Gleit. H. v. Nguyen, E. , 199 A.3d 1240 ( 2018 )

J-A18030-18
2018 Pa. Super. 321
HOWARD L. GLEIT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
EMMA KIMAHN NGUYEN A/K/A KIM : No. 3987 EDA 2017
ANH THI NGUYEN A/K/A KIM ANH :
NGUYEN A/K/A EMMA KIM NGUYEN :
A/K/A EMMA K. NGUYEN AND KHUE :
KIM NGUYEN :
Appeal from the Order Entered November 6, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 4892 October Term, 2006
BEFORE: STABILE, J., STEVENS*, P.J.E., and STRASSBURGER**, J.
OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 30, 2018
Appellant Howard L. Gleit appeals from the order entered in the Court
of Common Pleas of Philadelphia County, which voided and vacated a
contempt judgment entered in the amount of $509,000.00 against Appellees
Emma Kimahn Nguyen, struck and set aside related writs of execution against
them, and determined that the $509,000.00 contempt judgment was
satisfied. We affirm.
The trial court sets forth the facts and procedural history as follows:
Plaintiff Howard Gleit [hereinafter “Plaintiff/Appellant Gleit,”
“Attorney Gleit,” or “Gleit”] appeals from the trial court’s
November 6, 2017 Order which vacated and voided a contempt
judgment entered in the amount of $509,000 against Emma
Kimahn Nguyen (“Contemnor Nguyen”), struck and set aside
related writs of execution against Contemnor Nguyen and Khue
Kim Nguyen (“Terre Tenant Nguyen”), and determined that the
____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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$509,000 contempt judgment was satisfied. For the reasons set
forth herein, the Superior Court should affirm the trial court’s
Order.
1. [Plaintiff/Appellant’s] Underlying Action for Unpaid Legal
Services
Plaintiff/Appellant Gleit filed a complaint alleging that Thao Thi
Nguyen (“Defendant Nguyen”) breached an oral agreement to pay
Gleit for legal services and for brokering a real estate deal.
Several months later, Gleit filed an amended complaint that joined
members of Defendant Nguyen’s family, including Contemnor
Nguyen, and alleged that they agreed to pay Defendant Nguyen’s
legal bill. The matter proceeded to a non-jury trial before the
Honorable Eugene E. Maier.
On September 20, 2011, Judge Maier entered a finding in favor of
Plaintiff/Appellant Gleit in the amount of $57,819.52 plus pre-
judgment interest, which totaled $77,734.46 (“Merits judgment”).
On November 23, 2011, the trial court entered the merits
judgment in the amount of $77,734.46. Contemnor Nguyen filed
a timely appeal, which the Superior Court quashed.1 On January
29, 2015, the $77,734.46 merits judgment was satisfied by
payment in full by a third party. Id.
1 Gleit v. Nguyen, 2013 WL 11288889, unpublished
memorandum, (Pa.Super. filed Jan. 23, 2013).
2. Contemnor Nguyen Did Not Respond to [Plaintiff/Appellant’s]
Discovery Requests
On November 28, 2011, while Contemnor Nguyen’s appeal of
the $77,734.46 merits judgment was pending,
Plaintiff/Appellant Gleit served the co-defendants of the
underlying action with interrogatories and requests for
production in aid of execution pursuant to Pennsylvania Rule of
Civil Procedure 3117. On February 22, 2012, Gleit filed a
motion to compel to answer his discovery requests. Contemnor
Nguyen did not respond.
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On March 27, 2012 the trial court granted Gleit’s motion and
ordered each co-defendant to “provide full and complete
responses to Gleit’s Execution Interrogatories and Request for
Production of Documents without objection within 10 days, or
suffer sanctions.” Gleit v. Nguyen, et al, 3061 EDA 2013 at
2013 at 2 (Pa.Super. 2014) (citing Trial Court Order 3/27/12)
(emphasis in original).
Contemnor Nguyen did not comply with the March 27, 2012
Order. On April 23, 2012, Gleit filed his first motion for
sanctions. On May 18, 2012, Gleit filed a motion to compel
Contemnor Nguyen to attend a deposition. On May 24, 2012,
the trial court granted Gleit’s motion for sanctions, imposed
sanctions in the amount of $750.00 to be paid to Gleit for the
“preparation of and appearance of this motion,” and ordered
Contemnor Nguyen to provide full and complete answers to
Gleit’s discovery requests without objection. The order further
notified Contemnor Nguyen that “an appropriate contempt
order shall be imposed . . . upon application to the court if the
order is not followed.” Id. at 3 (citing Trial Court Order,
5/24/12).
