Marks & Sokolow, LLC v. Eugene Uritsky ( 2015 )

J-A11020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARKS & SOKOLOV, LLC, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
EUGENE URITSKY, ERICA URITSKY AND
EU GLASS, INC.,
Appellees No. 2146 EDA 2014
Appeal from the Order Entered June 5, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): July Term, No. 02046
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 15, 2015
Appellant, Marks & Sokolov, LLC, appeals from the order entered on
June 5, 2014. We affirm.
In 2003, Appellant filed a complaint against Eugene Uritsky
(hereinafter “Mr. Uritsky”) and other defendants, seeking payment of
attorneys’ fees for services rendered. On April 27, 2005, Appellant obtained
a default judgment against all of the defendants; the defendants were
declared jointly and severally liable to Appellant for damages in the amount
of $196,467.24. Partial payment by one of the defendants left a remaining
judgment balance of $101,467.00. As this Court previously explained:
In October 2010, UST Glass, Inc., a company partially
owned by [Mr. Uritsky], filed an equitable action against
[Mr. Uritsky] in the Court of Common Pleas of Philadelphia
County, seeking injunctive relief against [Mr. Uritsky] and a
newly formed company, EU Glass, Inc.[] During preliminary
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injunction proceedings, [Mr. Uritsky] testified that he had
recently created EU Glass, of which he owned “all the
stock.”
As a result of and based upon these revelations made under
oath by [Mr. Uritsky], on December 6, 2010[, Appellant]
filed an “Emergency Petition for Supplementary Relief in Aid
of Execution Pursuant to Pa.R.C.P. 3118 and Contempt[”]
(hereinafter, the “Emergency Petition”). In this Emergency
Petition, [Appellant] sought to enjoin all transfers of the
assets of, inter alia, EU Glass.[1] On December 8, 2010, the
trial court issued a temporary order enjoining EU Glass from
“transferring, removing, conveying or disposing of [Mr.
Uritsky’s] property (both real and personal) subject to
execution, including but not limited to all shares of EU
Glass, Inc. owned by [Mr. Uritsky].” [Temporary Order,
12/8/10, at ¶ 4]. The trial court further issued a rule upon
EU Glass and [Mr. Uritsky] to show cause why the
requested injunctive relief should not be granted, returnable
on December 15, 2010. Id. at 2.
On December 10, 2010, [Appellant] filed a praecipe for a
writ of attachment against EU Glass and [Mr. Uritsky] and[,]
on December 13, 2010, the writ was issued. Also on
December 13, 2010, [Appellant] filed a “Supplemental
Motion for an Order Compelling [Mr. Uritsky] to Turn Over
His Shares in EU Glass, Inc. and Other Supplemental Relief”
(hereinafter, the “Supplemental Motion”). In this
Supplemental Motion, [Appellant] more specifically
described the relief sought from EU Glass and [Mr. Uritsky],
including orders requiring [Mr. Uritsky] to turn over all of
his shares in EU Glass to the sheriff, and enjoining EU Glass
and [Mr. Uritsky] from making any payments out of the
ordinary course of business “to or for the benefit of” [Mr.
Uritsky] in excess of $5,000[.00]. [Supplemental Motion,
12/13/10, at ¶ 50].
____________________________________________
1
Within the December 6, 2010 Emergency Petition, Appellant did not seek to
have Mr. Uritsky held in contempt of court; rather, the contempt request
was related to another individual.
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[At the conclusion of the December 15, 2010 hearing, the
trial court entered an order declaring, in relevant part:] (1)
that [Mr. Uritsky] and EU Glass were enjoined from
“transferring, removing, conveying, disposing or assigning
assets of EU Glass, Inc. out of the ordinary course of
business,” and (2) that [Mr. Uritsky] and EU Glass were
“prohibited from making any payments to or for the benefit
of [Mr. Uritsky] in excess of $5000[.00] per month.” [Trial
Court Order, 12/15/10, at ¶¶ 2 and 3].
...
