLVANIA - :CUMBERLAND COUNTY ALICE R. PHILLIPS V. ROBERT G. FREY :) ..::0 -::-'1 ~<) '_:-~~~1 <::-:::;> _J Lr;, r'i --(, :NO. 21-06-0122 c-, r"...) o FINAL MEMORANDUM BACKGROUND C,) W The undersigned Judge, President Judge of the 41 st Judicial District, Perry/Juniata Counties, agreed to hear this case specially, arising out of Cumberland County involving an estate matter and the validity of a Pre-Nuptial Agreement signed by the decedent, Linwood B. Phillips, Jr., and his second wife. Decedent had children to a prior marriage and died owning real estate and other assets valued at approximately $40,000,000.00. According to the Pre-Nuptial Agreement, signed by his second wife, who filed the instant law suit attacking the Pre-Nuptial Agreement, which was prepared by an attorney for the decedent alld reviewed by Attorney Karl Rominger on behalf of the second wife. She gave up most of her rights to the Estate of Linwood B. Phillips, Jr., except for a new home in the amount of approximately $300,000.00 and certain lifetime support payments. Suit was filed on behalf of the second wife attacking the Pre-Nuptial Agreement and Attorney Karl Rominger's alleged conflict of interest and lack of competent legal advice in advising the second wife to sign Pre-Nuptial Agreement. Deposition was scheduled for Karl Rominger on two occasions and on the first occasion, he appeared for deposition but declined to testify because of a potential for liability to second wife for a possible legal malpractice suit against him. Apparently, Attorney Rominger did nothing between the first deposition and the second deposition to protect his rights and the day 1 before the second deposition contacted the lawyers for the second wife to indicate that he would not be appearing at the deposition and asked this Court for relief. This Court was unavailable to grant the relief and Attorney Rominger failed to appear at said second deposition upon advice of a malpractice lawyer. This Court held a hearing on the contempt issue, at which time attorney for second wife and Attorney Rominger and the malpractice counsel assigned to this case all presented statements, not under oath, in support of their various positions. After review of statements and the pleadings in this case, this Court found Attorney Rominger in contempt and awarded attorney's fees spent in relationship to the scheduling of two depositions, preparation for same and also attendance at the Contempt Hearing, by second wife's counsel. REASONING According to the Superior Court decision in the Marian Shoo. Inc. v Baird. 670 A2d. 671,673 (Pa. Super. Court 1996), there are three elements necessary to support a Finding of Civil Contempt: "(1) that the Contemnor had notice of the specific Order or Decree, which he disobeyed, (2) that the act constituting the Contemnor's violation was volitional, (3) that the Contemnor acted with wrongful intent." A copy of said decision is attached hereto and marked Exhibit A. A transcript of the hearing held on this contempt matter is attached hereto and marked Exhibit B. The reasoning for this Court's finding of contempt is that Attorney Rominger did not protect his rights between the scheduling of the two depositions but waited until the last minute to obtain a ruling from his Malpractice Insurance Carrier concerning whether or not he should testify at the second deposition. He was advised not to but he certainly had several months before said second deposition to get this opinion, as he was on notice that there 2 was a potential malpractice suit, as a result of this litigation against the Estate. Said suite, by praecipe, was filed and service was made upon Attorney Rominger the day before the second deposition. Attorney Rominger's contempt is supported by the evidence presented at the Contempt Hearing in this matter, in the form of statements of counsel, which indicated that he had notice of the Order of deposition on two occasions, that he failed to act with volition in that he had wrongful intent by not protecting his rights long before the date of the second deposition by filing objections with this Court to said deposition. He failed to do so and such failure constitutes contempt in that the sanctions imposed upon Attorney Rominger were reasonable under the circumstances, being the attorney's fees for the preparation of two depositions and the Contempt Hearing on behalf of his former client, being the second wife of the decedent, Linwood B. Phillips, Jr. C. JOSEPH 41st Judicial rict Specially Presiding September 11, 2007 cc: Neil W. Yahn, Esquire Robert G. Frey, Esquire Karl E. Rominger, Esquire George B. Faller, Jr., Esquire Michael J. Collins, Esquire Hubert X. Gilroy, Esquire George F. Douglas, III, Esquire Thomas F. Flower, Esquire Court Administrator of Cumberland County Court Administrator of Perry County File 3 Get a Document - by Citation - 448 Pa. Super. 