On June 7, 2012, Contemnor Nguyen filed a motion for a
protective order. On June 12, 2012, Gleit filed a third motion
to compel and a second motion for sanctions. On June 20,
2012, the trial court denied these motions without prejudice.
On July 10, 2012, the trial court granted Contemnor Nguyen’s
motion for protective order by staying discovery during the
pendency of her appeal. On January 23, 2013, the Superior
Court affirmed the $77,734.46 merits judgment. When
Contemnor Nguyen did not file a petition for allowance of
appeal with the Supreme Court of Pennsylvania, Gleit resumed
his post-judgment discovery in connection with the merits
judgment. Id.
3. The Trial Court Imposed Sanctions Against Contemnor Nguyen
On June 14, 2013, Plaintiff/Appellant Gleit filed a third motion
for sanctions including a request for civil contempt against
Contemnor Nguyen. On August 26, 2013, Judge Maier held a
hearing on Gleit’s third motion for sanctions. At this hearing,
Judge Maier declined to impose the requested sanctions.
Instead, he directed Gleit to submit additional questions to
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Contemnor Nguyen regarding the various properties that she
owned, and directed her to provide complete answers to Gleit’s
questions within one week of her receipt of Gleit’s questions.
Judge Maier further directed Contemnor Nguyen’s counsel,
Christopher Lombardo, Esq., to act on her behalf to ensure
compliance with the trial court’s order, and notified Contemnor
Nguyen that failure to comply would result in sanctions against
her nearing the amount of the $77,734.46 merits judgment.
On August 28, 2013, Gleit’s counsel submitted discovery
requests to Lombardo in the form of a letter. Plaintiff’s Brief at
2; Gleit, 3061 EDA 2013, at 4.
On September 19, 2013, Judge Maier held a hearing to assess
Contemnor Nguyen’s compliance with the August 26, 2013
order. Judge Maier determined that Contemnor Nguyen had
not responded to Gleit’s August 28, 2013 letter, and that she
had therefore failed to comply with the August 26, 2013 Order.
Judge Maier declined further extensions and ordered sanctions
against Contemnor Nguyen in the amount of $1,000 per day,
payable to Gleit, until she complied with the August 26, 2013
Order. During the contempt hearing, Judge Maier stated,
“[W]hat I am going to do is issue a sanction and the sanctions
will come probably somewhere in the amount of the judgment”
in the underlying merits matter. Plaintiff’s Brief at 1; Gleit,
3061 EDA 2013, at 4.
On October 16, 2013, the trial court granted [Attorney]
Lombardo’s petition for leave to withdraw his representation of
Contemnor Nguyen, which was filed in August 2013. The order
granting Lombardo leave to withdraw as Contemnor Nguyen’s
counsel stated, “[t]he sanctions imposed on [Contemnor
Nguyen] continue at $1,000.00 (One Thousand Dollars) per
day until the Court Order of August 26, 2013, is complied with.
[Contemnor Nguyen] was notified at the September 19, 2013
hearing that no delay of execusion [sic] or compliance with the
August 26, 2013, Order would be granted. Gleit, 3061 EDA
2013, at 5 (citing Trial Court Order, 10/16/2013).
On October 23, 2013, Contemnor Nguyen appealed Judge
Maier’s October 16, 2013 Order to the Superior Court. On
October 24, 2013, Judge Maier entered an order imposing
sanctions against Contemnor Nguyen in the amount of $1,000
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per day.2 On November 20, 2014, the Superior Court affirmed
Judge Maier’s October 24, 2013 Order. Id. at 3, 5, 14.
2 The Superior Court corrected the caption of Contemnor
Nguyen’s October 23, 2013 appeal to reflect that the order she
appealed from was Judge Maier’s October 24, 2013, order, not
his October 16, 2013, order. Gleit v. Nguyen, et al, 3061 EDA
2013, n.5 (Pa.Super. 2014).
On January 27, 2015, Gleit filed a praecipe for entry of
judgment with the Prothonotary based upon Judge Maier’s
October 24, 2013 Order “at the rate of $1,000 per day from
September 5, 2013, to January 26, 2015 (509 days) in the total
amount of $509,000.00” Without a hearing or taking further
evidence, and also without a further order by Judge Maier, the
Prothonotary entered judgment against Contemnor Nguyen in
the amount of $509,000 as the contempt judgment.