Apparently as a result of its inability to recover funds from
the accounts of EU Glass, in June 2011 [Appellant] took the
deposition of Erica Uritsky, [Mr. Uritsky’s] wife. At this
deposition, Erica Uritsky testified that she was the “one
hundred percent owner” of EU Glass, and that while [Mr.
Uritsky] “runs the company for me,” he was not an owner
and received no salary or commission for his services.
[Erica Uritsky Deposition, 6/14/11, at 38 and 51-52]. Erica
Uritsky further testified that she had instructed EU Glass’
bookkeeper [] to make direct payments to cover all of her
and her family’s expenses on an “as needed” basis, without
regard to the $5,000[.00] limitation imposed by the trial
court’s December 15, 2010 order. Id. at 121-122 (“[Mr.
Uritsky] takes $5,000[.00] and I take whatever I want, I
mean whatever I need.”). Erica Uritsky specifically
identified [monthly] mortgage payments[,] made directly
from EU Glass of $13,000[.00] and $15,000[.00,] [for her
and Mr. Uritsky’s private] residence.
Based upon Erica Uritsky’s deposition testimony, [Appellant]
filed an emergency petition for modification of the trial
court’s December [15,] 2010 order to include a prohibition
[on] payments by EU Glass to Erica Uritsky. In response,
[Mr. Uritsky] argued that Erica Uritsky’s bankruptcy
discharge precluded any collection efforts against her and
that she was entitled to receive unlimited benefits from “the
company she owns, EU Glass.” On December 8, 2011, the
trial court granted the relief requested by [Appellant],
modifying its prior order to include a prohibition against
distributions to “[Mr. Uritsky], his wife, or family, including
mortgage payments, car payments, or other personal
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expenses in excess of $5,000[.00] per month.” [The trial
court’s December 8, 2011 order reads in full:
AND NOW, this 8th day of December 2011, upon
consideration of [Appellant’s] Emergency Petition for
Supplementary Relief in Aid of Execution Pursuant to
[Pa.R.C.P. 3118], and any response thereto, and after
hearing thereon, and for good cause shown, it is hereby:
ORDERED and DECREED that:
a. [The trial court’s] December 15, 2010 Order is
modified as follows: [Mr. Uritsky] and EU Glass are
prohibited from making any payments outside of the
ordinary course of business for any personal uses of
[Mr. Uritsky], his wife, or family, including mortgage
payments, car payments, or other personal expenses
in excess of $5,000[.00] per month.
b. Any further violations of the December 15, 2010
Order will result in sanctions.
Trial Court Order, 12/8/11, at 1.]
[Mr. Uritsky] appealed the trial court’s December [8,] 2011
order, claiming that the trial court had abused its discretion
and exceeded the limits of its authority under [Pa.R.C.P.]
3118.
Marks & Sokolov v. Alexander Finance, 93 A.3d 498 (Pa. Super. 2013)
(en banc) (unpublished memorandum) at 1-6 (some internal citations,
footnotes, and capitalization omitted).
Ultimately, on December 4, 2013, an en banc panel of this Court
concluded that Mr. Uritsky’s appeal of the December 8, 2011 order was
procedurally defective; we thus quashed the appeal. Id. at 1-16. As is
relevant to the current appeal, the en banc panel concluded that Mr.
Uritsky’s appeal of the December 8, 2011 order was untimely because the
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December 8, 2011 order merely narrowed the scope of the earlier,
December 15, 2010 order – and the December 15, 2010 order was never
appealed. We concluded:
we disagree with [Mr.] Uritsky’s contention that the
December [8,] 2011 order expanded the scope of the prior
December [15,] 2010 order, thereby permitting his appeal
of the later order. The December [15,] 2010 order was
extremely broad in nature, preventing any distributions in
excess of $5,000[.00] “to or for the benefit of” [Mr.]
Uritsky. The December [8,] 2011 order more narrowly
restricts distributions “for any personal uses of [Mr.]
Uritsky, his wife, or family, including mortgage payments,
car payments, or any other personal expenses” in excess of
the $5,000[.00] limit. The phrase “for the benefit of” is
broader than “personal uses,” as it includes both personal
and non-personal (e.g., business) uses. Moreover, while
the December [8,] 2011 order contains a restriction on
distributions to [Mr.] Uritsky’s wife or other family
members, it also makes clear that these distributions are
prohibited to the extent that they are used to satisfy family
obligations (including mortgage and car payments).