52 Page 1 of7 Service: Get by LEXSEE@ Citation: 670 A2d 671 448 Pa. Super. 52, *; 670 A.2d 671, **; 1996 Pa. Super. LEXIS 5, *** THE MARIAN SHOP, INC., T/A & D/B/A J & J CHECK CASHING AND JOHN MACE, AND MARIAN LENTZ v. JOHN BAIRD AND CATHERINE ROBINSON, AND BENEFICIAL SAVINGS BANK APPEAL OF: JOHN BAIRD No. 00205 Philadelphia 1995 SUPERIOR COURT OF PENNSYLVANIA 448 Pa. Super. 52; 670 A.2d 671; 1996 Pa. Super. LEXIS 5 August 9, 1995, Argued January 8, 1996, Filed PRIOR HISTORY: [***1] Appeal from the Order of January 11, 1995 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 631 January Term, 1994. Before O'KEEFE, J. DISPOSITION: Order reversed. CASE SUMMARY PROCEDURAL POSTURE: Defendant individual sought review of the order of the Court of Common Pleas of Philadelphia County, Civil Division (Pennsylvania), which held him in civil contempt for violating an injunction that was issued in favor of plaintiff former business partner, on the grounds that the injunction order had never been formally entered and that defendant did not have actual knowledge of the order. OVERVIEW: Plaintiff former business partner brought a civil action against defendant individual for wrongfully removing money from the business they operated together. Plaintiff requested an injunction. Defendant did not attend the injunction hearing, but his former attorney appeared on his behalf even though he no longer represented defendant. The trial court instructed the parties to agree to the injunction conditions, draft an order, and submit it to the trial court for signature and entry as a formal order. No order was ever received, signed, or entered. Defendant's former counsel notified him and apprised him of the events at the injunction hearing. Defendant cashed a CD and spent the proceeds. The trial court held defendant in civil contempt for violating the injunction proceeding. The court reversed the order, holding that the trial court clearly abused its discretion by holding defendant in contempt, as the injunction order was never reduced to a formal order and did not recite the specific act that defendant was prohibited from committing. Moreover, defendant was not present or represented at the injunction hearing, so he did not have actual knowledge of the order. OUTCOME: The court reversed the order; the trial court abused its discretion in holding defendant individual in civil contempt for violating the trial court's injunction order because the injunction order was never formally entered and it did not specifically state the actions that defendant was prohibited from taking and defendant was not present or represented at the injunction hearing. CORE TERMS: contempt, contemnor, injunction, notice, shelter, decree, civil contempt, https://www.lexis.comlresearch/retrieve?_m=4fOe3 7aO 1796561136fd73d9a50a829c&csvc... 9/13/2007 Get a Document - by Citation - 448 Pa. Super. 52 Page 2 of7 actual knowledge, suitable, corporate assets, dissipated, cashing, contempt order, contempt citations, status quo, notice requirement, specific terms, wrongful intent, written order, noncompliance, preponderance, authoritative, contradictory, fulfilled, believing, directive, requisite, dissipate, unwritten, reliable LEXISNEXIS@ HEADNOTES CttlHlde Civil Procedure> Judicial Officers> Judqes > Discretion ~ CiyiLProcedl..lJe> Remedies> InJl..Il'lctions >Conternpt ~ Governments> Courts> General overview~ HN1~The right to punish for contempt is adherent in all courts. It is a power essential to the preservation of the court's authority and prevents the administration of justice from falling into disrepute. In considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge. The authority of a judge, however, to hold one in contempt, depriving as it does a person of liberty, is an authority that should be used rarely, and with extreme ca ution . More Like This He(;;JdnoJe I $fJeP?fc:ti'?e:Restrict By He(;;Jc:ll'lote Civil Procedure> Remedies> Injunctions> Contempt ..