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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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                                                                              Superior 07/28/2015
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                                                                                                        PM


                                                              Filed 05/06/2015 Superior Court Eastern District
                                                                                             3146 EDA 2014


                     IN THE SUPERIOR COURT OF PENNSYLVANIA
                              PHILADELPHIA DISTRICT



                            No. 3146 EASTERN DISTRICT 2014



                                  LEO GIBNEY,
                                         Appellant,
                                         v.
                     EVOLUTION MARKETING RESEARCH, LLC,
                                         Appellee


                         INITIAL BRIEF OF APPELLANT

             On Appeal from Judgment of Sentence b y t h e C o u r t o f
             C o m m o n P l e a s o f M o n t g o m e r y C o u n t y entered on
             September 29, 2014 (Rogers J.) and the Order directing
             Appellant to pay sanctions to Evolution’s attorneys (July
             30, 2014, Rogers J.).


                                          Leo Gibney
                                          Pro Se
                                          27 E Central Ave
                                          D7
                                          Paoli PA, 19301
                                          Tel: 610-563-0762



Dated: May 7, 2015
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                                                          Table of Contents



TABLE OF AUTHORITIES ........................................................................................................................... iii
STATEMENT OF JURISDICTION ................................................................................................................ 1
ORDERS/DETERMINATIONS IN QUESTION ............................................................................................. 1
STATEMENT OF SCOPE AND STANDARD OF REVIEW ............................................................. 1
STATEMENT OF QUESTIONS INVOLVED ..................................................................................... 4
STATEMENT OF THE CASE .............................................................................................................. 4
FORM OF ACTION AND PROCEDURAL HISTORY OF THE CASE .......................................... 4
STATEMENT OF FACTS ...................................................................................................................... 9
SUMMARY OF ARGUMENT .............................................................................................................. 9
ARGUMENT ......................................................................................................................................... 10
   I. THE TRIAL COURT FAILED TO FOLLOW PROPER PROCEDURE IN A FINDING
   OF CONTEMPT, COMMINGLED CRIMINAL AND CIVIL CONTEMPT, AND DID NOT
   GIVE APPELLANT AN OPPORTUNITY TO AVOID IMPRISONMENT BY PAYING
   $500 TO EVOLUTION’S COUNSEL, BELYING THE WORDING OF THE CONTEMPT
   ORDER. THERE WAS NEVER A PETITION FOR CONTEMPT BY EVOLUTION. ...... 10
   II.  THE TRIAL COURT’S SANCTIONS AGAINST APPELLANT, ORDERING HIM
   TO PAY $500 TO EVOLUTION’S LAWYERS FOR HIS CONTINUED OBJECTIONS TO
   PRODUCING DISCOVERY, WERE UNREASONABLE AND AN ABUSE OF
   DISCRETION ROOTED IN ERROR OF LAW. THE TRIAL COURT SANCTIONED
   APPELLANT AND COMPELLED HIM TO ANSWER DISCOVERY QUESTIONS
   WHEN THE TRIAL COURT KNEW AND ACKNOWLEDGED THERE WERE NO
   MATERIAL FACTS FOR EVOLUTION’S COUNTERCLAIMS. THE TRIAL COURT
   ALSO SANCTIONED APPELLANT FOR NOT ANSWERING DISCOVERY
   QUESTIONS THAT WERE TRULY IMPOSSIBLE FOR APPELLANT TO ANSWER. ... 16
CONCLUSION ...................................................................................................................................... 19



CERTIFICATE OF SERVICE…………………………………………………………………….20

APPENDIX WITH INDEX……………………………………………………………………21




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                                            Table of Authorities
Barrett v. Barrett, 368 A. 2d 616 - Pa: Supreme Court 1977 ................................................. 3, 15

COM. EX REL. HEIMBROOK v. Heimbrook, 441 A. 2d 1242 - Pa: Superior Court 1982 .......... 1, 2

Crislip v.Harshman, 365 A. 2d 1260 - Pa: Superior Court 1976 ................................................... 3

Diamond v. Diamond, 792 A. 2d 597 - Pa: Superior Court 2002 ............................................. 1, 3

Gunther v. Bolus, 853 A. 2d 1014 - Pa: Superior Court 2004. ..................................... 1, 2, 13, 15

Lachat v. Hinchliffe, 769 A. 2d 481 - Pa: Superior Court 2001 ................................................. 1, 3

Lachat v. Hinchliffe, 769 A.2d 481, 487 (Pa.Super.2001)............................................................ 2

McMahon v McMahon, 706 A. 2d 350 - Pa: Superior Court 1998 .............................................. 3

Rhoades v. Pryce, 874 A. 2d 148 - Pa: Superior Court 2005 ........................................................ 2




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                                     STATEMENT OF JURISDICTION


        This is a direct appeal from a final order of the Court of Common Pleas, Mo nt gome r y

County (2012-10933), f i n d i n g A p p e l l a n t i n c o n t e m p t , sentencing Appellant to 90 days

imprisonment, and ordering Appellant to pay $500 sanctions to Evolution’s lawyers in order to be

released from prison. Jurisdiction is founded at 42 Pa.C.S.A. § 742. (see Diamond v. Diamond,

792 A. 2d 597 - Pa: Superior Court 2002)



                              ORDERS/DETERMINATIONS IN QUESTION


        The Order appealed from was entered by the Court of Common Pleas (Rogers J.),

on S e p t e m b e r 2 9 , 2 0 1 4 , sentencing Gibney to 90 days imprisonment for contempt (Dkt

#159) and the order directing Gibney to pay $500 sanctions to Evolution’s lawyers (Dkt# 133),

which Gibney had to pay to be released from prison.


                        STATEMENT OF SCOPE AND STANDARD OF REVIEW


  1. Contempt orders imposing sanctions are reviewable final orders.

       “When a contempt order that imposes sanctions also contains a purge condition, the purge
       condition does not transform a final, appealable order into one that is interlocutory. If that were
       the case, a contemnor in a civil contempt action would not be able to appeal the contempt order
       until he/she was incarcerated or had paid the sums owing as sanctions for contempt. It seems
       inappropriate and unnecessarily harsh for a contemnor in a civil contempt action to undergo
       incarceration or fulfill another sanction before this Court will accept an appeal of a contempt
       order. Rather, we conclude that, for a contempt order to be properly appealable, it is only
       necessary that the order impose sanctions on the alleged contemnor, and no further court order
       be required before the sanctions take effect.” See Rhoades v. Pryce, 874 A. 2d 148 - Pa: Superior
       Court 2005

  2. Review centers on abuse of discretion, unreasonableness, and errors of law in the
     contempt/sanctions orders.

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   “Our scope of review when considering an appeal from an order holding a party
   in contempt of court is narrow: We will reverse only upon a showing of
   an abuse of discretion.” See Diamond v. Diamond,792 A.2d 597, 600 (Pa.Super.2002).
   “The court abuses its discretion if it misapplies the law or exercises its discretion in a manner
   lacking reason.” (emphasis added). See Lachat v. Hinchliffe, 769 A.2d 481, 487
   (Pa.Super.2001).


3. Contemnors should be given an opportunity to make an immediate payment to purge contempt
   and avoid imprisonment, which was not done in the instant case, despite the wording of the
   contempt order to the contrary.

   “While a coercive sentence is wholly appropriate in this case, the record does not support, and
   the trial court did not find, a present ability on the part of appellant to purge himself by
   making an immediate payment of $250.00. Consequently, the sentence appears to be punitive
   and not coercive.” (emphasis added) See COM. EX REL. HEIMBROOK v. Heimbrook, 441 A.
   2d 1242 - Pa: Superior Court 1982


   “The typical sanction for civil contempt is remedial in nature. For example, a court may require
   the contemnor to compensate the opposing party for losses incurred as a result of the violation
   or reimburse the party's attorneys' fees and costs. It is also common in civil contempt for a court
   to impose a conditional prison sentence, giving the contemnor an opportunity to purge the
   contempt and avoid the sentence by compensating the opposing party, paying counsel fees, or
   doing some other affirmative act within a certain time period.” Gunther v. Bolus, 853 A. 2d
   1014 - Pa: Superior Court 2004.



4. Civil vs criminal contempt must not be “commingled,” as was done here, as the two have
   different procedural standards.

   “In determining whether a contempt proceeding is criminal or civil, a court must look to
   whether its dominant purpose is to punish for the violation of a court order or to coerce the
   contemnor into compliance with the order. It is well-settled that where the dominant purpose of
   the contempt proceeding is to aid a private litigant or interest rather than to vindicate the
   authority of the court or to protect the public interest, the contempt is civil…. Furthermore, it is
   clear that even where the same facts might give rise to criminal as well as civil contempt, each
   has its own distinct procedures and confers distinct procedural rights; the two may not be
   casually commingled.” See Barrett v. Barrett, 368 A. 2d 616 - Pa: Supreme Court 1977




   The trial court erred in not following the “5 step” and other proper procedures in a finding for

contempt. (See Lachat v. Hinchliffe, 769 A. 2d 481 - Pa: Superior Court 2001, McMahon v

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McMahon, 706 A. 2d 350 - Pa: Superior Court 1998, Crislip v.Harshman, 365 A. 2d 1260 - Pa:

Superior Court 1976.).




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                           STATEMENT OF QUESTIONS INVOLVED


1. Was proper procedure followed for a contempt finding, both criminal and civil, when Appellant,

   following a rule to show cause why he should not be held in contempt, motioned for

   clarification and was provided no clarification? There was no petition for contempt by

   Evolution. Was it also unreasonable and an abuse of discretion to immediately imprison

   Appellant at the September 29, 2014 contempt hearing and argument, without giving

   Appellant an opportunity to make a $500 sanctions purge payment, even though the

   contempt order was written in such a way that Appellant could avoid imprisonment by

   making an immediate payment prior to the 90 day sentencing?

2. Was the $500 sanctions (from a previous order), which Gibney had to pay to Evolution’s

   lawyers to be released from prison, unreasonable, rooted in error of law?


                                  STATEMENT OF THE CASE


      This is an appeal from the order (Dkt# 159) of the trial court finding Gibney in

contempt, sentencing him to 90 days imprisonment and requiring him to pay $500 sanctions to

Evolution’s attorneys, from a previous order, in order to be released.



                   FORM OF ACTION AND PROCEDURAL HISTORY OF THE CASE


1. Appellant initiated this action in May 2012 with a wrongful termination suit against

   Evolution Marketing Research, LLC (“Evolution”).            He alleges he was wrongfully

   terminated in violation of public policy for refusing to engage in a planned fraudulent

   billing scheme against Merck & Co., Inc.

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2. Evolution filed preliminary objections, which were overruled. It was ordered to answer the

   complaint.



3. Evolution answered On October 11, 2012 (Dkt# 21) and also filed six counterclaims

   against   Appellant:   defamation,   commercial       disparagement,   conversion,    tortious

   interference with existing contracts, tortious interference with prospective contracts, and

   misappropriation of trade secrets. Gibney answered and denied all counterclaims.



4. Gibney seeks to subpoena Merck witnesses who should be supporting Evolution’s

   counterclaims, if they had merit. Evolution objects and seeks to quash. Eventually, on

   December 4, 2013, after more than six months and a letter to the trial court from Appellant,

   two of the motions to quash were granted and two denied.



5. Appellant motions to amend complaint to include an abuse of process counterclaim against

   Evolution with respect to its counterclaims.(Dkt # 75, April 18, 2013) Appellant argues

   they are meritless and brought forth for an improper purpose. Appellant properly pleads

   the three components of abuse of process. Evolution objects to the proposed amendment.

   The trial court grants Appellant’s motion to amend.



6. Appellant motions for summary judgment on Evolution’s counterclaims, clearly

   demonstrating the absence of material facts and evidence (Dkt # 96, August 14, 2013).




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7. The trial court denies the MSJ as “premature.” The trial court, citing summary judgment

     rule 1035.2 with respect to discovery relevant to the motion, opines that the time to dismiss

     claims due to lack of specificity and material facts is with preliminary objections. The trial

     court further opines that if Appellant does not like the fact that Evolution objects to

     producing evidence/material facts for its counterclaims during discovery, Appellant must

     motion, presumably successfully, to compel Evolution to produce material facts of

     wrongdoing by Gibney and not motion for summary judgment.(Dkt# 114, December 13,

     2013). This is court-ordered masochism.


8. Gibney motions for reconsideration (Dkt # 117) pointing out the error of law with respect

     to summary judgment and material facts. Gibney calls-out how Evolution objected to

     producing, as just one example, evidence of tortious interference by Gibney, stating also in

     the record that any such evidence is “not available.” Evolution objected to producing

     evidence of harm and loss for all of its counterclaims. The trial court denied the motion for

     reconsideration without opinion. (Dkt # 122, January 28, 2014).



9.   Evolution motions for sanctions against Gibney for objecting to producing discovery with

     respect to its counterclaims. Gibney continues to object due to the complete absence of

     any evidence, which the trial court is aware of and acknowledged in its opinion denying

     Gibney’s MSJ. Gibney continues to object, making the same argument about the absence

     of evidence. Eventually, Gibney is sanctioned and is ordered to pay $500 to Evolution’s

     lawyers. (Dkt #133, May 19, 2014). Notably, the trial court continues to deny Evolution

     summary judgment on its counterclaims due to Gibney’s continues objections and their

     multiple motion filing. The trial court is aware that Evolution has produced no evidence.
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10. After a third motion for sanctions, Gibney is ordered to pay the previous $500 sanctions to

   Evolution’s lawyers by August 8, 2014. The court has, at this point, accepted Appellant’s

   responses to discovery requests. (Dkt # 140, July 30, 2014)


11. Appellant sent a letter to J Rogers asking for postponement of payment of the sanctions

   until a final order has been rendered, or to reconsider and vacate the sanctions order. The

   trial court dockets the letter as a motion for reconsideration on the sanctions and denies it

   (Dkt # 141, August 11, 2014, attached).