4. Contemnor Nguyen Filed For Bankruptcy; Plaintiff Sought
Execution of the Contempt Judgment
On September 29, 2015, Contemnor Nguyen filed a Chapter 13
bankruptcy, which was subsequently converted to a Chapter 7
case.3 On July 8, 2016, the United States Bankruptcy Court for
the Eastern District of Pennsylvania granted Contemnor
Nguyen a discharge under Section 727 of the Bankruptcy Code,
11 U.S.C. § 727. Under Section 524(a)(1) of the Bankruptcy
Code, the discharge had the effect of “void[ing] any judgment
at any time obtained, to the extent that such judgment is a
determination of the personal liability of the debtor. . . .” 11
U.S.C. § 524(a)(1).
On July 12, 2017, Gleit filed three separate praecipes to issue
writs of execution against the following parcels of real property
located in the City of Philadelphia and owned by Contemnor
Nguyen: 2631 S. Lloyd Avenue; 5413 Osage Avenue; 6022
Lindbergh Boulevard; 6408 Buist Avenue; and 2634 South
Berbo Street. Gleit also filed a writ of execution against 901 S.
13th Street, which is a parcel of real property owned by Terre
Tenant Nguyen.4 Gleit scheduled a sheriff’s sale of the six
properties for October 3, 2017.
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3 In re: Emma Kimahn Nguyen, ED Pa. Bk# 15-17005-elf.
4 On or around January 27, 2015, when Attorney Gleit filed his
praecipe to enter judgment for $509,000, the 901 South 13 th
Street property was owned by “Emma Kimahn Nguyen and
Khue Kim Nguyen,” by deed dated September 4, 2007, wherein
Contemnor Nguyen granted title to herself and Terre Tenant
Nguyen. Prior to September 4, 2007, the 901 South 13th Street
property was owned by Contemnor Nguyen who took title on
August 17, 2006 from Greystone Holdings, LLC. Contemnor
Nguyen subsequently quitclaimed her interest in this property
by quitclaim deed, dated August 2, 2016, thereby leaving title
to Terre Tenant Nguyen.
5. Contemnor Nguyen Moved to Stay Execution of the Contempt
Judgment
On or about October 1, 2017, Contemnor Nguyen filed an
emergency petition to stay sheriff’s sale. On October 2, 2017,
Terre Tenant Nguyen filed an emergency application for leave
to intervene pursuant to Pennsylvania Rule of Civil Procedure
2328, as well as a motion to stay sheriff’s sale. On October 2,
2017, the trial court entered an order postponing the sheriff’s
sale from October 3, 2017 to November 7, 2017.
On October 23, 2017, the trial court held a hearing on both
motions to stay execution of the sheriff’s sale. Following a
second hearing on November 6, 2017, the trial court issued an
order that vacated and voided the $509,000 contempt
judgment against Contemnor Nguyen, struck and set aside the
writs of execution against Contemnor and Terre Tenant
Nguyen, and determined that the 509,000 contempt judgment
was satisfied. Gleit filed this timely appeal of the trial court’s
November 6, 2017 Order.
Trial Court Opinion, filed 2/21/18, at 1-6.
In Attorney Gleit’s appellate brief, he delineates twelve issues that
coalesce to assert the trial court erred in staying execution of judgment and
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then striking the writs of execution upon concluding the prothonotary lacked
authority to issue them. According to Gleit, the $509,000.00 amount due and
owing him was clear from the face of the instrument, thus making the
prothonotary’s entry of judgment a ministerial act permitted under
Pennsylvania Rules of Civil Procedure 3021(a)(1).1
Our standard of review is well settled:
“The grant of a stay of execution is within the sound discretion of
the trial court and its decision will not be disturbed absent a clear
abuse of that discretion.” In Re Upset Sale, Tax Claim Bureau
of Berks County, 505 Pa. 327, 339, 479 A.2d 940, 946 (1984);
Kronz v. Kronz, 393 Pa.Super. 227, 574 A.2d 91, 94 (1990). A
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1Rule 3021. Verdict. Order. Judgment. Entry in Judgment Index,
provides in pertinent part:
(a) The prothonotary shall immediately enter in the judgment
index
(1) A verdict or order for a specific sum of money with the
notation “verdict” or “order”. The entry shall state the
amount of the verdict or order;
...
(3) a judgment, whether entered by the court, on order of
court or on praecipe of a party. The entry shall state the
amount of the judgment if for a sum certain.