Satisfaction of these types of family obligations, whether
performed by [Mr.] Uritsky himself or by his wife or other
family members, is unquestionably for the benefit of [Mr.]
Uritsky. As a result, such distributions were already
prohibited by the more comprehensive language of the
December [15,] 2010 order.
Accordingly, [Mr.] Uritsky’s failure to appeal from the broad
language of the December [15,] 2010 order resulted in a
waiver of his right to appeal from the more narrow
December [8,] 2011 order.
Id. at 12-13 (emphasis in original) (some internal capitalization omitted).
However, during the time between the entry of the December 8, 2011
order until December 4, 2013 – when the en banc panel of this Court
quashed Mr. Uritsky’s appeal – litigation between Appellant and Mr. Uritsky
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continued. First, on December 27, 2011, Appellant filed a separate
complaint, at the separate docket number of 1112-3240, against Mr.
Uritsky, Erica Uritsky, and EU Glass. The complaint sought relief under the
Pennsylvania Uniform Fraudulent Transfer Act (hereinafter “PUFTA”). See
12 Pa.C.S.A. §§ 5101-5110. Specifically, Count I of the complaint claimed
that the Uritskys fraudulently transferred assets from UST Glass to Mr.
Uritsky, to evade Appellant’s efforts to collect on the $101,467.00 judgment
against Mr. Uritsky; Count II of the complaint claimed that the defendants
fraudulently transferred assets from EU Glass to the Uritskys, to evade
Appellant’s efforts to collect on the judgment against Mr. Uritsky.
Appellant’s Complaint at Docket Number 1112-3240, 12/27/11, at 13-16.
Appellant sought to hold the Uritskys jointly and severally liable for the
following damages: “$101,467.24 in the principal amount of the judgment
as well as over $35,000[.00] in accrued interest and over $35,000[.00] in
collection costs to satisfy fraudulently conveyed Uritsky’s obligations to
[Appellant].” Id. at “Wherefore” Clause. Further, at Count VI of the
complaint, Appellant requested that the trial court award “costs, attorney[s’]
fees, and punitive damages” against all defendants because, among other
things:
from January, 2011 onward, [Mr.] Uritsky and Erica
[Uritsky] participated in a scheme by which monies [owed]
to him for his 100% interest in the assets and/or profits of
EU Glass were paid for the benefit of [Mr.] Uritsky and Erica
[Uritsky] to evade the judgment in knowing violation of the
writ of execution and order dated December 15, 2010.
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Id. at 19 (some internal capitalization omitted).
On February 13, 2013, Appellant filed a “Motion for Sanctions” against
Mr. Uritsky, Erica Uritsky, and EU Glass, at the current docket number
(0307-2046). Within Appellant’s Motion for Sanctions, Appellant requested
that the trial court hold both Mr. Uritsky and Erica Uritsky in contempt of
court “for their continuous willful disregard and violation of the orders of” the
trial court.” Appellant’s Motion for Sanctions, 2/13/13, at 11.
On March 18, 2013, the trial court dismissed Appellant’s Motion for
Sanctions (at the current docket number (0307-2046)) “without prejudice
due to the appeal [] pending in the Superior Court.” Trial Court Order,
3/18/13, at 1.
With respect to Appellant’s PUFTA case at the separate docket number
of 1112-3240, the matter proceeded to a three-day bench trial in June and
July of 2013. On September 26, 2013, the trial court entered its opinion and
order in the case, finding in favor of Appellant and against Mr. Uritsky, Erica
Uritsky, and EU Glass on many of Appellant’s claims, but against Appellant
on its claim for attorneys’ fees and costs. As noted in its opinion, the trial
court made the following factual findings and legal conclusions:
4) In 2003, [Appellant] sued [Mr. Uritsky] and others for
payment of fees for legal services. Marks & Sokolov, LLC
v. Eugene Uritsky, et al. (Phila Comm Pleas, July Term
2003, No. 2046 (the 2003 lawsuit).