12. Two weeks after denying the above reconsideration motion, August 25, 2014, the trial

   court sets a rule return date of September 15, 2014 for Appellant to show cause why

   Appellant should not be held in criminal contempt (“to vindicate the authority of the

   court”). (Dkt # 145). There were no intervening motions by Evolution for contempt.


13. Appellant motions for clarification (Dkt # 151, September 15, 2014), as the rule order is

   unclear about what specifically Appellant had done to warrant the threatened criminal

   contempt.   Appellant had responded to discovery requests and the court accepted the

   responses, as stated in this motion. There were no motions for contempt by Evolution.



14. The trial court responds the next day (Dkt # 154) by referring to the previous sanctions

   order, but does not clarify or state for the record what Gibney had done that is criminally

   contemptible, instead ordering that a hearing and argument “if necessary” will be held on

   September 29, 2014.

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15. The hearing and argument occur on September 29, 2014, with the record still unclear about

   what specifically Gibney had done to warrant criminal contempt. Argument takes place,

   rehashing the same issues of lack of material facts and Gibney’s objections to producing

   discovery (which, by this point, Gibney has produced, as noted in the motion for

   clarification, Dkt# 151) and why sanctions are an abuse of discretion. The trial court never

   asked Appellant a single question, for the record, during the September 29

   hearing/argument, including whether he did pay or would pay the $500 sanctions.



16. At the end of the argument, the trial court read from the bench. Multiple court officer have

   entered the room. As soon as the trial court utters the word “imprisonment” in the finding

   of contempt, Gibney is surrounded by court officers, ordering him to stand up, hold hands

   together, etc., while the trial court is still reading the order from the bench. Gibney is never

   given an opportunity to purge the contempt (whether civil or criminal or both is unclear as

   the two are inappropriately commingled) and avoid imprisonment by paying $500 to

   Evolution’s lawyers, despite the wording of the order to the contrary. Gibney is taken to

   prison from the courthouse and was not able to make a phone call for 24 hours to try to

   secure his release from prison.



17. This timely appeal followed on October 8, 2014.




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                                      STATEMENT OF FACTS


        Since the relevant facts are procedural, for ease of review, they are discussed in the body

of this Brief.

                                    SUMMARY OF ARGUMENT

        The trial court abused its discretion and did not follow proper procedure in finding Appellant

in contempt, sentencing him to 90 days imprisonment, and requiring him to pay $500 to Evolution’s

lawyers from a previous order imposing sanctions (Dkt # 159).

       The trial court ordered appellant to show cause why he should not be held in criminal

contempt (Dkt# 145). Appellant motioned for clarification to understand specifically why he would

be held in contempt, i.e., what Gibney did or did not do that would warrant this threatened contempt

(Dkt#151). The trial court responded to the motion for clarification (Dkt # 154), but did not clarify,

nor deny the motion, instead scheduling a hearing and argument for September 29, 2014.

       There was never a petition for contempt by Evolution.

       On September 29, 2014 the hearing was held. At the end of the hearing/argument, the trial

court read from the bench. The trial court found Gibney in contempt—both criminal and civil

(improper commingling)-- and Gibney was immediately handcuffed—while the court was still

reading the order from the bench-- and taken from the courtroom. Gibney was given no chance to

avoid imprisonment, despite the wording of the contempt finding and order (Dkt #159), which

explicitly stated that Gibney could purge the contempt and avoid imprisonment if he paid Evolution’s

lawyers $500, prior to the 90 day prison sentence. A transcript from the hearing reveals that the trial

court read this from the bench. However, Gibney did not hear it because he was simultaneously

obeying orders from court room guards (“stand up,” “put your hands together,” etc.) while the trial

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court was reading from the bench. The trial court never ordered the guards to stop handcuffing and

talking to Gibney so he could hear what he was reading. The trial court never asked Gibney a single

question during the hearing resulting in the contempt finding and immediate imprisonment. The

order was hand delivered to Gibney while being held in a retaining cell awaiting transport to prison.

Gibney read it, saw that it stated he could purge the contempt and avoid prison by paying the $500

sanctions. He approached the guards retaining him who simply shrugged their shoulders and said

there was nothing they could do about it. Two hours later, Gibney was handcuffed, placed in chains

around his waist and ankles and transported to prison. Gibney was not permitted to make a phone call

for 24 hours to tell someone where he was and to try to get the $500 to Evolution’s lawyers.

       As Gibney had to pay $500 to Evolution’s counsel from a previous sanctions order to be

released from prison and purge the contempt, that sanctions order is now appealable. The $500

sanctions was unreasonable and an abuse of discretion, rooted in the misapplication of the law. The

sanctions stemmed from Gibney’s objections to providing discovery with respect to Evolution’s

counterclaims, when the trial court was aware of—and acknowledged—that there were no material

facts for Evolution’s counterclaims against Gibney. The sanctions were also unreasonable because

the trial court compelled Gibney to answer questions that were truly impossible for Gibney to

answer, strongly suggesting that the trial court never read Evolution’s        discovery requests, or

Gibney’s responses, despite multiple oral arguments on the matter stemming from multiple motions to

compel and for sanctions.


                                            ARGUMENT


I.     THE TRIAL COURT FAILED TO FOLLOW PROPER PROCEDURE IN A
       FINDING OF CONTEMPT, COMMINGLED CRIMINAL AND CIVIL
       CONTEMPT, AND DID NOT GIVE APPELLANT AN OPPORTUNITY TO
       AVOID IMPRISONMENT BY PAYING $500 TO EVOLUTION’S COUNSEL,
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        BELYING THE WORDING OF THE CONTEMPT ORDER.                                    THERE WAS
        NEVER A PETITION FOR CONTEMPT BY EVOLUTION.


        On August 25, 2014, the trial court issued an order to Appellant to show cause why he should

not be held in criminal (“vindicate the authority of the Court”) contempt (Dkt# 145). Appellant

motioned for clarification to understand specifically why he would be held in contempt, i.e., what

Gibney did or did not do that would warrant this threatened criminal contempt (Dkt#151). A review

of the record will reveal it is unclear.

        The trial court responded to the motion for clarification (Dkt # 154), but did not clarify, nor

deny the motion, instead scheduling a hearing and argument for September 29, 2014, referencing a

previous $500 sanctions order. At no time was there a petition for contempt, or any other motion, by

Evolution.

        On September 29, 2014 the hearing was held, presumably to argue why Appellant should or

should not be held in criminal contempt. A transcript of the September 29 hearing demonstrates that

most of the time was spent arguing Gibney’s previous motion for summary judgment and the absence

of material facts for Evolution’s counterclaims, and Gibney’s objections to producing discovery for

Evolution’s counterclaims when the trial court was aware of and acknowledged the absence of

material facts (discussed below with respect to the $500 sanctions).

        The trial court never asked Gibney, for the record, if he paid $500 to Evolution’s counsel from

a prior sanctions order or if he would. There was never a petition for contempt. On page 32 of J

Rogers opinion, he acknowledges he never asked Gibney, stating the following:

               “In addition, and contrary to his contention otherwise, there was no reason to ask Dr.
               Gibney whether he had paid the five hundred dollar sanction when Counsel for
               Evolution made it clear that he had not received it.”


        Thus, according to the trial court, there is no reason to ask someone he is about to imprison,

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for the record, if they obeyed an order or not, or give them one more chance to do so to purge the

contempt and avoid imprisonment (despite the wording of the order finding Gibney in contempt,

which belies this). Instead, the word of opposing counsel, who never petitioned for contempt in the

first place, is sufficient. Reviewing the transcript of the September 29, 2014 hearing and argument,

this Superior Court will note that the trial court never asked Appellant a single question during the

hearing, prior to sentencing Appellant to prison.

       At the end of the hearing/argument, the trial court read from the bench. The trial court found

Gibney in contempt—both criminal and civil (improper commingling)-- and Gibney was immediately

handcuffed—while the court was still reading the order from the bench-- and taken from the

courtroom. Gibney was given no chance to avoid imprisonment, despite the wording of the contempt

finding and order (Dkt #159), which explicitly stated that Gibney could purge the just announced

contempt finding and avoid imprisonment if he paid Evolution’s lawyers $500, prior to the 90 day

prison sentence. A transcript from the hearing reveals that the trial court read this from the bench.

       However, Gibney did not hear it, because, as soon as the word “imprisonment” was read, he

was immediately surrounded by court officers, obeying orders from them (“stand up,” “put your

hands together,” “I don’t know what’s wrong with these handcuffs, etc.) while the trial court was

reading from the bench. The trial court never ordered the guards to stop talking and handcuffing

Gibney so he could hear what Rogers was reading from the bench. The entire scene was

prearranged and the trial court never intended to give Gibney an opportunity to purge the contempt

and avoid prison, despite the contempt order, deceptively written to appear that Gibney could avoid

imprisonment by paying Evolution’s lawyers $500 immediately. On page 27 of his opinion, the trial

court cites applicable law about giving the contemnor an opportunity to purge the contempt and avoid

imprisonment. However, Judge Rogers utterly avoids discussing the fact that he himself did not do


                                                    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              !<esea::ch,          LLC's            Counsel,            in        ene

 a~ount      o! 5500.00                    for     the       f1ling            of      the        second Moticn

 lor     Sanctions,                 and     the      c~urt now                 having             PLOvided           a

he&.r1ng        on -~onday,                 Se;:,ce~ber             29,        201~.             it Ls     hereby

ordered tha~ Leo G:bney                                 1s     held       in contempt                     of     courc.

                                                   Leo Gibney                  shall         serve         a per~cd
of ~:pr!son~enc                      ~or       a period             o( 90 days forthwith,                                  3t

tbe    Moncgocery              Councy             Correct1ona1                      Facility,              unless

Leo Gibney             pur;es             that      contempt              prior          to the            ~0-day

           ~~     ii:;pr1sc:1::it'n-c,               by       providing                payment             r n    th<:

eount      o! SS00.00                    co Ev~lucion                 Marketing

•s••rch,          LL.C's            Coun:.el,           as directed                    by        the     Court's



                                                               14
                                                                                   Circulated 07/28/2015 04:07 PM




               The trial court never stated for the record, prior to the September 29, 2014

hearing, what specifically Gibney had done to warrant the threatened criminal contempt.

There was no petition for contempt by Evolution. As stated, the trial court also commingled

criminal and civil contempt and, with respect to the latter, never gave Gibney an opportunity to

purge the contempt and avoid imprisonment. Below is relevant case law on not commingling

civil and criminal contempt and in providing contemnor with an opportunity to purge the

contempt and avoid imprisonment.

      “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.” (emphasis added) See Barrett v. Barrett, 368 A. 2d 616 - Pa: Supreme Court 1977

  “The distinction between criminal and civil contempt is crucial as the due process provided differs
  significantly. However, there is nothing inherent in a particular contemptuous act that classifies
  such act as either criminal or civil contempt. Rather, the distinction between the two is the court's
  dominant purpose in using the contempt power. If the dominant purpose is to vindicate the dignity
  and authority of the court and to protect the interest of the general public, it is a proceeding for
  criminal contempt. But where the act of contempt complained of is the refusal to do or refrain from
  doing some act ordered or prohibited primarily for the benefit of a private party, proceedings to
  enforce compliance with the decree of the court are civil in nature. The purpose of a
  civil contempt proceeding is remedial. Judicial sanctions are employed to coerce the defendant into
  compliance with the court's order, and in some instances, to compensate the complainant for losses
  sustained . See Lachat v. Hinchcliffe, 769 A.2d 481, 487 (Pa.Super.2001).

  “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.” (emphasis added) Gunther v. Bolus, 853 A. 2d
  1014 - Pa: Superior Court 2004.(Cited by J Rogers, p.27 of opinion)




                                                   15
                                                                                           Circulated 07/28/2015 04:07 PM




    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 GIBNEY AND COMPELLED HIM TO
          ANSWER DISCOVERY QUESTIONS WHEN THE TRIAL COURT KNEW
          AND ACKNOWLEDGED THERE WERE NO MATERIAL FACTS FOR
          EVOLUTION’S COUNTERCLAIMS. HE ALSO SANCTIONED GIBNEY FOR
          NOT ANSWERING DISCOVERY QUESTIONS THAT WERE TRULY
          IMPOSSIBLE FOR GIBNEY TO ANSWER.
          .
              Gibney was sanctioned $500 previously for his objections to producing discovery

for Evolution’s counterclaims (Dkt # 133), but was not found in contempt, rendering the

sanctions interlocutory and not appealable.

                 Gibney had previously motioned for summary judgment on all of Evolution’s

counterclaims (Dkt#96) citing and demonstrating the complete lack of material facts. 1 The trial

court agreed there were no material facts, but ruled that the time for demonstrating lack of

specificity and material facts is with preliminary objections. He therefore denied Gibney’s MSJ

as “premature.” (Dkt # 114). Below is the trial court’s brief opinion denying Gibney’s MSJ.