~ CiyiLProcec:lure >S(;;Jnc1;ions > Contempt> CiyiJContempt ~ HN2~Civil contempt has as its dominant purpose enforcement of compliance with an order of the court, for the benefit of the party in whose favor the order runs. The contemnor may eventually purge him/herself by complying with the order. When a party complains that there has been noncompliance with a court order, and that the other party should be held in civil contempt, the complaining party bears the burden of proving the contempt by a preponderance of the evidence. More Like This Headnote I SheDardize: Restrict By Headnote Civil Procedure> Remedies> Injunctions> Contemot *"~ CiyiLProcec:lI..lJe > S(;;Jl'lctions > Contempt > Ciyil Contempt ..~ HN3~There are certain elements necessary to support a finding of civil contempt, namely: that the contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent. The notice requirement may be fulfilled when the contemnor has actual knowledge of the order, despite never having been personally served with the order. Additionally, in cases where the contemnor has this actual knowledge, he/she must also have a reliable authoritative basis for believing that he/she could be held responsible for a failure to comply with the order. More LikeThis He(;;Jc:lnote I SfJePClrc:tize:Res1;rictByHe(;;Jdnote CiyiJProcedl..lre > Remedies> InJl..lnctions > contemPt"~ Civil proc~~ure > s~nctions > Contempt> Civil Contemot ~ HN4~To be punished for contempt, a party must have violated a court order. In order to support a finding of contempt, the order or decree which the contemnor has been held to have violated, must be definite, clear, and specific -- leaving no doubt or uncertainty in the mind of the contemnor of the prohibited conduct. Because the order forming the basis for civil contempt must be strictly construed, any ambiguities or omissions in the order must be construed in favor of the defendant. In such cases, a contradictory order or an order whose specific terms have not been violated will not serve as the basis for a finding of contempt. Additionally, the mere showing of noncompliance of a court order or misconduct, is never sufficient, alone, to prove contempt. More Like This Headnote I Shepardize: Restrict Bv Headnote https://www.lexis.com/research/retrieve?_m=4fOe3 7aO 1796561136fd73d9a50a829c&csvc... 9/13/2007 _ Get a Document - by Citation - 448 Pa. Super. 52 Page 3 of7 Civil Procedure> Remedies> Injunctions> Contempt t:J HN5%,.A party may not be held in contempt of court for failing to obey an order that is too vague or that cannot be enforced. More Like This Headnote COUNSEl.,; Alfred Marroletti, Philadelphia, for appellant. Edward Reif, Philadelphia, for appellees. JUDGES; BEFORE: ROWLEY, PJ., and CIRILLO and HOFFMAN, JJ. HOFFMAN, J., files a Dissenting Statement. OPINION BY: CIRILLO OPINION [*54] [**672] OPINION BY CIRILLO, J.: Filed January 8, 1996 John Baird appeals from an order of contempt entered in the Court of Common Pleas of Philadelphia County. We reverse. A former business partner of John Baird brought a civil action against Baird alleging that he had wrongfully removed money from the check cashing business they operated together. The plaintiff filed an emergency petition asking the court to enter an order enjoining Baird from further depleting the assets of the business while the underlying action was pending. Baird did not attend this hearing, however, Baird's former attorney, Barry Harvis, was present. At the hearing, Harvis notified the court that he would not be representing Baird in the present action, but had attended the hearing to ensure that the status quo would be maintained while Baird secured other counsel for the case. Harvis later telephoned Baird and apprised him of the events [***2] that took place at the injunction hearing. At the hearing, the court requested that the parties agree to conditions for the injunction, draft an order reflecting those conditions, submit the writing to the court for it to be signed, and have it entered on the docket as an enforceable order. Unfortunately, this order was never received by the judge, signed by the court, or entered on the docket. After the injunction hearing, Baird cashed a $ 25,000 CD and spent its proceeds. When it was discovered that Baird had cashed the CD, the court claimed that Baird had dissipated corporate assets in violation of the injunction proceeding, and, accordingly, instituted contempt proceedings. A contempt hearing was held, which Baird attended, where the court found Baird in civil contempt. He was ordered to replace the $ 25,000.00 within two weeks. When the two weeks expired, and Baird had failed to pay the $ 25,000.00, another hearing [*55] was held. After hearing arguments, the court placed Baird in custody. Baird now appeals from the contempt order and presents the following issues for our review: (1) Was there a legal and/or binding order barring appellant's allegedly contumacious conduct [***3] when he negotiated a $ 25,000.00 certificate of deposit on March 8, 1994; (2) Did appellant receive adequate notice of the alleged "order" of January 11, https://www.lexis.com/research/retrieve?