Note: . . . The rule presumes a channel of communication
between the court and the prothonotary so that the
prothonotary may “immediately” docket a judgment entered
by the court.
Pa.R.C.P. 3021(a)(1), (3).
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court, in exercising this power, should not stay an execution
unless the facts warrant an exercise of judicial discretion. Kronz,
supra. Appellate review of equitable matters is limited to a
determination of whether the trial court committed an error of law
or abused its discretion. Marra v. Stocker, 532 Pa. 187, 192,
615 A.2d 326, 328 (1992) (citing Sack v. Feinman, 489 Pa. 152,
413 A.2d 1059 (1980)).
Keller v. Re/Max Ctr. Realty, 719 A.2d 369, 371 (Pa. Super. Ct.
1998).
Contemnor/Appellee Nguyen responds that the Rules did not confer
authority upon the prothonotary to enter judgment under the present
circumstances. Decisional law recognizes that a prothonotary may engage
only in the purely ministerial or clerical act of entering a judgment rendered
by the court on the record, as a prothonotary possesses no judicial powers,
Contemnor Nguyen argues. Here, the court had not rendered a judgment on
the merits with respect to Nguyen’s alleged contempt but had, instead, only
issued a prospective order of contempt for every day Nguyen failed to satisfy
the $77,734.46 judgment for legal expenses owed to Attorney Gleit.
Nguyen cites this Court’s decision in Newsome v. Braswell, 406 A.2d
347 (Pa.Super. 1979) as instructive in the present case. In Newsome, the
trial court granted plaintiff's discovery motion to compel defendant to produce
a receipt in question, and it gave defendant 30 days to comply. Failure to
comply, the court continued, would result in the entry of a judgment of default
in plaintiff's favor and against defendant upon praecipe of plaintiff.
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The defendant failed to comply, prompting the plaintiff to praecipe the
prothonotary. Consequently, the prothonotary filed default judgment against
defendant.
The defendant appealed, challenging the authority of the prothonotary
to enter judgment. We reversed, holding that controlling authority2 confers
the power to enter a default judgment only upon the court, not the
prothonotary:
The fact that the court directs the clerk to make the entry does
not change the rule that he is strictly confined to the limitations
of the statute, since the court's direction in such case adds nothing
to the clerk's powers and duties in the matter.
Id. at 350. See also Gonzales v. Procaccio Bros., 407 A.2d 1338
(Pa.Super. 1979) (trial court erred in devising local civil rule delegating power
to prothonotary to enter judgment upon praecipe of adverse party if responses
to discovery were untimely).
Analogously, Nguyen maintains, the trial court here had entered a daily
fine against her tied to a condition allowing her to purge the contempt. The
court’s order never directed the prothonotary to enter judgment, nor did the
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2 Newsome involved application of Pa.R.C.P. 4019, Sanctions, for a party’s
willfully disobeying a Rule 4009 discovery order. Rule 4019, we held, provides
the court with exclusive authority to grant a default as a sanction. We further
limited the reach of our decision “to sanctions imposed for violating a Rule
4009 order to produce documents.” Id. at 350 n 2.
We acknowledge, however, that Appellee Nguyen cites to Newsome for the
general proposition that the authority granted by statute or rule to a
prothonotary to enter judgments without judicial participation is limited
strictly to the scope of power confined by the statute or rule.
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court ever determine Nguyen was, in fact, in contempt for 509
days. Therefore, the prothonotary undertook the unauthorized judicial act of
determining she was liable for $509,000.00, Nguyen argues.
For its part, the trial court provides its reasons for both staying and
striking the writs of execution, as follows:
Here, in staying the execution proceedings initiated by [Attorney
Gleit] related to the contempt judgment, the trial court balanced
the rights of Gleit and Contemnor Nguyen and Terre Tenant
Nguyen. In doing so, it determined that Gleit’s right to relief in
the underlying matter, i.e., the $77,734.46 merits judgment
related to Defendant Nguyen's failure to pay Gleit for legal
services, was satisfied on January 29, 2015, when Gleit received
$77,734.46 from a third-party.
The trial court also determined that execution of the $509,000.00
contempt judgment would work an unnecessary hardship upon
Contemnor Nguyen and Terre Tenant Nguyen because (1) the
underlying $77,734.46 merits judgment was fully satisfied, and
(2) the primary purpose of Judge Maier's sanction order—to
compel Contemnor Nguyen to answer Gleit’s discovery requests
so as to help Plaintiff satisfy the $77,734.46 merits judgment—
was fulfilled because Gleit concedes that the merits judgment was
fully satisfied. For these reasons, the trial court properly stayed
execution of the writs pursuant to Rule 3021(b)(2).