The Court will note that the trial court cites 1035.2 regarding summary judgment based on

“discovery relevant to the motion,” but denies Gibney’s MSJ because he did not file preliminary

objections. It is an utterly confusing opinion that is disconnected from the summary judgment

rule. Gibney motioned for reconsideration (Dkt# 117), but it was denied without opinion. It is

important to note that the trial court discusses all of this in the opinion supporting contempt.



1
  Judge Rogers' opinion in support of his contempt ruling spends significant time on Gibney’s argument about
summary judgment and material facts. On page 15 of the opinion, Judge Rogers himself calls-out a dialogue with
Gibney during oral argument wherein Gibney asked Judge Rogers if he had seen any contract with which Gibney
allegedly tortiously interfered (Evolution submitted no contracts). As seen, Judge Rogers thought it was
inappropriate, stating that Gibney had to “prove his case.” Also, on page 7 of his opinion, Judge Rogers refers to
Gibney’s argument in his motion for reconsideration (Dkt # 117) about summary judgment due to the absence of
material facts as “novel.” Judge Rogers disagrees with the law that a motion for summary judgment can be brought at
any time, based on the record as it then stands.
                                                         16
                                                                                    Circulated 07/28/2015 04:07 PM




                 ' Su Pa.k.C.1'. 1035.2(2) The proper procedure 10 object 10 B complemt, mclud1ng
                 ccuruerclnrms, on the basis of sp«1fic11y is by the folinl! of prcl,mina()• obiecrions, Su
                 Connor v.... li<,:l11my Gtneru/ H.,,pitnl, 501 Pa. )06, J 11 n.3 461 A.2d 600, 602 n.3
                 t 1983) n.e proper procedure 10 object to discovery responses. or the Ind 1hercol', ,s by
                  the filing of a morioe lo compel Su Pa R.C.11. 4019.

               In other words, the trial court ruled that it was too late for Gibney to demonstrate

the lack of material facts for Evolution’s counterclaims.            Therefore, Gibney must produce

discovery for counterclaims such as tortious interference with existing contracts, even though

the record at the time Gibney motioned for summary judgment revealed that Evolution both

objected to providing any material facts for this claim, and candidly admitted that any such

evidence was “not available.” Evolution argued, and the trial court agreed, that Evolution had

no material facts because Gibney, the defendant on the counterclaims, who does not bear the

burden of proof at trial, would not first produce discovery so Evolution could see if he in fact

tortiously interfered.   This set in motion multiple motions to compel and for sanction by

Evolution. Gibney continued to object to the proceedings when the trial court knew there were

no material facts, via its opinion (above) denying Appellant’s MSJ on Evolution’s

counterclaims. He was ultimately sanctioned. Notably, Evolution also motioned for summary

judgment on its counterclaims due to Gibney’s repeated objections to producing discovery. The

trial court always denied it because the court knew there were no material facts for the claims.

               In his order denying Gibney’s MSJ and motion for reconsideration, the trial court

opined (above) that Gibney must compel Evolution to produce material facts for their counterclaims,

not motion for summary judgment, if, during discovery, Evolution objects or states that material facts

for their claims are not available. In other words, according to the trial court, if Evolution refuses to

produce evidence of wrongful conduct by Gibney, which should be good news for Gibney, Gibney




                                                     17
                                                                                                Circulated 07/28/2015 04:07 PM




must make them and not ask the court to dismiss their claims. This is court-ordered masochism.2

                  The trial court was aware of the complete lack of evidence for Evolution’s

counterclaims when he sanctioned Gibney $500 for his continued objections to producing

discovery for Evolution’s counterclaims.                 Gibney sent the trial court a letter asking for

postponement and/or reconsideration of the sanctions (deemed a motion for reconsideration, Dkt

#141, also attached3), which was denied. Therefore, Gibney believes this $500 sanctions was

unreasonable, based on a misapplication of the law, and an abuse of discretion. 4

           Finally, not only did the trial court sanction Gibney for objecting to producing discovery for

claims the court knew were meritless, the court also compelled Gibney to answer discovery requests

that were truly impossible for Gibney to answer. Below is just one example of Evolution’s harassing

discovery requests. Gibney’s answer, below, was read into the record before the trial court during

oral argument for Evolution’s motion to compel and for sanctions. Gibney separated from Evolution

in 2011 and truly has no idea who Evolution’s clients are and obviously not its “prospective clients.”

The trial court overruled Gibney’s objection and again ordered Gibney to answer the question below

in his order granting sanctions (Dkt # 133). And, again, Appellant respectfully asks this Court to

keep in mind that the trial court also knew that Evolution objected to providing material facts for its

counterclaims against Gibney, stating, among other things, that information on clients and contracts

with which Gibney allegedly tortiously interfered was “not available.”




2
  All of this is summarized in Gibney’s motion for reconsideration of the sanctions (Dkt # 141).
3
  Gibney believes this letter (deemed a motion for reconsideration on the sanctions by Judge Rogers and docketed at
141) provides the best argument for why the $500 sanction was unreasonable and an abuse of discretion rooted in a
clear misapplication of the law. It is also attached.
4
  An ironic parallel to all of this is that Judge Rogers granted Gibney, over Evolution’s objections, leave to amend his
Complaint to include an abuse of process claim against Evolution with respect to its counterclaims, with Gibney
properly pleading the three elements of abuse of process. Gibney made the case that the meritless counterclaims
were brought forth for an improper purpose.
                                                            18
                                                                                                            Circulated 07/28/2015 04:07 PM




               11.    lden1ify each and every current, former i-.od/t)r pn~peci~,..e Cliem of E.voluuon with
      \l,hich Yoo or anyone acti,,g on Your t,cht11r has Communicated since 1hc:.1cnnin.a(i<1n ol"Y<\or
      Employment on NO\ltn\het 7, 201 l. Adtlitionally. Identity the dare or :.uch Conununicadon. the
      indi°'iduals involved in tho Comm11nicalion. ~he t()r•11 or1Jle Communicanon (oral1 writtc-n or
      electronic). anJ l111 Documents dcscr1bln~ o,, otherwise Related to such Comm1,n;c,uion

       Rfl.SPONSI'::

               This,, obrotd Who '.Ut: fvl)luuoe1's cllen1& and 11prospoc1ivc: cllerua" urKl ltu" rs Oibncy
      ~..S      1u 1cnow1hls1 ttncpm1<'<l t'rom lwolulivn in 2011.




                l)<fow, GiM.,;,y cites again Bvolution'i,i rl.!Sp011.~e to u dlscovury 1-cqUcbl from Oibftc) with r,'gtrd
      h) iis claun 11\31 Gibney tonuvu.,. ly int,-rf'ert"<I \\lith ..-:x1stl11g und prospOC'llvc <.ururt~lU3l 1ct:uio1~.
      rresuombly 1hc bai.;is for Lh1s question. ~[hi~ ts 1•un1t·,n1Mn~hh) hy 1•;,·"IYtJnn and OC9\lklst CwrtbC!t
      ,•ppori fc,r c:ihney',- .11l)u11t of' Ht9Sl~I "!!:i'lf,1.t V:,.()lytlo1~, Tl,ls 111)tf~lY"t •ntl h?tas,lnr: POIS£11l
      ,imo•r gnpo\ s1and. £,·vlvUon,s ,·uunJtrch1h111' s11uu1t1 hnYe h\.t" 11fs•nl;('it"d           ~ns:r     (~Huo:, ·, l\1SJ gn
      the l:ouncs·rsbhns. rr and "'·hs11 i! it,11('('tM11a, (;lbncY look" forwtir•• toll" nuns1ta1e sou rt cult"'
      yf •bis !bllw gf pn'ttt:~. Rallt 1 flJ5 •"d •he PA S11nrrr1u, C'o1.1r1 ruling ju t:,·t.:L HUllll 1h11Ys @11d i•
      tbs ~11ttlon [Dr Ruon~ids:rallon, natYhte ,1nutlc NUl)!)fl[I for (jll)ni:Y'"- refuH9I fl) e11gai:t. tn lhi) un[1ir
      t1nd hara.nine dies-0very nrocr~'i.

     f::\'\)lution. below, sta1ri. 1l vdces nC14 ha,·e lh~ inlOrn1a1ion at present." Appa.1·1:ruJy thb response v.-as
     1nsuflkfCf1, forOibnr) to prevail in his ~:SJ on f.'vt)1~Ul()n's eeunterclalms, due tu h1c-k of m~lefr.11 fik..11.
     Ye,. Gib,1<)   Im been ordered 10 ro>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
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                                                                                                                                                                                                                                     Circulated 07/28/2015 04:07 PM



                                                                                                           I
                       ":                                 ;\•\':·:.
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                                                      .
                                                      .
                                                                          THE COURTOF COMM~:;;~~-
                                                                                                                                                                        CIVIL AC1                               2012-10933--0197 3/24/20\5_ I l:07 AM ;: 102296)4
                                                                                                                                                                                                                                      0pm1on
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                                                              LEO GIBNEY                                                                                                                                         SUPERIORCOURT


~f Jf         f
·.. _-~ ../-~_:_.~,.:-.'··
  :-.<:: --,. · ·--··
                                iy~,t } ..
       :-'./.c:: . '-. : · . ·., . ·- ..'EVOLUTION
                                         · .c- .< ;_ :-·. ';:;:~-.
                                                                           >


                                                                   MARKETING
                                                          <RESEARCH LLC
                                                                                    ·1-·
                                                                                                   v.
                                                                                                                                                                                                                 NO. 3146 EDA 2014


                                                                                                                                                                                                                 TRIALCOURT
                                                                                                                                                                                                                 NO. 2012-10933
· }tti;·                                                              -.·.' .                  '
                       ,.,..,·•,.      ~

                                                              ROGERS,                      J.                                                                                                                    MARCH 24, 2015



                                                                                                                                                                                         OPINION
.?i}'.;·t·:.

                                                             I ..               INTRODUCTION

                                                                                Appellant Leo Gibney ("Dr. Gibney") has appealed pro se to the
                                                                ..

                                                             Superior Court of Pennsylvania ("Superior Court") from this court's order

                                                          · -dated and docketed on September 29, 2014, finding Dr. Gibney in

                                                          , contempt of court.                                                              The undersigned respectfully requests that the

                                                              Superior Court affirm the September 29, 2014 order ·for the reasons set

                                                              forth below.



                                                             II.                FACTUAL AND PROCEDURAL HISTORY

                                                                                The relevant facts and torturous procedural history underlying this

~-~   .   :                                                   appeal are as follows. Dr. Gibney filed a complaint on May 1, 2012,                                                  ••.   ~ ~- t    - .   •




                                                                                                                                                                                                                                                                     --·~--:
                                                                                                                                                                        ...
                                                                                                                                                                                                                                                           .·-· :·.,_/y~-
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                                                             ....   ~.   ,,,,..



                 ?~--   •   ,.:
                                                                                                                            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
                                                                                                                                                                       - . : >.~~:. ~:~<   /·,"

                                                                                                                                                          .. .    ~::: ,(·::\_:_~~;_::
                                                                                                                                                                 ~.:;··-...,   \
                                                                                                                                                                                            .,:
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                                                                                                                                                           ·-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

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      THE COURT:       Well, respectfully, that 1019 applies to the
      attachment of documents to a complaint.

                                   *      *       *    *

             "Gibney is not aware of any documents that Evolution
      does not already have. Evolution must specify which
      counterclaims it is referring and state the material facts
      supporting the counterclaim. Gibney incorporates all the
      objections noted in responses to interrogatories regarding
      Evolution's failure to provide the specificity and material
      facts."

           So I'm objecting. With objecting, I'm saying I'm not
      aware of any documents that Evolution does not have.

                                   *      *       *    *

            "Objection: Overly broad and vague, beyond the scope of
      discovery, is riot reasonably calculated to lead to the discovery
      of admissible evidence. What is the claim here and what is
      the basis for that claim? Not waiving the objection, Gibney
      has no hard copy of any such documents and has never
      shared any such 'documents with any third party."

             So -- and if I had them --

     THE COURT:                 So you're telling me that you don't have
     that?

      MR. GIBNEY:               I don't have hard copy of anything.

      THE COURT:                Well, that's a different statement.

(Id. at 23, 37, 55 and 62-63) (emphasis added).

      On December 16, 2013, the court issued an order denying Dr.

Gibney's motion for summary judgment on Evolution's counterclaims as

premature.    On December 20, 2013, the court issued a detailed order,

docketed on December 23, 2013, which directed Dr. Gibney to provide



                                              6
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                                         complete and verified answers and responses to specific interrogatories

                                         and requests in accordance with the Pennsylvania Rules of Civil Procedure

                                         within thirty (30) days. The order also provided as follows:

                                                      At the time of Argument, the Court made it explicitly clear to
                                                      both [Dr. Gibney) and Defense Counsel that the conduct
                                                      displayed in this process thus far is unacceptable. The Court
                                                      has now explained to [Dr. Gibney] what is expected in
                                                      response to discovery requests and the actions by Defense
                                                      Counsel at times have been unacceptable "gamesmanship".
                                                      The Undersigned has no objection, and it has demonstrated in
                                                      the past, in other matters, to impose Sanctions, Contempt
                                                      and if necessary, imprisonment in order to purge the
                                                      Contempt[.)

                                         (December 20, 2013 order at ,i 7).