_ m=4fOe37aO 1796561136fd73d9a50a829c&csvc... 9/13/2007 Get a Document - by Citation - 448 Pa. Super. 52 Page 4 of7 1994; and (3) Was there substantial, competent evidence before the trial judge from which he could have been convinced beyond a reasonable doubt that the alleged contemnor had the present ability to comply? HN1+rhe right to punish for contempt is adherent in all courts. Appe?JJo{ '-evineJ372 Pa, 612,951\,20222(1953). It is a power [**673] "essential to the preservation of the court's authority and prevents the administration of justice from falling into disrepute." Fisher v.P?JceJ3J6mU,S.155J93L,E:c1,569J69S'mCt.42S(1949). In considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge. Fenstamaker v. Fenstamaker, 337 Pa. Super. 410, 487 A.2d 11 (1985). The authority of a judge, however, to hold one in contempt, "depriving as it does a person of liberty, is an authority that should be used rarely, and with extreme caution." Inrefl1i:1tterofjohnso[),483 Pa. 227, 395 A.2d 1319 (1978). HN2'i'Civil contempt has as its dominant purpose enforcement of compliance [***4] with an order of the court, for the benefit of the party in whose favor the order runs. C.R.ByQunnmV. The Travelers, 426 Pa. Super. 92, 626 A.2d 588 (1993). The contemnor may eventually purge him/herself by complying with the order. Id. When a party complains that there has been noncompliance with a court order, and that the other party should be held in civil contempt, the complaining party bears the burden of proving the contempt by a preponderance of the evidence. 1(t.atlQQ,626 A.2c1atmS92. It is well-settled that HN3+there are certain elements necessary to support a finding of civil contempt, namely: that the [*56] contemnor had notice of the specific order or decree which he disobeyed; that the act constituting the contemnor's violation was volitional; and that the contemnor acted with wrongful intent. Eensti:1rT1i:1kerv, Eensti:1rT1i:1keD 33ZPa.Super. at 415-16, 487 A.2d at 14. The notice requirement may be fulfilled when the contemnor has actual knowledge of the order, despite never having been personally served with the order. 1(t,at4tZJ48ZA,2c1at15. Additionally, in cases where the contemnor has this actual knowledge, he/she must also have a reliable authoritative [***5] basis for believing that he/she could be held responsible for a failure to comply with the order. Nesh?JmJnyPI?JZi:11Lv, Kelly,21Pa,.Commw. 469, 346 A,2d 884 (19Z5) (contempt citations dismissed when alleged contemnors were served with an informal copy of a judge's order where mere initials appeared at the place provided for the judge's signature on the copy). HN4'i'''To be punished for contempt, a party must have violated a court order." C.R. By DunnJ 426 Pa. Super. at 100, 626 A.2d at 529 (emphasis added). In order to support a finding of contempt, the order or decree which the contemnor has been held to have violated, must be definiteJ clear, and specific -- leaving no doubt or uncertainty in the mind of the contemnor of the prohibited conduct. Fenstamaker, suora. Because the order forming the basis for civil contempt must be strictly construed, any ambiguities or omissions in the order must be construed in favor of the defendant. C.R. By Dunn, supra. In such cases, a contradictory order or an order whose specific terms have not been violated will not serve as the basis for a finding of contempt. [d. Additionally, the mere showing of noncompliance of a [***6] court order or misconduct, is never sufficient, alone, to prove contempt. COrTImo[1weillthv. Washington, 466 Pa. 506, 353 A.2d 806 (1976). In Weingri:1(tv.IJppY,3QOPa'mSuper.Z6,44SA.2.d13Q6{1982), where counsel was cited for contempt of court because he failed to promptly arrive in chambers for points for charge, appellant-counsel contended that because the trial judge's "request" was not in the form of an "order or decree" and [*57] because counsel did not receive any written notice of any https://www.lexis.com/research/retrieve?