5. On April 27, 2005, a court awarded [Appellant] a
judgment of $196,467.24 against [Mr.] Uritsky and others
in the 2003 lawsuit.
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6) On April 17, 2006, [Appellant] entered into a settlement
agreement with [Mr.] Uritsky’s co-defendants for a portion
of the total judgment, leaving a balance on the judgment
due from [Mr.] Uritsky of $101,4[67.00].
...
12) [During the time Mr. Uritsky was affiliated with UST
Glass, t]he record shows payments made on UST Glass
checks and with UST Glass credit/debit cards for the
Uritskys’ personal expenses, including groceries, clothing,
cars, household expenses, and a $13,000[.00] monthly
mortgage on the house held in Erica Uritsky’s name.
Discovery produced by UST Glass shows that from 2008 to
2010[,] UST Glass paid over $2.2 million of the Uritskys’
personal expenses.
...
16) On January 11, 2011, in a statement of assets ordered
by the [trial court] in December of 2010, [Mr.] Uritsky
declared that he did “not individually own any assets.”
17) [Mr.] Uritsky left UST Glass in October of 2010. Shortly
after, UST Glass sued [Mr.] Uritsky and others. In
responsive pleadings and in his own testimony in that
action, [Mr.] Uritsky claimed that he was entitled to 50% of
UST Glass[’] profits and that he was a partner and the
firm’s principal operator before he left.
...
21) [Mr. Uritsky created EU Glass in] January of 2010[. At
that time,] he filed documents with the [IRS] indicating that
he [was] the 100% owner of that company.
...
26) Following the December 15, 2010, hearing, the [trial]
court issued an order limiting to $5,000[.00] per month all
transfers from EU Glass of property or payments to or for
the benefit of [Mr.] Uritsky, and directing [Mr.] Uritsky to
submit a statement of assets.
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...
30) On December 8, 2011, the [trial] court issued another
order clarifying the order of [December 15, 2010]. The new
order barred [Mr.] Uritsky and EU Glass from making any
payments outside the ordinary course of business for the
personal use of not only [Mr.] Uritsky, but also Erica Uritsky
and the family in excess of $5,000[.00] per month.
31) Following the December 8, 2011, order, EU Glass
continued to disburse more than $5,000[.00] per month for
personal expenses, including the $13,000[.00] per month
mortgage on the Uritsky house. In 2012, EU Glass
transferred to the Uritskys’ joint personal account over
$300,000[.00].
...
Conclusions
UST Glass
...
48) The Uritskys acted jointly in evading [Appellant’s]
collection efforts by transferring assets from UST Glass for
the personal benefit of the Uritskys, while claiming that
[Mr.] Uritsky held no assets of his own.
49) The transfers from UST Glass to the Uritskys in the
years 2007 through 2010 were made with fraudulent intent
and violated [PUFTA], 12 Pa.C.S.A. § 5104(a)(1).
50) The transfers from UST Glass to the Uritskys were made
in exchange for no consideration and were fraudulent under
PUFTA, 12 Pa.C.S.A. § 5105.
EU Glass
51) Starting in January of 2010, [Mr.] Uritsky was in
possession and control of, and held an interest in, the
assets of EU Glass.
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...
53) The Uritskys acted jointly in evading [Appellant’s]
collection efforts by transferring assets from EU Glass to the
benefit of the Uritskys despite [Appellant’s] writ of
execution and court orders directing that no such transfers
be made, while claiming that [Mr.] Uritsky held no assets of
his own.
54) The transfers from EU Glass to the personal benefit of
the Uritskys from 2010 until trial were made with fraudulent
intent and violated 12 Pa.C.S.A. § 5104(a)(1)[.]
55) The transfers from EU Glass to the Uritskys were made
in exchange for consideration of less than equivalent values
and were fraudulent under PUFTA, 12 Pa.C.S.A. § 5105.
Trial Court Opinion and Order, 9/26/13 (as amended on 4/11/14), at 2-10
(internal emphasis and footnotes omitted) (some internal capitalization and
citations omitted).