                                                      On December 31, 2013, Dr. Gibney filed a "Memorandum of Law in

                                         Support of Motion for Reconsideration on the Order Denying Gibney's

                                         Motion for Summary Judgment on Evolution's Counterclaims". Therein,

                                         Dr. Gibney did not present any new facts or law as required to support

                                         reconsideration.        Instead, Dr. Gibney presented the novel argument that

                                         he was entitled to summary judgment                because Evolution had not

                                         produced "sufficient material facts to support its counterclaims" before the

                                         relevant discovery had been completed.              (Id. at p. 3).      In fact, he

                                         proclaimed, "[t)here is no requirement for Gibney to produce discovery."

                                         (Id.) (emphasis in original). The court denied Dr. Gibney's motion by order

                                         on January 28, 2014.

                                                      On February 25, 2014, Evolution filed a second motion for

                                         sanctions.        Prior to filing the motion, Counsel for Evolution attempted to
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                                                                                    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




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  MR. GIBNEY:       My response is in compliance were [with
· the) Pennsylvania Rules of Civil Procedure.

THE COURT:                I disagree.

                                              *   *             *   *

MR. GIBNEY:      As with all of these where I objected, I don't
know what claim or counterclaim this applies to.

                                              *   *             *   *

I have an objection. I refer to the Third Circuit and the
Supreme Court \decisions and noted my objections to
interrogatories pertaining to any counterclaims by Evolution
based on nothing 'more than information and belief and for
which there wefo no material facts.

                                              *   *             *   *

MR. GIBNEY:        Your Honor, my responses to Evolution's
interrogatories and document requests are in compliance with
Pennsylvania Rules of Civil Procedure.

THE COURT: _. No, they're not. They're not. And I've read
this. I've spent time. You can argue that to me, but they're
not, and so you need to understand that. That's what I'm
telling you. They're not in compliance with the Pennsylvania
Rules .of Civil Procedure, Dr. Gibney. You need to know that
right now op-the record.

 MR. GIBNEY:               May I continue?

                                              *   *             *   *
                                                      '·
      The law requires, Your Honor, that Evolution adduce
material facts for its counterclaims.    If there are no or
insufficient . materf_al-facts, ' the law requires that the
co11nterclaims be dismissed.

                                              *   *             *   *

       In the absence of material facts for damages, Rule 1035
'requires dismissal of Evolution's claims. In addition, the



                                                           10


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                                                                      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
                                                     ·   . ~~              ·,

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                                                                           Motion for Sanctions in the amount of Five Hundred Dollars ($500.00)".

                                                                           (Id. at p. 4). The court granted Dr. Gibney twenty (20) days to comply with

                                                                           the order. (Id.).

                                                                                               After unsuccessfully attempting to obtain an answer regarding the

                                                                           court ordered discovery responses and payment of the Five Hundred
•.
                                                                           Dollars ($500.00) from Dr. Gibney by email exchange, Counsel for

                                                                           Evolution filed a third motion for sanctions on June 13, 2014.                       (Third

                                                                           Motion for Sanctions, filed 6/ 13/ 14, Exhibit C). Evolution again sought

                                                                           the dismissal of Dr. Gibney's wrongful termination claim, an entry of

                                                                           default judgment                 on Evolution's counterclaims       and   an    award of

                                                                           reasonable attorneys' fees and costs.                 (Motion, filed 6/ 13/ 14, at p. 1).

                                                                           Evolution noted that Dr. Gibney was "in contempt of this Court under

                                                                           either the civil or criminal standard,                 as the orders compelling his

                                                                           responses and the sanctions payment are explicitly clear; his disobedience

                                                                           is willful rather than unintentional; and his own stated reason for not

                                                                           complying with the orders is his denial of the authority of this Court (i.e.,

                                                                           his belief that the Court's previous decisions were "wrong.")". (Id. at p. 7,

                                                                           n. 3).

                                                                                               The undersigned presided over the hearing on Evolution's third

                                                                           motion for sanctions under Rule 4019 on July 11, 2014.                         Counsel for

                                                                           Evolution explained their perceived deficiencies in Dr. Gibney's answers




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                                  and responses supplied on Monday, July 7, 2014.                         In sum, Counsel

                                  argued as follows:

                                                            So, Your Honor, just to summarize, one of two things is
                                                     going on here: The first -- and I'm pretty positive this is
                                                     what's going on here -- this is just another version of I'm not
                                                     producing any discovery to you. I don't like the rules of the
                                                     court, I don't believe in the rules of the court, and I'm going to
                                                     followmy own rules. I'm not going to give you anything. . ..
                                                     And whether he tells us directly, I'm not going to produce the
                                                     documents, as he's done three times and kept doing until this
                                                     Monday, or whether he just says these false statements that
                                                     he doesn't know as another way to get the Court off his back
                                                     or· us off his back, it doesn't matter; he's still refusing to
                                                     participate in discovery.

                                                           And at this poirit, there's no other remedy other than to
                                                     dismiss his claims and grant a default judgment on our
                                                     claims.

                                                           The only other possible answer, Your Honor, is that he's
                                                     actually being truthful that he really doesn't know who has
                                                     knowledge of his claims, that he really can't recall who he
                                                     talked to about the supposed fraud or his termination -- all
                                                     these topics thatare at the heart of his case, he just really
                                                     doesn't know. '. If that's true, then what he's done is highly,
                                                     highly prejudicial. We answered -- we filed our answer and
                                                     counterclaims in October of 2012. We served him discovery
                                                     in December of 2012. His answers were due in January of
                                                     2013.

                                                             If he really doesn't have the answers to these basic
                                                     questions now, he certainly had them back in January of '13.
                                                     And by telling us he's not going to respond, by ignoring the
                                                     Court's orders; by making up his own discovery rules, by
                                                     citing federal law that doesn't apply even in federal court and
                                                     then saying, look, 18 months has passed; guess what, I don't
                                                     remember anymore, on the most basic and fundamental and
                                                     critical issues -- that is so prejudicial that that would -- even
                                                     if it's true ...that would warrant dismissal of his claim and a
                                                     default judgment on our counterclaims anyway, because the
                                                     information is gone.
                                                                             *     *     *      *



                                                                                     13


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                                                          THE COURT:        Well, has he had his deposition taken?

                                                          MR.WOOLF:         We have        not       been   able   to take    his
                                                          deposition.

                                                          THE COURT:        Why not?

                                                          MR.WOOLF:          Because we didn't have documents, and we
                                                          didn't want to do it twice, Your Honor.

                                                                               *       *         *      *

                                                                The only other thing I was going to say, Your Honor --
                                                          and he hasn't addressed it -- there's no justification for not
                                                          paying the sanction that Your Honor ordered, the $500
                                                          sanction.

                                                          THE COURT:        I'll deal with that.

                                             (N.T.Hearing on Evolution's Third Motion for Sanctions, 7 / 11/ 14, at 20-

                                             23).

                                                          On his own behalf, Dr. Gibney cited Evolution's alleged failure to

                                             respond to his discovery requests as well as the same argument that

                                             Evolution had· not produced any material facts in support of its claims.

                                             For example, Dr. Gibney responded, in part, as follows:

                                                          And note, too, that along the way they point out to documents
                                                          and things that I didn't request [sic] that they know exist
                                                          because they. have it, which raises the question, then what's
                                                          the point? If they've got the document, it's already been
                                                          submitted, why are they bothering me about it? What's
                                                          the problem there?

                                                                               *       *         *      *

                                                          I'm struggling to do the right thing here, Judge, with respect
                                                          to the orders against me, the subpoenas and my refusal to
                                                          produce discovery. I do not want to disrespect this Court but,




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                          candidly, I do demand to be treated fairly, and to this point, I
                          am not.

                                ·Theissue is that Evolution's counterclaims against
                          me should have been dismissed as a matter of law. I
                          submitted a motion for summary judgment followed by a
                          motion for reconsideration, and I demonstrated without
                          question the complete absence of material facts. . . . And I
                          would like to ask. the Court, because we are on the record and
                          the Court is going to sanction me again, will the Court state
                          whether the Court has seen any contract between Evolution
                          and any third party that I allegedly tortiously interfered with.
                          And I ask the Court to state for the record --

                          THE COURT:       No, you may not.        The Court makes
                          determinations. You have to prove your cases.

                          MR. GIBNEY:        Okay. Well --

                          THE COURT:         This is not a dialogue.

                          MR. GIBNEY:        Understood.

                          THE COURT:         This is a court proceeding.

                          MR. GIBNEY:        All right. I appreciate that.

                                 So I will maintain that -- and continue to maintain that
                          there were no material facts for any of their counterclaims
                          against me. and that they should have been dismissed as a
                          matter of law. And I will not give up that fight. I'll take it as
                          far as I have to go.

                                                *             *                    *   *

                                And again, I ask the Court to think about this: We're
                          not here today because of the abuse of process claim against
                          them. It's the issue of does this Court really believe, despite
                          the fact that I have demonstrated that there are no material
                          facts after reading this -- I read this internal e-mail between
                               v-



                          the two Evolution principals.       I again ask this Court,
                          respectfully, ·to step back, to consider if what. I am saying
                          is right, and if it's fair to. make me produce these
                          communications to · these individuals, to this company,



                                                                          15
                                                                                             ..   ) ;··




                                                                                                          Circulated 07/28/2015 04:07 PM




                                               Apotex, when there's not a scintilla of evidence that they
                                               even know Apotex. There is nothing.

                                      (Id: at 30-32, 42) (emphasis added).

                                               On July 30, 2014, the court issued an order addressing Evolution's

                                      third motion for sanctions, which directed in pertinent part as follows:

                                               4.    On numerous occasions the Court has made it explicitly
                                               clear to both [Dr. Gibney] and Defense Counsel that the
                                               conduct displayed in this process is unacceptable.    Both
                                               Parties are on notice that any evidence, whether documents,
                                               testimony or thing, not produced in Discovery by September
                                               30, 2014, either in whole or as part of a list SHALL be
                                               PRECLUDED at any trial in this matter; and

                                               5.     [Dr. Gibney] has until Friday, August 8, 2014, to pay
                                               Counsel fees and costs to Defendant in the amount of Five
                                               Hundred Dollars ($500.00) pursuant to this Court's May 16,
                                               2014 Order.4 Failure·,
                                                                        to do so will result in a Rule to Show
                                               C.au'.se as to why [Dr. Gibney] should not be held in Contempt
                                               of Court.

                                                       4 The check should be made payable to Drinker Biddle &
                                                       Reath LLP and delivered to the attention of David J.
                                                       Woolf,Esquire: Counsel is to notify Chambers in writing
                                                       on Monday, August 11, 2014, if [Dr. Gibney] fails to
                                                       present the Five Hundred Dollars ($500.00) payment by
                                                       end of business day on August 8; 2014.

                                      (Order: Evolution's Third Motion for Sanctions, docketed 7 / 30 / 14, at pp.

                                      3-4) (emphasis in original).

                                                Dr. Gibney didnot deliver a check to Mr. Woolfby Friday, August 8,

                                      2014. Instead, Dr. <;}ibney
                                                                sent a letter by regular mail to the undersigned