_m=4fDe3 7aO 1796561136fd73d9a50a829c&csvc... 9/13/2007 c Get a Document - by Citation - 448 Pa. Super. 52 Page 5 of7 order or decree, that the court order did not comply with the notice requirement supporting a finding of contempt. In dicta, however, this court mentioned that because the trial court judge stated in open court that he wanted counsel promptly in his chambers at a specified time to go over certain points for charge, the judge's attempt to be clear concerning his directive to counsel would satisfy the contempt criteria of which appellant complained. Id. See also In re Matter of James, 323 Pa. Super. 149, 470 A.2d 174 (1984) (appellate court affirmed the finding of contempt of an attorney, where there was no written order or decree, because attorney's failure to appear in court with a brief, [***7] after having told the judge he would appear at a certain time, demonstrated the requisite [**674] wrongful intent to support a finding of contempt). 1 FOOTNOTES 1 While the trial court could not have held Baird in violation of an oral order because he was never in the presence of the court on the day of the injunction hearing, it is important to note the line of cases that uphold contempt citations based upon the violation of oral orders or directives. The majority of these cases involve an attorney as the contemnor. In his dissenting statement in In re Matter of Johnson, Justice Pomeroy recognized how an attorney, as officer of the court, holds a special, fundamental relationship with the court. Specifically he stated, "it is axiomatic that lawyers are officers of the court admitted to office on taking the statutory oath. . . to behave with all good fidelity to the court as well as to the client." InIe!l1?tterof]obnso0'46ZPa, 552,56J,J59A.2dZJ9, 745m(19Z6), citing InIe...Scboffeld~m362.Pa......2.Q.l/.....2Q4mO,1/m66A.20....6.7.5,..67.7....0.1...(.1.96Z). See also Commonwealth v. Haefner, 470 Pa. 392, 368 A.2d 686 (1977) (holding that lay person cannot be held to have committed criminal contempt, when defendant's answer of prosecutor's question contained material which court had ruled inadmissible because a court "cannot expect a layman to interpret questions as if he were an attorney"); Aopeal ofLevine'mJZ2 Pa.612'm95A.2d222(1953) (Jones, J., dissenting) (a contempt by an attorney is relatively more culpable than that of a layman, so also is the punishment, as an attorney has violated his oath and this demands that a court more carefully scrutinize the injustice that was done). [***8] The dicta in Weingrad, however, does not alter the fact that HN5':ia party may not be held in contempt of court for failing to obey an order that is too vague or that cannot be enforced. In Janet D. v. Carras, 240 Pa. Super. 291, 362 A.2d 1060 (1976), a child welfare agency could not be held in contempt of an order directing an agency to commit a child to a "suitable shelter," [*58] where the court order did not communicate with sufficient clarity the fact that facilities other than the chosen shelter would be considered suitable, and where the order neither suggested alternatives to the chosen shelter, nor excluded the chosen shelter. The Carras court opined that the trial court order omitted vital terms which would have instructed the alleged contemnor as to what the term "suitable shelter" exactly meant. In fact, this court acknowledged that even though the contemnor was fully aware of legislative acts that recommended certain social work principles for placement of children in shelters, the trial court could not simply state that the mere words of "suitable arrangements" would indicate exactly the type of custodial care which the court intended the appellant to provide. The [***9] trial court, in the instant case, has hyperextended the rule of Weingrad, and, as a result, contravened the premise in Carras by holding Baird in contempt. The transcribed testimony from the contempt petition proceedings reveals testimony completely contradictory from statements made in the trial court's opinion. Specifically, the trial court stated that Barry Harvis "had informed John Baird that he was not to cash either of the CD[']s." The https://www.lexis.comlresearch/retrieve?_m=4fDe3 7aO 1796561136fd73d9a50a829c&csvc... 9/13/2007 Get a Document - by Citation - 448 Pa. Super. 