Regarding Appellant’s damages, the trial court concluded:
The [trial] court finds that PUFTA authorizes an award of the
original judgment of $101,467[.00]. The records submitted
by [Appellant] and unchallenged by the defendants support
an award of interest on that judgment of 6% for a period of
7 ¼ years, or $42,616[.00]. Finally, pursuant to Section
5107(a)(iii) [of PUFTA,] the [trial] court also awards
[Appellant] $32,840[.00] in costs for the same period. The
total award thus is $176,923[.00].
[Appellant’s] claim for attorneys[’] fees is rejected. The
rule in Pennsylvania is that litigants shall be responsible for
their own attorneys[’] fees unless otherwise provided by
contract or statute. PUFTA contains no provision for fees
and [Appellant has cited] to no authority to support its
claims that [it] may be awarded [fees] in this case.
The [trial] court also declines to award punitive damages,
although it notes that the defendants[] have been notably
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recalcitrant and contemptuous of the judicial process. The
[trial] court directs the defendants to make immediate and
full payment on the judgment in this action and enjoins
them from transferring assets to avoid this payment. . . .
Id. at 20 (internal citations omitted).
On September 26, 2013, the trial court entered its order in the case,
finding in favor of Appellant and against Mr. Uritsky, Erica Uritsky, and EU
Glass. The trial court found Mr. Uritsky, Erica Uritsky, and EU Glass jointly
and severally liable for the $178,445.00 verdict and ordered that the
defendants “pay all funds up to the amount of the [judgment] in bank
accounts in which they have an interest to [Appellant] within two business
days of [the] order.” Id. at 22.
No appeal was taken from the trial court’s September 26, 2013 order.
Subsequently, the judgment was paid. Thus, on January 21, 2014,
Appellant filed a praecipe to mark the above judgment satisfied and to
discontinue the action at docket number 1112-3240.
On January 23, 2014 – or, two days after Appellant filed the praecipe
to mark the judgment at docket number 1112-3240 satisfied – Appellant
filed, at the current docket number (0307-2046), a “Revised Motion for
Contempt and Sanctions Against [Mr.] Uritsky, Erica Uritsky, and EU Glass,
Inc. for Violation of the [Trial] Court’s December 8, 2011 Order” (hereinafter
“Appellant’s Revised Motion for Contempt and Sanctions”). Within
Appellant’s Revised Motion for Contempt and Sanctions, Appellant claimed
that it was entitled to attorneys’ fees and costs from Mr. Uritsky, Erica
Uritsky, and EU Glass, for their “violation of the [trial court’s] December 8,
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2011 order enjoining [Mr.] Uritsky and his company EU Glass [] from
‘making any payments outside of the ordinary course of business for any
personal uses of [Mr.] Uritsky, his wife [], or family including mortgage
payments, car payments, or any other personal expenses in excess of
$5,000[.00] per month.’” Appellant’s Revised Motion for Contempt and
Sanctions, 1/23/14, at 1 (some internal capitalization omitted). Specifically,
Appellant claimed that the trial court should hold Mr. Uritsky and Erica
Uritsky in contempt of court “based on the[ir] violation of the court’s orders,
including the order dated December 8, 2011” and award the following fees
“as a sanction for the contempt”:
(a) Attorney fees of $48,398[.00] associated with drafting
and filing pleadings and preparing and attending the hearing
related to the December 15[,] 2010 order.
(b) Attorney fees of $23,712[.00] associated with drafting
and filing pleadings and preparing and attending the hearing
related to the December 8[,] 2011 order.
(c) Attorney fees of $23,526[.00] associated with taking
depositions, obtaining and reviewing documents, and
drafting the original 2013 motion for sanctions.
(d) Attorney fees of $4,200[.00] associated with the instant
motion.
Id. at 13-14 (internal emphasis and citations omitted) (some internal
capitalization omitted).