                                      dated and postmarked August 8, 2014, requesting a delay of his payment

                                      of the court ordered sanctions until the entry of a final order in the case.

~~~_:;\j·'::'. "::·          i'       The four (4) page letter is replete with Dr. Gibney's reasons why he


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                                                      believes the court is in error, why Dr. Gibney's version of the law is the

                                                      correct one and why he should not have to abide by the court ordered

                                                      sanction unless and until he fails on appeal. The undersigned received

                                                      this letter on Monday, August 11, 2014. On that day, the court issued an

                                                      order denying Dr. Gibney's request to delay payment and attaching Dr.

                                                      Gibney's August 8, 2014 letter for the record. (order docketed 8/ 11/ 14).

                                                                                When Dr. Gibney still had not paid the Five Hundred Dollar

                                                      ($500.00) sanction as of August 25, 2014, the court issued a Rule to Show

                                                      Cause Order. The order listed a rule return date of September 15, 2014,

                                                      for Dr. Gibney to file his answer as to why he should not be held in

                                                      contempt of court, as well as a date two weeks later, September 29, 2014,

                                                      for argument and hearing, if necessary.                      (order docketed 8/26/ 14).      In

                                                      addition, the order notified Dr. Gibney of the possibility of imprisonment

                                                      should the court find him in contempt, until he purged the contempt, and

                                                      recommended that he obtain counsel.1 (Jd.).



                                                       I
                                                                Specifically the order provided as follows:

                                                                                THE PLAINTIFF IS HEREBY ON NOTICE THAT IF THE COURT
                                                                                FINDS THAT PLAINTIFF IS IN CONTEMPT OF THE ORDER(S),
                                                                                THE COURT WILL TAKE THE APPROPRIATE ACTION TO
                                                                                INSURE THE VINDICATION OF THE AUTHORITY OF THE
                                                                                COURT, WHICH MAY INCLUDE IMPRISONMENT UNTIL SUCH
                                                                                TIME AS THE CONTEMPT IS PURGED. THEREFORE, THE
                                                                                PLAINTIFF IS PLACED ON NOTICE OF THE STRONG
                                                                                RECOMMENDATION      TO OBTAIN COUNSEL.       IF THE
                                                                                PLAINTIFF CANNOT AFFORD TO HIRE A LAWYER, THE
                                                                                OFFICE LISTED BELOW MAY BE ABLE TO PROVIDE
                    ..... ~
                                                                                PLAINTIFF WITH INFORMATION ABOUT AGENCIES THAT
         - ·.-::·        ,
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:_-




                              Dr: Gibney did not file an answer to the Rule to Show Cause Order

                        by September 15, 2014. Instead, on September 15, 2014, Dr. Gibney filed

                    a "Motion for Clarification on the August 25, 2014 Order". In an order

                    dated September 16, 2014, and docketed on September 17, 2014, the

                   co;1rt repeated the clear and unambiguous portion of its July 30, 2014

                   order directing Dr. Gibney to pay counsel fees and costs in the amount of

                    Five Hundred Dollars ($500.00) pursuant to previous court orders and

                   that failure to comply would result in a Rule to Show Cause.                 (order

              · docketed 9 / 17/ 14). In addition, the court explained that it had issued an

                   order denying Dr. Gibney's request to delay payment.           (Id.).   Therefore,

                   when Dr. Gibney still had not paid the sanction, on August 25, 2014, the

                   court had issued a Rule to Show Cause.             Accordingly, the undersigned

                   reminded Dr. Gibney of the argument                and hearing, if necessary.?

                   previously scheduled for Monday, September 29, 2014, and the possibility

                   of imprisonment should the court find him in contempt of the court's

                   previous orders. (Id. at p. 2). Again, the undersigned recommended that

                   Dr. Gibney obtain counsel. (Id. at p. 3).




                              MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A
                              REDUCED FEE OR NO FEE.

                   (Order docketed 8/26/14) (emphasis in original).
                   2
                  A hearing on the Rule to Show Cause would not be necessary, for example, if Dr.
              · Gibneywere to pay the Five Hundred Dollar ($500.00) sanction prior to the hearing.


                                                               18
                                                                                                                Circulated 07/28/2015 04:07 PM
        · ·{:                \·'=· ·:';~ 1; .
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                                                       On September 29, 2014, the undersigned conducted a hearing on

                                               the Rule to Show Cause as to why Dr. Gibney should not be held m

                                               contempt of this court's orders. Dr. Gibney testified, in part, as follows:

                                                       Your Honor, I believe that a Motion for Contempt -- or a
                                                       Contempt Order would be an [abuse of] discretion for the
                                                       followingreasons. As an initial matter, as I indicated to the
                                                       Court, the Sanctions Order is not appealable because it is
                                                       interlocutory, and I can't appeal that until there is a final
                                                       Order. And I believe I -- as I stated to the Court -- I believe
                                                       there was no urgency to the $500.00 to Evolution at this
                                                       point, and· they could have waited until a final Order if I
                                                       did not properly appeal that within the requisite time,
                                                       then I would pay it.

                                                             More importantly, I believe that the events leading to
                                                       this hearing stems from clear errors of law, which will ·
                                                       form the basis of my appeal of the sanctions and the
                                                       Contempt Order.

                                                             As I indicated many times, in motions and to the Court,
                                                       the Motion for Summary Judgment should have been granted.
                                                       There is no question of this. The law is clear, "In the absence
                                                       of material facts, summary judgment shall be granted." The
                                                       clear wording at [Rule] 1035, and ample Pennsylvania case
                                                       law, makes this clear.

                                                            Evolution has. produced no material facts for their
                                                       counterclaims against me. I have amply demonstrated this.

                                                              In the Order denying the Motion for Summary
                                                       Judgment, the Court appears to believe that because I did not
                                                       file preliminary objections, we must wait for all discovery to
                                                       take place and that is not what the law says.

                                                                             *      *        *   *

                                                             The last thing I would say at the moment ... I cited on a
                                                       couple of occasions Ertel v. Patriot-News Company. The
                                                       Court has indicated that it is aware of that particular case, it's
                                                       well known, and I understand that, however, in one of the
                                                       Orders the Court indicated that I had improperly cited that


      '-•.      ..   -~ ·.
                                                                                        19


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                                                                                          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


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                               ._. ··: ...:.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
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                                .;.




                                                                             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 followedwith 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


                                                                                                     23
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                                                                                          Circulated 07/28/2015 04:07 PM




                                       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. ·

                        (Appellant'sconcise statement filed October 27, 2014).



                        IV.      DISCUSSION

                                 Preliminarily, this court finds it important to note in this particular

                        case that pursuant to Pennsylvania law, "a party remains bound by the

                        Rules of Court even in the absence of counsel".            Cove Centre, Inc. u.

                        Westhafer Construction, Inc., 965 A.2d 259, 262 (Pa.Super. 2009) (citing

                        Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, [315 n. 5,] 681 A.2d

                        167, 170 n. 5 (1996)). Pro se status confers no special benefit upon a

                        party.    "To the contrary, any person choosing to represent himself in a

                        legal proceeding must, to a reasonable extent, assume that his lack of

                        expertise and legal training will be his undoing." In re Ullman, 995 A.2d

                        1207, 1211-12 (Pa.Super. 2010) (citation omitted). Moreover,while a pro

                        se litigant may be entitled to some latitude, under no circumstances is it

                        acceptable for that litigant to substitute his own version of the law for

                        established court rules and procedures.        See e.g. Dr. Helicopters, LLC u.




           ,,...   ..                                           24
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                                                                           Circulated 07/28/2015 04:07 PM




South Whitehall Township, 2013 WL 3960886 at *6 n.15 (Pa.Cmwlth.

January 30, 2013) (unpublished memorandum opinion).

       In his first three issues on appeal, Dr. Gibney complains that the

undersigned erred by not 1) following a five-step procedure prior to

holding him in contempt; 2) givinghim the opportunity to make immediate

payment to avoid imprisonment, and 3) allowing him to wait to pay the

sanction until he failed to appeal or lost on appeal. In his fourth and fifth

issues presented, Dr. Gibney claims that the court abused its discretion in

imposing the underlying $500.00 sanction in the first instance because

the court, instead,              should have granted      his motion for summary

judgment.              Dr. Gibney levels a general complaint in his sixth issue that

the court erred or abused its discretion by imposing sanctions, finding

him in contempt and sentencing him to prison.                     As these claims are

intertwined, the court will address them together.P                      Dr. Gibney is

mistaken and his protestations warrant no relief.

       The applicable standards on review of an order finding a party in

contempt are as follows. The "scope of review when considering an appeal

from an order holding a party in contempt of court is narrow." Rhoades v.
3
    To the extent that Dr. Gibney is challenging the court's denial of his motion for
summary judgment as premature in his fourth and fifth issues, that challenge is not yet ripe
for appeal. See e.g. National Casualty Company v. Kinney, 90 A.3d 747 (Pa.Super. 2014)
(explaining order is final and appealable if it disposes of all claims and all parties);
Bridgeport Fire Litigation, 51 A.3d 224 (Pa.Super. 2012) (reiterating Superior Court may
reach merits of appeal taken from a final order or an order certified as a final order, an
interlocutory order appealable as of right, an interlocutory order appealable by permission
or a collateralorder), Accordingly, this court will not address that challenge herein.



                                              25
c~/· ~\/~: ·( Y ·~.:: -,·~.·    .    • -~-.\!     ! .: '";r .•



                          -·.:-?'.   ·~:_;   1. I",·.                                                                  Circulated 07/28/2015 04:07 PM




                                                Pryce, 874 A.2d 148, 153 (Pa.Super. 2005) (en bane) (citation omitted]."

                                                The Superior Court will reverse only upon a showing of a clear abuse of

                                                discretion. Id. (citation omitted); Harcar u. Harcar, 982 A.2d 1230, 1235

                                                (Pa.Super. 2009) (citation omitted). The Court places "great reliance on

                                                the sound discretion of the trial judge when reviewing an order of

                                                contempt."              Rhoades, supra.    A trial court "abuses its discretion if it

                                                misapplies the law or exercises its discretion in a manner lacking reason."

                                                Habjan u. Habjan, 73 A.3d 630, 637 (Pa.Super. 2013) (citation omitted);

                                                Harcar,            supra   at 1234.    Appellate courts defer to the trial judge's

                                                credibility determinations            as that court has had the opportunity to

                                                observe the witness' demeanor.                Habjan,   supra at 644 (citing Harcar,

                                                supra at 1236).

                                                                 "Each court is the exclusive judge of contempts against its process.

                                                The contempt power is essential to the preservation of the court's

                                                authority and prevents the administration of justice from falling into

                                                disrepute."            Harcar, supra at 1235 (citation omitted). The Harcar Court

                                                explained the process as follows:

                                                                 The five elements deemed essential to a civil contempt
                                                                 adjudication are: (1) a rule to show cause why attachment
                                                                 should issue; :(2) an answer and hearing; (3) a rule absolute;
                                                                 (4) a hearing on the contempt citation; and (5) an
                                                4
                                                  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." Stahl v. Redcay, 897 A.2d 478, 487 n. 2 (Pa.Super. 2006)
                                                (comparing Markey v. Marino, 521 A.2d 942, 944 (Pa.Super. 1987) with Rhoades, supra).
                                                Because the Court may conclude that this matter involves unusual circumstances, the
                                                undersigned will address the merits.


                                                                                               26
                                                .:,     .

                                                                                                                                               .···-   _   ....
                                                                         Circulated 07/28/2015 04:07 PM




                adjudication.       "Fulflllment of all flve factors is not
                 mandated,-·however." "[T[heessential due process requisites
               · for a finding of civil contempt are notice and an opportunity to
                 be heard."

Id. at 1234-35 (citation omitted) (emphasis added).

                The distinct    elements    which     must   be demonstrated        by a

preponderance of the evidence are: 1) that the contemnor had notice of the

specific order which he is alleged to have disobeyed; 2) that the act

constituting the violation was volitional, and 3) that the contemnor acted

with wrongful intent.            Habjan, supra at 637 (citing Stahl v. Redcay, 897

A.2d 478, 489 (Pa.Super. 2006)); Harcar, supra at 1235 (citation omitted).

Where the contempt proceedings are predicated on a violation of a court

order that. followed a full hearing, "due process requires no more than

notice of the violations alleged and an opportunity for explanation and

defense."            Diamond v. Diamond, 792 A.2d 597, 601 (Pa.Super. 2002)

(citations omitted).            "Notice is deemed adequate when it is reasonably

calculated to inform a party of the pending action and provides the party

an opportunity to present objections to the action." Pennsy Supply, Inc. v.

Mumma, 921 A.2d 1184, 1197 (Pa.Super. 2007) (citation omitted).

                It is also common followingan adjudication of "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



                                              . 27


...   ,'   '
                                                                           Circulated 07/28/2015 04:07 PM




~.
r,


             A.2d 1014, 1016 (Pa.Super. 2004).          "The order alleged to have been

             violated 'must be definite, clear, and specific - leaving no doubt or