52 Page 60f7 actual testimony presented by Harvis, however, was that he had informed Baird that "the status quo should be maintained [and], that no corporate assets should be dissipated." This actual notice, given by Harvis to Baird, mentions nothing of the disposition or state of the CDs of which Baird was held to have dissipated in violation of a court order. For these reasons, Baird did not have "actual knowledge from a reliable, authoritative basis, for believing that he could be held in contempt." Neshaminv Plaza II, suora. In addition to the fact that Baird was not given the requisite notice by Harvis, he was also not afforded the benefit of a clear, definite, and specific court order or decree stating that he was not to dissipate [***10] the CDs. The trial court justifies its finding of contempt, based upon an unwritten court order, by stating that because Baird was not expecting any written order from the court, he cannot claim lack of notice as a [*59] defense to his contempt finding. The trial court's reasoning, however, is circular and unsupported. There are no cases that stand for the proposition that if a party does not expect a court order, then he or she, in effect, waives any right to notice of that order before a contempt violation will issue. In the instant case, the trial court never docketed any order, whether in general or specific terms, indicating what assets Baird could and could not dissipate. The only guidance given to Baird was an oral recitation of the injunction hearing proceedings. This message, relayed by Harvis, was similar [**675] to the Carras instruction in that it failed to include such operative terms as CD, which "would have indicated to [Baird] that more was expected than merely an attempt to" refrain from dissolving corporate assets. Cf.L..i310cJilli310v.Boyste[,d'J54 F,Sl.Jpp.1292{19Z'J) (relied upon by Carras trial court) (contempt conviction upheld when contemnors violated a written [***11] injunction order that contained explicit terms prohibiting defendants from entering into certain acts). One may subjectively conclude that the trial court properly held Baird in contempt due to the fact that appellant was an educated businessman who most likely knew that his act of cashing in a $ 25,000 CD was not in accordance with a suit brought against him for stealing corporate funds. As stated in Carras. supra, however, even if the court leaves its order in the most general terms in order "to avoid usurping the judgment of [trained individuals in a business]," a court cannot conclude that the actions of the alleged contemnor and that of the court will be identical -- namely that Baird will refrain from cashing the CD. The trial court clearly abused it discretion by holding the defendant in contempt of an injunctive order which not only failed to recite the specific act which a defendant was prohibited from committing, Carras, suora, but which also was never reduced to a formal order -- never signed by the trial judge and never entered on the docket. Additionally, Baird was neither present at nor represented at the injunction hearing so that the requirement of actual [***12] knowledge of the unwritten order was fulfilled. Fenstamaker, supra. Accordingly, Baird [*60] cannot have been proven to have committed contempt by a preponderance of the evidence, c.R. By Dunn, supra. Order reversed. HOFFMAN, J., files a Dissenting Statement. DISSENT BY: HOFFMAN DISSENT DISSENTING STATEMENT BY HOFFMAN, J.: Filed January 10, 1996 https://www.lexis.com/research/retrieve?_m=4fOe3 7aO 1796561136fd73d9a50a829c&csvc... 9/13/2007 Get a Document - by Citation - 448 Pa. Super. 52 Page 7 of7 I respectfully dissent. I would affirm on the basis of the Trial Court's March 14, 1995 Opinion. Service: Get by LEXSEE@ Citation: 670 A2d 671 View: Full Dateffime: Thursday, September 13, 2007 - 1:37 PM EDT * Signal Legend: . - Warning: Negative treatment is indicated . - Questioned: Validity questioned by citing refs .A - Caution: Possible negative treatment <0 - Positive treatment is indicated 6) - Citing Refs. With Analysis Available o - Citation information available * Click on any Shepard's signal to Shepardize@ that case. .., About LexisNexis I Terms & Conditions ..,. LexisNexis@ Copyright@ 2007 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. https://www.lexis.comlresearchlretrieve?_m=4IDe3 7aO 1796561136fd73d9a50a829c&csvc... 9/13/2007