Mr. Uritsky, Erica Uritsky, and EU Glass responded to Appellant’s
Revised Motion for Contempt and Sanctions by arguing that the issue
regarding attorneys’ fees for the alleged violation of court orders had already
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been litigated in the earlier PUFTA action between the parties (at docket
number 1112-3240) – and, in that earlier action, the trial court determined
that Appellant was not entitled to attorneys’ fees or costs. Uritskys’
Response, 2/13/14, at 1-2. Mr. Uritsky, Erica Uritsky, and EU Glass claimed
that, since Appellant did not appeal from the earlier denial of its request for
attorneys’ fees and costs, Appellant was now “estopped from recovering the
very same fees that it was [earlier] denied.” Id. at 2.
On June 5, 2014, following a hearing on Appellant’s motion, the trial
court denied Appellant relief. Within its later-filed Rule 1925(a) opinion, the
trial court explained that it denied Appellant relief because “[t]he issues
raised in [Appellant’s] Revised Motion for Contempt and Sanctions were
raised and addressed in the [earlier PUFTA action between the parties (at
docket number 1112-3240)].” Trial Court’ Rule 1925(a) Opinion, 11/19/14,
at 1-2 (internal italics omitted).
Appellant filed a timely notice of appeal from the trial court’s order.
Appellant raises three claims to this Court:2
[1.] Is the [trial] court’s denial of attorney fees in the
[PUFTA action at docket number 1112-3240] relevant?
[2.] Did the [trial] court err in holding sanctions should not
be awarded even though it found [Mr. Uritsky, Erica Uritsky,
and EU Glass] repeatedly violated the December 15, 2010
and December 8, 2011 orders prohibiting EU Glass [] from
____________________________________________
2
For ease of discussion, this Court has re-ordered and re-numbered
Appellant’s claims on appeal.
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paying more than $5,000[.00] per month for the Uritskys’
benefit simply because [Mr. Uritsky, Erica Uritsky, and EU
Glass] ultimately paid the underlying 2005 judgment in
2013?
[3.] Did the [trial] court err in holding sanctions should not
be awarded even though it found [Mr. Uritsky, Erica Uritsky,
and EU Glass] repeatedly violated the December 15, 2010
and December 8, 2011 orders prohibiting EU Glass [] from
paying more than $5,000[.00] per month for the Uritskys’
benefit because it determined this would be punitive
because [Mr. Uritsky, Erica Uritsky, and EU Glass]
ultimately paid the underlying 2005 judgment in 2013?
Appellant’s Brief at 3 (some internal capitalization omitted).
We conclude that the trial court correctly denied Appellant’s Revised
Motion for Contempt and Sanctions because, in the earlier PUFTA action at
docket number 1112-3240, the trial court expressly determined that
Appellant was not entitled to recover “costs [and] attorney[s’] fees” from Mr.
Uritsky, Erica Uritsky, and EU Glass, for their “knowing violation of the writ
of execution and order dated December 15, 2010.” See Appellant’s
Complaint at Docket Number 1112-3240, 12/27/11, at 19; Trial Court
Opinion and Order, 9/26/13 (as amended on 4/11/14), at 20. Since
Appellant did not appeal this determination – and since Appellant admits
that “the December [8,] 2011 order merely modified and narrowed the
December [15,] 2010 order” – Appellant is now collaterally estopped from
re-litigating the issue of its entitlement to attorneys’ fees and costs for the
allegedly contemptuous behavior of Mr. Uritsky, Erica Uritsky, and EU Glass.
See Appellant’s Revised Motion for Contempt and Sanctions, 1/23/14, at 2
(some internal capitalization omitted).
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As this Court has explained:
Collateral estoppel, or issue preclusion, is a doctrine which
prevents re-litigation of an issue in a later action, despite
the fact that it is based on a cause of action different from
the one previously litigated.
Collateral estoppel applies if (1) the issue decided in the
prior case is identical to one presented in the later case; (2)
there was a final judgment on the merits; (3) the party
against whom the plea is asserted was a party or in privity
with a party in the prior case; (4) the party or person privy
to the party against whom the doctrine is asserted had a full
and fair opportunity to litigate the issue in the prior
proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
Selective Way Ins. Co. v. Hospitality Group Serv.’s, Inc., ___ A.3d
___, at ___, 2015 WL 4094398 at 4-5 (Pa. Super. 2015) (en banc) (internal
quotations and citations omitted).