             · uncertainty in the mind of the contemnor of the prohibited conduct' and is

             to be strictly construed."    Id. at 1017 (citation omitted) (emphasis in

             original); accord Stahl, supra at 489. (citation omitted).

                   In support of his objections and refusal to comply with the discovery

             requests and two court orders, Dr. Gibney erroneously relied upon federal

             court cases, including Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937

             (2009); Bell Atlantic Corporation u. Twombly, 550 U.S. 544, 127 S.Ct. 1955

             (2007), and Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008).

             These cases are readily distinguishable for several reasons, not the least of

             which is their procedural posture. Each matter was before the respective

             federal court on a motion to dismiss a complaint pursuant to the Federal

             · Rules of Civil Procedure.    Here, Dr. Gibney did not file preliminary

             objections in the nature of a motion to dismiss the counterclaims but,

             rather, attempted to avoid responding to discovery utilizing that standard.

                   Dr. Gibney also insisted on several occasions that the Pennsylvania

             Supreme Court has held that parties need not respond to discovery

             requests until the opposing party has produced evidence of material facts

             · in support of their case. Citing Ertel u. Patriot-News Company, supra, Dr.

             Gibney has adamantly ·denied that he is under any obligation to comply

             with the court's order compelling discovery responses, that he is right and




                                                   28
     .: '!




                    .-_;_,•:v.:   ...
                                                                                    Circulated 07/28/2015 04:07 PM


.,·
          that the court has a "misunderstanding of summary judgment and when

          it can be brought." (N.T. Hearing, 9/29/ 14 at 8-9). In fact, if this court

          had done what it should have done, according to Dr. Gibney, and granted

          his motion for summary judgment, he opines that his "objections to

          producing discovery based             on the absence          of material facts, the

          subsequent sanctions, contempt finding, and imprisonment, would not

          have occurred." (concise statement, filed 10/27 / 14, at p. 2). Not one of

          these cases supports Dr. Gibney's position.f

                   Assuming for the sake of argument that this court's May 16, 2014

          Order is ripe for appeal, 6 the imposition of sanctions for a party's failure to

          comply with discovery is also subject to the trial court's discretion "as is

          the severity of the sanctions imposed."                 Cove Centre, supra at 261

          (citations omitted). Accord The Philadelphia Contributionship Insurance

          Company v. Shapiro, 798 A.2d 781, 784 (Pa.Super. 2002) (affirming

          5
            Demonstrating that he still does not understand the court's orders or the law, Dr. Gibney
          recently opined as follows:

                   In its opinion, the Court (Judge Thomas Rogers) denied Gibney's MSJ on
                   Evolution's counterclaims as "premature," (Dkt# 114) agreeing that there
                   are no material facts but stating that Gibney should have objected to the
                   lack of material facts and specificity with preliminary objections, not a
                   motion for summary judgment. Also, if Gibney does not like the fact that
                   Evolution has not produced material facts, or refuses to do so, then Gibney
                   has the burden of compelling Evolution to produce something he doesn't
                   want-material facts that he did something wrong. There is no question
                   that this court-ordered masochism is an error of law.

          (Counterclaim Defendant Leo Gibney's Opposition to Evolution's Motion to Overrule
          Objection to Subpoena to Third Party Healogix, filed 1/2/15, at 3) (emphasis in original).
          6
      .       See Stahl, supra at 487 n. 2.


                                                       29
                                                                                         ' . ~. -   ..   ··,.·       ,·.1.-,   ..-;-. ..... . . ·.'.



                                                                                                                                                               Circulated 07/28/2015 04:07 PM

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                                                           dismissal of claims for failing to obey orders to comply with discovery

                                                           requests).        As the trial court stated in Hopkins v. Byes, 954 A.2d 654

                                                           (Pa.Super. 2008), "[i]t has been this [c]ourt's experience that awarding

                                                           attorney fees often motivate[s] the losing party to refrain from continuing

                                                           contemptible conduct." Id. at 659 (awarding attorneys' fees as a sanction

                                                           for conternpt).

                                                                       The Pennsylvania appellate courts have also made clear:

                                                                       [t]he trial court is responsible for overseeing "discovery
                                                                       between the parties 'and therefore it is within that court's
                                                                       discretion to determine the appropriate measures necessary to
                                                                       insure adequate and prompt discovery of matters allowed by
                                                                       the Rules of Civil Procedure." Discoveryrulings are "uniquely
                                                                       within the discretion of the trial judge," and will not be
                                                                       reversed unless they are deemed to represent an abuse of
                                                                       discretion.

                                                                                                     *           *                                     *   *

                                                                       A party's belief that discovery orders are wrong does not
                                                                       justify or excuse its violation of those orders. Rather,
                                                                       such defiance is a direct affront to the authority of the trial
                                                                       court and to the integrity of the judicial system and rule of
                                                                       law.

                                                                       A litigant cannot be permitted to determine what constitutes
                                                                       discoverable information. The Pennsylvania Superior Court in
                                                                       addressing a similar discovery issue in George [ v. Schirra, 814
                                                                       A.2d 202 (Pa.Super. 2002)), expressed its reluctance "to allow
                                                                       a participant in a lawsuit to dictate the determination of what
                                                                       is, and what is not, relevant. To allow this practice is akin
                                                                       to allowing a participant in a contest to _ referee the
                                                                       contest. In the contest of litigation, the judge and the
                                                                       judge alone, acts as the referee."

                                                           Rohm and Haas Company v. Lin, 992 A.2d 132, 143 (Pa.Super. 2010)

                                                           (some citations omitted) (emphasis added).



                                                                                                                               30
                                                                              Circulated 07/28/2015 04:07 PM




                     In the instant   case,   this court   did not abuse   its discretion     in

           awarding      the Five Hundred       Dollar ($500.00) in attorneys'    fees as a

           sanction against Dr. Gibney for his repeated failure to comply with the

           court's     discovery orders.      Additionally, the undersigned    provided Dr.

           Gibney with notice on several occasions as to the very real possibility of

           imprisonment      if he continued to disobey the court's orders.    (See e.g. N.T.

           Hearing, 12/11/13,         at p. 17; December 20, 2013 order at p. 2; N.T.

           Hearing, 4/ 17/ 14, at p. 8; August 25, 2014 order, and September 16,

           2014 order). The court also afforded Dr. Gibney several opportunities to

           testify and present evidence that would purportedly excuse his inability to

           comply with the undersigned's May 16, 2014, and July 30, 2014 orders.

           Not only was Dr. Gibney afforded an opportunity to be heard at the

           hearing on Evolution's second motion for sanctions on April 17, 2014,

           which resulted in the May 16, 2014 order imposing the Five Hundred

           Dollar ($500.00) sanction, he was also provided the opportunity to be

           heard at a hearing on July 11, 2014, on the third motion for sanctions

           based in part upon his continued failure to comply with that May 16,

           2014 order.

                     In its August 25, 2014 order, the court deliberately provided Dr.

           Gibney with a staggered rule return date between his answer and the

           hearing date so as to afford him additional due process. Rather than take

           the opportunity to provide mitigating reasons as to why he should not be



...
      ·'
                                                     31
· r ·"~·:·,                     ·jt>·',;,; i:~J\)?}:M(.r"'' ····-
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                                                   ? -~,;,,~\~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
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    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


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                    V.                                             NO iol2·109JJ

      HV<)LlrrlON MARKETI NO
                                                                                             ------
      RE:SE:Al!CH, LLC
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     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

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     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:l<Tl!IISION 2011




                                               \ 2.
                                                  THOMAS P. ROG


Cr>i;tih cf Lh,.. &bove Ordet
$en1 on: VS/ .l.S/ J <I t.o:
By FiriJt...CJa-5sM•il:
Lee t..T1bnc:.Y, PII\JnrllY Pro se
Darid J. Woolf. Esquile, C'-0\.1nscl for ocrcrid.tint. E:voluljnr, ~{Arkit.On,;;
      R"""1'1tn, LLC
D~nf\i~ tw'L Mu!1:,rtNr, l::sqlli.rt, CollnM'l for- Defendant, 8YC1llltion
       .MarJtC'tin_g, Rcnca.rch, LLC




                                          ,
                                                                                 Circulated 07/28/2015 04:07 PM




 IN THE 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 ,
                             PENNSYLVANIA



                                                      :
 LEO GIBNEY,                                          :
                                                      :       CIVIL ACT. NO.
                        Plaintiff,                    :       2012-10933
                v.                                    :
                                                      :
 EVOLUTION MARKETING RESEARCH, LLC                    :
                                                      :
                        Defendant.                    :
                                                      :



                        PLAINTIFF LEO GIBNEY’S
     MOTION FOR CLARIFICATION OF THE COURT’S AUGUST 25, 2014 ORDER


        Plaintiff, Leo Gibney, respectfully moves this Court to clarify its August 25 order
(Exhibit A) threatening contempt and possible imprisonment. In support of this motion,
Plaintiff avers as follows.

   1. The Court accepted Plaintiff ’s responses in the July 30 order noted in the
      August 25 order.
   2. Although Gibney signed his responses to the interrogatories and document
      requests, the Court concluded the responses were not properly verified.
   3. The Court directed Gibney to provide verified responses to Evolution within
      72 hours during oral argument with respect to the July 30 order.
   4. Plaintiff provided verified responses to Evolution ’s counsel within 24 hours.
   5. Plaintiff is not aware of any petition or motion for contempt filed by
      Evolution against Gibney.

As a result of the above, Plaintiff respectfully requests that the Court clarify what the threat of
contempt and possible imprisonment is based on (see Diamond v. Diamond, 792 A.2d 597, 600
(Pa. Super 2000) For civil contempt to be found the terms of the court’s order or orders violated
must be “definite, clear and specific.” Id. at 1210.




       Leo Gibney, Pro se
       September 15, 2014
                                                                             Circulated 07/28/2015 04:07 PM


       IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
                           PENNSYLVANIA
                         CIVIL ACTION - LAW


     LEO GIBNEY

                 v.                                     NO. 2012-10933

     EVOLUTIONMARKETING
     RESEARCH,LLC                                          1111 mr.:~,1~IIDII Il
                                                           2012-10933-0159    9/29/2014 2:46 Pi\l
                                                                                     Order
                                                                                                    # 9977020

                                                           Rcpt#Z2224569   Fe~:$0.00
                                       ORDER                          Mark Levy- MontCo Prothonotarv


           AND NOW, this 29th day of September 2014, the Court having set

     a Rule Return Date and Hearing to Show Cause as to why Leo Gibney

     should not be held in contempt      of this Court's       Orders directing                Leo

     Gibney to pay Counsel. fees and costs to Evolution Marketing Research,

     LLC's Counsel in the amount of Five Hundred Dollars ($500.00) for the

     filing of the Second Motion for Sanctions     and the Court having held a

     Hearing on Monday, September      29, 2014, it is hereby ORDERED that

     LEO GIBNEY is HELD IN CONTEMPT.

           LEO GIBNEY shall serve a period of IMPRISONMENTfor a period

     of NINETY (90) DAYS FORTHWITH at the MONTGOMERY COUNTY

     CORRECTIONAL FACILITY unless          Leo Gibney purges                 that contempt

     prior to the· Ninety (90) Day period        of Imprisonment              by providing

     payment in the. amount of Five Hundred Dollars ($500.00) to Evolution

     Marketing Research, LLC's Counsel as directed by the Court's Orders of

     July 30, 2014 and May 16, 2014.


                                             \    BY T~E      co~~-                                         .   j.



                                                    7
                                                  TIIOMAS P. ROGERS, J.
This order/judgmentwas docketed and sent on 09/29/2014 pursuantto Pa. R. C. P. 236.                                  ~,.·
                                                          Circulated 07/28/2015 04:07 PM



Copies of the above Order
Sent on 09/29/ 14 to:
By Hand-Delivery:
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
By E-Mail:
Sean P. McGee, Assistant Warden, Montgomery County Correctional
      Facility




                                   2
                                                                                             Circulated 07/28/2015 04:07 PM




                                                August 8, 2014

                                           VIA FIRST CLASS MAIL

The Honorable Thomas P. Rogers
Montgomery County Court House
2 East Airy Street
PO Box 311
Norristown, PA 19404-0311

         Re:    Leo Gibney v. Evolution Marketing Research, No. 2012-10933

Dear Judge Rogers:

         I am writing in response to your order dated July 30, 2014, attached here. In your order,
you directed me to pay Evolution $500 by August 8. I am asking for postponement of payment
until a final order in this action.
        I have communicated to Evolution that I will appeal the order granting
sanctions. However, I cannot appeal that now but must wait for the final order in this action. An
interlocutory appeal is not available to me. This is also true of the orders denying my motion for
summary judgment (MSJ) and motion for reconsideration. I will appeal those also.

        The Court is aware that I continue to object to this Court allowing Evolution to proceed
with its counterclaims against me when this Court is aware that there are no material facts to
support them. This Court is aware that not only are there no material facts, but that Evolution
objects to providing material facts because I will not produce discovery first. All of this was
detailed in my motion for summary judgment (Dkt#96), my motion for reconsideration
(Dkt#117), as well as my objections to discovery requests.


    5.     Regarding paragraph 78, provide the names of the companies, the individuals (names and
           contact information), and the specific projects that they likely "would have contracted" to
           Evolution.

    RESPONSE:

           Evolution specifically objects that Interrogatory No. 5 is overly broad, vague, and

    premature, in that it seeks information concerning the effects of Dr. Gibney's tortious conduct, as

    outlined in Evolution's counterclaims, before Dr. Gibney has permitted Evolution any discovery

    into either his claims or the counterclaims. Subject to and without waiving these objections,

    Evolution does not have this information at present, and will supplements its response when

    additional information is available.




                                                        1
                                                                                   Circulated 07/28/2015 04:07 PM




        I read Evolution’s responses to my discovery requests into the record during oral
argument for the sanctions. Among the frivolous claims against me is tortious interference with
existing and prospective contractual relations. As just one example (all of this is in the MSJ and
motion for reconsideration), above is Evolution's response to my request for material facts.
          “Overly broad and vague” for me to ask my accusers for the names of the companies and
details of the contracts with which I tortiously interfered? As if that is not enough, they will
supplement their objections “when additional information is available.” Please read this again.
It is in the record. Please consider an appellate court reaction to this as that court looks for
material facts for Evolution’s counterclaims. The appellate court will expect that this Court finds
material facts, since my MSJ and motion for reconsideration were denied. The appellate court
will look to see if sanctions against me were an abuse of discretion, as I will claim.

       During oral argument for sanctions, I asked the Court if the Court had been presented
with any contracts with which I allegedly interfered. The Court appears to believe the question
was inappropriate and/or that I was asking the Court to provide counsel. I was not asking this
Court to provide Counsel.

        All of Evolution’s counterclaims require, by law, that they adduce material facts of harm.
That is the law. Vague, unsupported claims will not suffice. I cited Pennsylvania law on this in
my MSJ. We all know this.

       As I demonstrated in my MSJ and motion for reconsideration, they have pleaded no
damages. Below is Evolution’s response to my request for material facts of harm. Again, they
objected. They are suing me but insist I go first. In addition, they insist that the facts supporting
harm caused by me are “confidential.”



   3.     Regarding paragraph 63 and 68, provide documentation that supports the harm and loss
          of current and future business opportunities alleged.

   RESPONSE:

          Evolution specifically objects to engaging in further discovery, including the production

   of documents responsive to Document Request No. 3, until Dr. Gibney complies with his own

   discovery obligations. Further, to the extent that documents responsive to Document Request




                                                   2
                                                                                  Circulated 07/28/2015 04:07 PM




.
    No. 3 are confidential,   Evolution specifically objects to producing those documents until a

    protective order is in place, whether by stipulation or by court order following resolution of

    Evolution's Motion for Protective Order.     Subject to and without waiving its objections,

    Evolution will produce documents responsive to this request.


        “Confidential?” And I am ordered to pay $500 because I object to producing discovery
for claims where the alleged harm I have caused is allowed to remain a mystery. Evolution has
produced nothing.

        This is what an appellate court will see. Even with a PO in place, they are not waiving
their objection to producing material facts to support harm and loss. Please ponder this.

       I have filed a MSJ, a motion for reconsideration, endured 3 or 4 motions to compel, an
equal number of motions for sanctions, and an equal number of oral arguments. And I beat the
same drum about the complete lack of material facts for Evolution’s counterclaims. They have
deposed not a single witness in this action that is now more than 2 years old. And they objected
and sought to quash subpoenas I directed to Merck employees who should be supporting
Evolutions claims against me.

       This is a game to Evolution. They used frivolous counterclaims against me to get me to
abandon my action against them. That is abuse of process. They are winning now but they will
not prevail. There is no question of this.

      I respectfully ask the Court to do what the law requires. Vacate the orders denying my
MSJ and motion for reconsideration and dismiss Evolution’s counterclaims against me. Denying
my MSJ and motion for reconsideration were errors of law. There is no question of this.

       The law requires dismissal of Evolution’s counterclaims. The law has not been followed.
Evolution has pleaded no damages. What is there for a trier of fact to decide? According to
Evolution, it’s “confidential.” They object to telling me. They will tell me the names of the
companies and details of the contracts I tortiously interfered with “when additional information
becomes available.” This is what an appellate court will see. This Court should be insulted.

        I am fully prepared and eager to defend my rights. By allowing my accusers to proceed
in the complete absence of material facts, this Court has denied my right to have the claims
against me dismissed.

       This Court, in the opinion denying my MSJ, appears to believe that if Evolution refuses
to provide material facts for its claims, including harm caused by me, the burden shifts back to
me—the defendant—to compel them to produce things I don’t want. Please ponder this so that
                                                    3
                                                                                           Circulated 07/28/2015 04:07 PM




the flaw in this reasoning becomes clear. Evolution objects to providing material facts for its
claims against me and somehow I have more work to do to get them to properly sue me. Of
course, this cannot be. The law requires dismissal in the absence of material facts for claims.
The law does not require the defendant to work harder to force his accuser to support its
accusations, if his accuser does not want to support them. The law requires dismissal. This is
not a game.

        I asked Counsel if they would agree to postpone payment of the $500 until after the final
order in this action. I told them I would pay it if I did not file a timely appeal. Evolution would
not agree.


        Since the law requires this Court to dismiss Evolution’s claims against me, the only fair
thing to do with respect to the sanctions is to vacate that order as well.1
        In any event, since I cannot appeal the sanctions order now, I am asking for
postponement of payment until after the final order. You have set deadlines for the close of
discovery and for the trial praecipe, all of which should occur in the next several months. I hope
you will agree that there is no urgency to the payment of this $500 fine and that by simply
postponing it until the final order, this matter can proceed to a final resolution, at this stage,
efficiently and without undue additional burden on the parties and the Court.

        Respectfully, please review my MSJ (Dkt#96) and motion for reconsideration (Dkt#117)
again. Please dismiss Evolution’s counterclaims, as the law requires. Courts may change an
order at any time, as justice requires.

        I also ask that you vacate the order granting sanctions against me for $500. If you will
not, please postpone the payment due date.

Thank you for your consideration.

Leo Gibney



Pro se
August 8, 2014


Cc: Dennis Mulgrew, David Woolf




1
 I point out also that the initial order granting $500 sanctions ordered me to provide certain documents requested
when, in addition to stating my objections, I stated that I did not have documents responsive to the requests.

                                                        4
                                                                                      Circulated 07/28/2015 04:07 PM




,;j"             IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
                                     PENNSYLVANIA
                                   CIVIL ACTION - LAW


         LEO GIBNEY

                            v.                                      NO. 2012-10933

         EVOLUTION MARKETING
         RESEARCH, LLC


             ORDER: PLAINTIFF/COUNTERCLAIMDEFENDANT GIBNEY'S REQUEST TO
               DELAY PAYMENT OF SANCTIONS UNTIL ENTRY OF A FINAL ORDERl


                  AND NOW, this 11th day of August 2014, the Court having reviewed

         correspondence             dated and mailed August 8, 2014,2 and received on August 11,

         2014 from Plaintiff/Counterclaim             Defendant Leo Gibney requesting the delay of

         his payment of Court ordered sanctions until the entry of a final order in this

         case, it is hereby ORDERED that Plaintiffs Motion is DENIED.3


                                                        BY THE COURT:




       2012-10933-0141 8/11/2014 11:42 AM # 9913486
                            Order
       Rcpt#Z2186307 Fee:$0.00
                Mark Levy- MontCo Prothonotary




         I
           Although not properly filed with the Prothonotary, the Court will treat Plaintiff/Counterclaim
         Defendant's correspondence as a motion for reconsideration.
         2
          The Court notes payment was due on August 8, 2014, pursuant to its July 30, 2014 Order. The
         Court imposed sanctions as a result of Plaintiffs failure to comply with previous Court orders.
         3
           The Court incorporates Plaintiff/Counterclaim Defendant's correspondence as well as the
         Court's previous order dated May 16, 2014, attached hereto. - -       .                - -




         This order/judgmentwas docketed and sent on 08/11/2014 pursuantto Pa. R. C. P. 236.
                                                                                  Circulated 07/28/2015 04:07 PM




 1j

        Copies of the above Order
        Sent on 08/ 11 / 14 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




                                                 2
                                                                                                        Circulated 07/28/2015 04:07 PM
              _.,..,..,,
.... ~"' ..




                                  Re:     Leo Gibney v. Evolution MarketingResearch, No. 2012-10933

                           Dear Judge Rogers:

                                    I am writing in response to your order dated July 30, 2014, attached here. In your order,
                           you directed me to pay Evolution $500 by August 8. I am asking for postponement of payment
                           until a final order in this action.
                                   I have communicated to Evolution that I will appeal the order granting
                           sanctions. However, I cannot appeal that now but must wait for the final order in this action. An
                           interlocutory appeal is not available to me. This is also true of the orders denying my motion for
                           summary judgment (MSJ) and motion for reconsideration. I will appeal those also.

                                   The Court is aware that I continue to object to this Court allowing Evolution to proceed
                           with its counterclaims against me when this Court is aware that there are no material facts to
                           support them. This Court is aware that not only are there no material facts, but that Evolution
                           objects to providing material facts because I will not produce discovery first. All of this was
                           detailed in my motion for summary judgment (Dkt#96), my motion for reconsideration
                           (Dkt# 117), as well as my objections to discovery requests.




                                                                           1
                                                                                                  Circulated 07/28/2015 04:07 PM




                       I read Evolution's responses to my discovery requests into the record during oral
               argument for the sanctions. Among the frivolous claims against me is tortious interference with
               existing and prospective contractual relations. As just one example (all of this is in the MSJ and
---- ----- -- -motion'forreconsideration);-above   is-Evolution's responseto-my-request·formaterial-facts~  -------- ------ ---·--·· --·

                          "Overly broad and vague" for me to ask my accusers for the names of the companies and
                details of the contracts with which I tortiously interfered? As if that is not enough, they will
                supplement their objections "when additional information is available." Please read this again.
                It is in the record. Please consider an appellate court reaction to this as that court looks for
                material facts for Evolution's counterclaims. The appellate court will expect that this Court finds
                material facts, since my MSJ and motion for reconsideration were denied. The appellate court
                will look to see if sanctions against me were an abuse of discretion, as I will claim.

                       During oral argument for sanctions, I asked the Court if the Court had been presented
                with any contracts with which I allegedly interfered. The Court appears to believe the question
                was inappropriate and/or that I was asking the Court to provide counsel. I was not asking this
                Court to provide Counsel.

                        All of Evolution's counterclaims require, by law,that they adduce material facts of harm.
                That is the law. Vague, unsupported claims will not suffice. I cited Pennsylvania law on this in
                my MSJ. We all know this.

                       As I demonstrated in my MSJ and motion for reconsideration, they have pleaded no
                damages. Below is Evolution's response to my request for material facts of harm. Again, they
                objected. They are suing me but insist I go first. In addition, they insist that the facts supporting.
                harm caused by me are "confidential."




                                                                    2
                                                                            Circulated 07/28/2015 04:07 PM




       "Confidential?"   And I am ordered to pay $500 because I object to producing discovery
for claims where the alleged harm I have caused is allowed to remain a mystery. Evolution has
produced nothing.

        This is what an appellate court will see. Even with a PO in place, they are not waiving
their objection to producing material facts to support harm and loss. Please ponder this.

       I have filed a MSJ, a motion for reconsideration, endured 3 or 4 motions to compel, an
equal number of motions for sanctions, and an equal number of oral arguments. And· I beat the
same drum about the complete lack of material facts for Evolution's counterclaims. They have
deposed not a single witness in this action that is now more than 2 years old. And they objected
and sought to quash subpoenas I directed to Merck employees who should be supporting
Evolutions claims against me.

       This is a game to Evolution. They used frivolous counterclaims against me to get me to
abandon my action against them. That is abuse of process." They are winning now but they will
not prevail. There is no question of this.

      I respectfully ask the Court to do what the law requires. Vacate the orders denying my
MSJ and motion for reconsideration and dismiss Evolution's counterclaims against me. Denying
my MSJ and motion for reconsideration were errors oflaw. There is no question of this.

       The law requires dismissal of Evolution's counterclaims. The law has not been followed.
Evolution has pleaded no damages. What is there for a trier of fact to decide? According to
Evolution, it's "confidential." They objectto telling me. They will tell me the names of the
companies and details of the contracts I tortiously interfered with "when additional information
becomes available." This is what an appellate court will see. This Court should be insulted.

        I am fully prepared and eager to defend my rights. By allowing my accusers to proceed
in the complete absence ofmaterial facts, this Court has denied my right to have the claims
against me dismissed.

        This Court, in the opinion denying my MSJ, appears to believe that if Evolution refuses
to provide material facts for its claims, including harm caused by me, the burden shifts back to
me-the defendant-to compel them to produce things I don't want. Please ponder this so that
                                                3
                                                                                                            Circulated 07/28/2015 04:07 PM
                                                                                                  · -- -- - - -- -  ·- - -· - ·- -- - - ·- ·- - - - ·-
                                                                                                .:~~:~r ~-~.:~-~: . ~ffi~::;~~~-~-~·:i·-~~~~<.~·:Jl~~:~~~


                    the flaw in this reasoning becomes clear. Evolution objects to providing material facts for its
                    claims against me and somehow I have more work to do to get them to properly sue me. Of
                    course, this cannot be. The law requires dismissal in the absence of material facts for claims.
----------   --- ~-Tlielaw doesnofrequire-tfie-defenaartno-wotk harderto·forc-e-his-accuserto-support-its- -- ------ ---- ------- ----- -
                    accusations, if his accuser does not wantto support them'. The law requiresdismissal. This is·
                    not a game.

                          I asked Counsel if they would agree to postpone payment of the $500 until after the final
                  order in this action. Itold them I would pay it ifl did not file a timely appeal. Evolution would
                  not agree.


                          Since the law requires this Court to dismiss Evolution's claims against me, the only fair
                  thing to do with respect to the sanctions is to vacate that order as well. 1
                          In any event, since I cannot appeal the sanctions order now, I am asking for
                  postponement of payment until after the final order. You have set deadlines for the close of
                  discovery and for the trial praecipe, all of which should occur in the next several months. I hope
                  you will agree that there is no urgency to the payment of this $500 fine and that by simply
                  postponing it until the final order, this matter can proceed to a final resolution, at this stage,
                  efficiently and without undue additional burden on the parties and the Court.

                          Respectfully, please review my MSJ (Dkt#96) and motion for reconsideration (Dkt#l 17)
                  agam. Please dismiss Evolution's counterclaims, as the law requires. Courts may change an
                  order at any time, as justice requires.

                          I also ask that you vacate the order granting sanctions agairist me for $500. If you will
                  not, please postpone the payment due date.

                  Thank you for your consideration.


                  ~ey



                  Augu.st 8, 2014


                  Cc: Dennis Mulgrew, David Woolf




                  1
                  I point out also that the initial order granting $500 sanctions ordered me to provide certain documents requested
                 when, in addition to stating my objections, I stated that I did not have documents responsive to the requests.

                                                                         4
             Circulated 07/28/2015 04:07 PM




Attachment
                                                                                             Circulated 07/28/2015 04:07 PM




      IN THE COURT OF COMMON PLEAS OF MONTGOMERY                                         COUNTY,
                                        PENNSYUtA    li'T A
                           ·-- ·· ---- CMLJ.o..c      ____.:::=-:::c.-"-'--        -~., -  .
                                                                              ----------'---.--
                                                                                     -
                                                                                                    -----f.,       -----·     -




LEO GIBNEY

              v.
EVOLUTION MARKETING
RESEARCH, LLC


      ORDB.R:      EVOLVTlQNS THIRD MOTION FOR SANCTIONS                                 AGAl.NST
             PLAINTIFF/COUNTERCIAIM DEFENDANT LEO GlBNBY
                                      UNDRR RULE 4019

       ARD NOW, this 30th day · of July                    2014. upon consideration of

Defendant/Counterclaim            Plaintiff Evolution's Third Motion for Sanctions

Against Plaintiff/Counterclaim             Defendant Leo Gibney                   Under Rule 4019

("'Motion").the Answers to the Interrogatories and Responses made to the

Request for Production of Documents by Plaintiff, a thorough review of the