As explained above, during the PUFTA lawsuit at docket number 1112-
3240, Appellant claimed that Mr. Uritsky, Erica Uritsky, and EU Glass must
be sanctioned for Appellant’s “costs [and] attorney[s’] fees,” for their
“knowing violation of the writ of execution and order dated December 15,
2010.” Appellant’s Complaint at Docket Number 1112-3240, 12/27/11, at
19. Thus, in the PUFTA lawsuit at docket number 1112-3240, Appellant
specifically claimed that the trial court must sanction Mr. Uritsky, Erica
Uritsky, and EU Glass for their contempt of the writ of execution and
December 15, 2010 trial court order. The trial court denied this claim on the
merits and held that Appellant was not entitled to attorneys’ fees because
“PUFTA contains no provision for fees and [Appellant has cited] to no
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authority to support its claims that [it] may be awarded [fees] in
this case.” Trial Court Opinion and Order, 9/26/13 (as amended on
4/11/14), at 20 (emphasis added). In so holding, the trial court expressly
concluded that Appellant was not entitled to attorneys’ fees and costs from
Mr. Uritsky, Erica Uritsky, and EU Glass, for their “knowing violation of the
writ of execution and order dated December 15, 2010.” Appellant’s
Complaint at Docket Number 1112-3240, 12/27/11, at 19. Appellant did not
appeal this determination and, on January 21, 2014, Appellant filed a
praecipe to mark the judgment satisfied and to discontinue the action at
docket number 1112-3240.
Two days after Appellant filed its praecipe to mark the judgment
satisfied – and with no intervening change in the facts – Appellant filed its
Revised Motion for Contempt and Sanctions at the current docket number.
Within this motion, Appellant claimed that it was entitled to recover the
same attorneys’ fees and costs, from the same defendants, for their
“knowing violation” of the same December 15, 2010 order, and for their
“knowing violation” of an order that, Appellant admits, “merely modified and
narrowed the December [15,] 2010 order.” Appellant’s Revised Motion for
Contempt and Sanctions, 1/23/14, at 2 (some internal capitalization
omitted) (emphasis added); see also Marks & Sokolov v. Alexander
Finance, 93 A.3d 498 (Pa. Super. 2013) (en banc) (unpublished
memorandum) at 12-13 (holding that any distribution that was prohibited
under the more limited order of December 8, 2011 “[was] already
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prohibited by the more comprehensive language of the December [15,]
2010 order”) (emphasis added).
Under these circumstances, we conclude that collateral estoppel
precludes Appellant’s attempt to re-litigate the issue of its entitlement to
attorneys’ fees and costs from Mr. Uritsky, Erica Uritsky, and EU Glass, for
their “knowing violation of the writ of execution and order dated December
15, 2010.” To be sure: “(1) the issue decided in the prior case is identical
to one presented in the [current] case” (as, in both cases, the issues were
whether Appellant was entitled to attorneys’ fees and costs from Mr. Uritsky,
Erica Uritsky, and EU Glass, for their “knowing violation of the writ of
execution and order dated December 15, 2010”); “(2) there was a final
judgment on the merits” on Appellant’s claim at docket number 1112-3240;
“(3) the party against whom the plea is asserted [(Appellant)] was a party .
. . in the prior case;” “(4) the party . . . against whom the doctrine is
asserted [(Appellant), was the plaintiff in the underlying action and was
given] a full and fair opportunity to litigate the issue in the prior proceeding”
and “(5) the determination in the prior proceeding was essential to the
judgment,” given that Appellant sought attorneys’ fees and costs from Mr.
Uritsky, Erica Uritsky, and EU Glass, for their “knowing violation of the writ
of execution and order dated December 15, 2010,” and the trial court denied
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J-A11020-15
Appellant’s request in total. See Selective Way Ins. Co., ___ A.3d at ___,
2015 WL 4094398 at 4-5.3
Order affirmed.
President Judge Emeritus Ford Elliott joins this memorandum.
Judge Wecht concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
____________________________________________
3
Given our disposition, we will not discuss Appellant’s remaining claims on
appeal.
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