entire record as well as the relevant and applicable law and the Court having

heard Oral Argument on July 11, 2014, it is hereby ORDERED that Evolution's

Motion is GRANTED in part and DElfmD ln part.

       Specifically, the Court finds as follows:

              l.     Plaintiff/ Counterclaim        Defendant                 Gibney has      provided

supplemental Answers to certain Interrogatories. The Answers were provided.

late and without the verification as directed by the Court's May 16, 2014




This order/judgment "'ti      docketed and sent on 07fJ0/2014 pursuant to Pa, R. C. P. 236.
                                                                                                                                                                                   Circulated 07/28/2015 04:07 PM




                                      Order.!     The undersigned's               May 16, 2014 Order is incorporated                                                           herein and

- -------- -- --------·-·-       _ .attacbed      hereto;
                        .    .    .        -- - · ·-~- --------------·-·------~   ----- ·-----   -···   -·----------------·   ----~ -~-----···   --------·   ....   -------   -- ---- --- ~ --   -
                                                      2.       Plaintiff/Counterclaim Defendant .Gibney has .incorporated

                                      his previous objections, which the Court explained were inappropriate and in

                                      direct contravention of the Court's Order;

                                                      3.       Plaintiff/Counterclaim                              Defendant Gibney                          has steadfastly

                                      refused to comply with the Court's Order directing him to pay Counsel fees and

                                      costs to Defendant/Counterclaim Plaintiff Evolution;z and.
                                                  .   4.       Plaintiff/Counterclaim                                 Defendant                  Gibney                        has       also

                                      erroneously demanded that this Court serve as his Counsel and provide

                                      explanations as a prerequisite to his compliance with the Court's orders.

                                             Accordingly, it is hereby ORDERED as follows:

                                                      1.       Defendant/Counterclaim                                    Plaintiff's             Motion                       to     dismiss

                                      Plaintiff LeoGibney's Complaint is DENIED;

                                                      2.       Defendant/Counterclaim                                  Plaintiff's Motion for a default

                                      judgment is DBNIED;



                                      1
                                        At Argument. the court instructed Pl.ainti.fl7CounterclaimDefendant Gibney to serve opposing
                                      Counsel with hii Verification to the Answers.
                                      1
                                      Once again, Plaintifl7Coimterclaim Defendant Gibney· is substituting his own version of the
                                   law for established rules and procedures. See e.g. Dr. Helicopters, LLC v. South Whitehall
                                   Township, 2013 WL 3960886 at 6 n.lS (Pa.Cmwlth. January 30, 2013). As the Pennsylvania
                                   appellate courts have made clear: "A party's belief that.discovery orders are wrong does not
                                  justify or excuse its violarion of those orders, Rather, such defiam;e is a direct affront to the
                                  authority of the tri~J court and to the integrity of the judicial system and rule of law." Rohm and
                                  Haas Comf)Qlly )}, Lin, 992 A.2d 132. 143 (Pa.Super, 20 I 0)( citations omitted).
                                                                                              Circulated 07/28/2015 04:07 PM




                  3.      Defendant/Counterclaim                Plaintiff's Motion for an extension



.McilD~<:me.P-t ~Q!l(eJ:"t:1:l:c:,; 01:-cl~ _i_l3 ~!!!i=.:nc;J~.{olJcfw~:
                          a.       All written discovery, including depositions,              shall be

 completed no later than Tuesday, September 30, 2014;3

                          b,       AU dispositive motions shall be filed· of record with the

 Prothonotary's        Office no later than Wednesday, October 15, 2014;

                          c.       All responses to the dispositive motions shall be filed

of record with· the Prothonotary's                 Office no later than Friday, November 14,

2014;and

                          d,      The case is.to be placed on the Triai List by the signing

of a Trial Praecipe within               ten (10) days after said dispositive             motions are

decided;

                  4.      On numerous           occasions       the .Court     has made it explicitly

clear to both Plaintiff/Counterclaim                 Defendant and Defense Counsel that the

conduct displayed in this process is unacceptable.                          Both Parties are on notice

that any evidence, whether documents,                       testimony or thing, not produced in

Discovery by September 30, 2014, either in whole or as part of a list SHALL be

PRECLUDEDat any trial in this matter; and

                  5.      Plaintiff/Counterclaim            Oefendant Gibney has until Friday,

August 8, 2014, to pay Counsel fees and costs to Defendant in the amount of



.3   There will be no further extensions.


                                                        3
                                                                                                             Circulated 07/28/2015 04:07 PM




_                   Five Hundred Dollars ($500.00) pursuant to this Court's May 16, 2014 Order.4
    --- ~---·-··--·--    · ---------  ·- ·-·· --·-- ---------- ·-·· •.---·---- --- --- --- -. ·-·- ·----· ----- __ ----
                                               ..                   .       _.




                    Faihrre to do so will result in a Rule to Show Cauae as·- iQ
                     . . -··· --   - - ~.
                                                                                                                --·why- - -~-- -- -· -
                    Plaintiff/Counterclaim Defendant should not be held in Contempt of Court.


                                                                 BY THE COURT:



                                                             -=-~z ,~·
                                                                    ·. · -
                                                                 TH01¥lAS P. R~~


                    Copies of the above Order
                    Sent on 07/30/14 to:
                    By First-Class Mall:
                    Leo Gibney, Plain tiff Pro Se
                    David J. Woolf, Esquire, Counsel for Defendant. Evolution Marketing
                          Research,LLC
                    Dennis M. Mulgrew, Esquire, Counsel for Defendant, Evolution
                          Marketing Research, LLC




                   •   The check should be made payable to Drinker BiddJe & Reath LLP and delivered 10 the
                   attention of David J. Woolf, Esquire. Counsel is to outify Chambers in writing on Monday,
                   August l I , ~014, ifF'lai~t!If/Count~claim Defendant Gibney Jails to present.the Five Hundred .
                   Dollars ($500.00) payment by end of business day on August 8, 2014.


                                                                    4
(Page   1   of   8)
                                                                                            Circulated 07/28/2015 04:07 PM




                            IN THE COURT OF COMMON PLE.J
                           ----------- ·------~---- --PENNsvJJ~~~..:.____:_~~--'---'---'-"-·. ~·· ~--·      . . . . . . ~~~I
                                                               I

                                                     CIYJJ,. !\CTJ<

                      LEO GIBNEY

                                  V.                                        NO. 2012-10933

                      EVOLUTIONMARKETING
                      RESEARCH,LLC


                                      ORDER: MOTION FOR SANCTIONS AGAINST
                                 PLAINTIFF/COUNTERCLAIM DEFENDANT LEO GIBNEY
                                                UNDER RULE 4019


                            AND NOW, this 16th day of May 2014, upon consideration of Defendant's

                      Motion for Sanctions Against Plaintiff/Counterclaim· Defendant Leo Gibney

                      Under Rule 4019 ("Motion"),the Answers to the Interrogatories and Responses

                      made to the Request for Production of Documents by Plaintiff, and Argument

                      heard on April 17, 2014, it is hereby ORDERED that Defendant/Counterclaim

                      Plaintiff Evolution's Motion is GRANTED in part and DEFERRED in part.

                            Specifically, the Court finds as follows:

                                  1.     Plaintiff/Counterclaim       Defendant Gibney is in violation of

                      the Court's December 20, 2013 Order directing him to provide complete,

                      specific and verified Answers to certain Interrogatories and more complete,

                      specific Responses to certain Requests for Production of Documents.         (See   1il 1,
                      3, 7 and 8 of the Court's Order). The undersigned's December 20, 2013 Order

                      is-incorporated hereinand- attached-hereto;




                  This order/judgment    was docketed and sent on 05/19/2014 pursuant to Pa. R. C. P. 236.                     'ZJ,..
    (Page      2    of      8)
                                                                                                                                                                                                      Circulated 07/28/2015 04:07 PM




                                                                  2.                      Instead,      Plaintiff/Counterclaim                                       Defendant                               Gibney         has
-------·---·       --· ---···--   --·-   ·-   ------~-   --- ------· ··--·-··---        ·--   .
                                                                                                        .   ------   ·---   ·-   --~-------·---    -   ----------   --------··   ~--~-   ···--·-   ----   -·· -   _,.   _

                                  inappropriate                            and asserted                     new objections in direct contravention                                                                      of the

                                  Court's Order;

                                                                  3.                      Plaintiff/Counterclaim                            Defendant                   Gibney has                                  misplaced

                                  reliance on federal court cases wherein the respective courts had granted a

                                  motion to dismiss under the Federal Rules of Civil Procedure in support of his

                                  objections and refusal to specifically respond                                                                               to Defendant/Counterclaim

                                  Plaintiff Evolution's discovery requests;                                                          1   and

                                                                  4.                     Plain tiff/Counterclaim                                  Defendant                      Gibney                           has       also ·
                                                                                                                                    .
                                  erroneously
                                        .
                                              relied on Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d
                                                                                   ·;




                                  1038 (1996), in support of his objections and refusal to specifically respond to

                                  Defendant/Counterclaim                                             Plaintiff Evolution's discovery requests.                                                                    This Court

                                  denied                 Plaintiff/ Counterclaim                                     Defendant                     Gibney's                Motion for Summary


                                  1
                                  . In support of his objections and refusal to comply, Plaintiff/Counterclaim Defendant Gibney
                                erroneously relies upon Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009); Beil Atlantic
                                Corporation v. Twombly, .550 U.S. 544, 127 S.Cf. 1955 (2007), and Phillips v. County of
                                Allegheny, 515 F.3d 224 (3d Cir. 2008). These federal court cases are readily distinguishable for
                                several reasons, not the least of which is the procedural posture. Each matter was before the
                                respective federal court on a motion to dismiss a complaint pursuant to the Federal Rules of Civil
                                Procedure, Here, Plaintiff/Counterclaim Defendant Gibney did not file preliminary objections in
                                the nature of a motion to dismiss the counterclaims but, rather, is attempting to avoid responding
                                to discovery utilizing that standard. While a pro se litigant is entitled to some latitude, under no
                                circumstances is it acceptable for that litigant to substitute his own version of the law for
                                established rules and procedures. Dr. Helicopters, LLC v. South Whitehall Township, 2013 WL .
                                3960886 at *6 n.i5 (Pa.Cmwlth. January 30, 2013). "[AJ party remains bound by the Rules of
                                Court even in the absence of counsel". Cove Centre, Inc. v. Westhafer Construction, Inc., 965
                           ·- · -A:.2d-2-59~ ·262 {Pa~Super:-2009Y--Pro-se status confers no special-benefit upon a party. ·"'fo the·
                                contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable
                                extent, assume that his lack of expertise and legal' training will be-his undoing." In re Ullman,
                                995 A.2d 1207, 1211-12 (Pa.Super. 2010) ( citation omitted).
                                                                                                                                    2
    (Page        3    of   8)
                                                                                                                                                                            Circulated 07/28/2015 04:07 PM




______________        _ __      Judgment without prejudice as premature because the relevant discovery has
                             -···--.   --.--   .        -·-.-   --------------···--·-----------·-···--···--------       ---······--·--·-   ----   -   ----··-··----------
                                                                                                                                                                                    -- ---   ---··   -·-- ···- -   -   -------   ·-----   ----   - -- -   -
 -------.----------             yet.ito ... be completed.avPlaintiff /.CoµnJer~1aim I)_efon.<:tc!nJ_ Qibn~y'::._J§.ibJI~_Jg __
                                comply with the Court's Order has only prolonged this litigation.

                                          Accordingly, it is hereby ORDEREDas follows:

                                                   1.              Plaintiff/Counterclaim                                      Defendant's                    previous objections to

                                Interrogatories 1, 3, 8, 9, 10, 11 and 12 are stricken.                                                                          Plaintiff/Counterclaim

                                Defendant SHALL provide specific, complete and verified Answers to these

                                Interrogatories 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;

                                                   2.              Plaintiff/Counterclaim                                     Defendant's                     previous objections to

                                Defendant's Request for Productionof Documents 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, 22,

                                23, 24, 25, 26, 29, 30, 32,. 33, 34, 36, 39, 40, 41, 42 are stricken.

                                Plaintiff/Counterclaim Defendant SHALL.provide all relevant documents in his

                                possession, whether hard copies or electronic copies, 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. In the interest of fairness, where compliance with a

                                specific document                       request would result in voluminous production,                                                                       a list·
                                2
                                     The standard for summary judgment upon which Plaintiff/Counterclaim Defendant Gibney
                                 relies espoused by the Pennsylvania Supreme Court in Ertel, supra does not apply until after the
                                ·close of+relevant - discovery: · Plaintiff/Counterclaim· Defendant· Gibney is attempting to
                                 circumvent the Pennsylvania Rules of Civil Procedure regarding discovery based upon a legal
                                 standard applicable at the summary judgment stage: Again, he is substituting his own version.of
                                 the law for established rules and procedures. See Dr. Helicopters, supra.
                                                                                                                    J
    (Page             4         of          8)
                                                                                                                                                                                                                                                                                                                      Circulated 07/28/2015 04:07 PM




                                                          specifically identifying the documents may be substituted.                                                                                                                                                                                Upon receipt of any
                                                    ·-   ---· -           ..   ~ ....     --·-·     -----------       ~.,.                   .                      _
                                                                                                                                                                              ----------- ... ·------                     ·-   ·------~-----·----------------·--·-···.                             - ~·      -------·--·--------------                   ··--

••••••-••••"'"'   ••·••••••'•   ••   •   •••••••·•-•"•
                                                          such list, Defendant has the burden to seek clarification if necessary;
                                                           ••   ·, •••   -----·••·-·    •••-'•·•·••-••••••-••••••••   ••••"••-   ,,    ._,,_o.-000>"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