...
[Also], the trial court properly struck and set aside Gleit’s writs of
execution related to the contempt judgment because Attorney
Gleit did not secure a valid judgment before he attempted to
execute on the six properties owned by Contemnor Nguyen and
Terre Tenant Nguyen. . . . Thus, no judgment was secured by
Gleit against Contemnor Nguyen, and the trial court properly
struck Gleit’s writs of execution under [Forest Highlands
Community Ass’n v. Hammer, 903 A.2d 1236 (Pa.Super. 2006)
(court may properly strike writ of execution where “no judgment
was secured [by the plaintiff] in advance of attempting to execute
its lien.”)]. Alternatively, and for similar reasons, the trial court
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properly set aside the writs of execution pursuant to [Pa.R.C.P.]
3121(d)(3),[3] i.e., Gleit failed to obtain a valid judgment against
Contemnor Nguyen.
...
The trial court properly vacated and voided the $509,000
contempt judgment. . . . A judgment “is the remedy prescribed
by law for the redress of injuries. . . .” In re Sedgeley Avenue,
88 Pa. 509, 513 (Pa. 1879). . . . Simply indexing an order as a
judgment “cannot turn that which is not a judgment into a
judgment.” Watkins v. Neff, 134 A. 625 (Pa. 1926).
The entry of a judgment by the prothonotary “is a ministerial or
clerical act, required to be done by the clerk of the court, . . . and
consists of placing a judgment previously rendered on the record,
by which enduring evidence of the judicial act is afforded . . . .”
Lansdowne By Lansdowne v. G.C. Murphy, Co., 517 A.2d
1318, 1321 (Pa.Super. 1986). The prothonotary’s authority to
enter a judgment is generally confined “to the circumstances
spelled out by the statute or rule.” Thompson v. Cortese, 398
A.2d 1079, 1081 (Pa.Cmwlth. 1979)[4]; see also Pa.R.C.P.
3021(a)(1)-(3) [supra]. Where a prothonotary enters a judgment
outside the bounds of its authority, “the judgment so entered ‘is
a nullity and without legal effect.’” [Newsome, supra.]
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3 Pennsylvania Rule of Civil Procedure 3121(d) provides:
The court may on application of any party in interest set aside the
writ, service or levy (1) for a defect therein; (2) upon a showing
of exemption or immunity of property from execution, or (3) upon
any other legal or equitable ground therefor.”
Pa.R.C.P. 3121(d)(1)-(3).
4 See also Commonwealth v. Abdul Salaam, 996 A.2d 482, 487 (2010)
(citing Thompson for proposition that “if court has not specifically adjudicated
rights of parties or directed prothonotary to enter judgment, prothonotary’s
authority to enter judgment must have express basis in statute or rule of
court, and authority is confined to circumstances spelled out by statute or
rule”).
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No statute or rule authorizes the prothonotary to reduce an order
to a judgment based upon a prothonotary’s own assessment of
damages.5
...
Here, the trial court properly vacated and voided the $509,000
contempt judgment because the contempt judgment was invalid[,
. . . as] the final adjudication of Contemnor Nguyen’s liability to
Attorney Geit under Judge Maier’s sanction order had not
occurred. In other words, there was no evidence of record to
support whether Contemnor Nguyen remained in contempt,
whether she purged herself of the contempt order, whether the
purpose of the contempt order remained, and/or for how many
days she was in contempt of Judge Maier’s order.
...
[Finally,] the trial court properly determined that the $509,000
contempt judgment was satisfied. . . . “[T]he purpose of a civil
contempt order is to coerce the contemnor to comply with a court
order.” Orefield v. Weidel, 52 A.3d 275, 279 (Pa.Super. 2012).
Further, “[i]n civil contempt, the contemnor is able to purge
himself of the contempt . . . that is, he may relieve himself of the
sanction by complying with the court order.” Gunther v. Bolus,
853 A.2d 1014, 1018 (Pa.Super. 2004).
Here the Superior Court determined that Judge Maier found
Contemnor Nguyen in civil contempt and issued a civil contempt
order that was for the benefit of Attorney Gleit in executing upon
the $77,734.46 merits judgment in the underlying matter:
In the instant case, the discovery sought was in aid of
execution of a judgment against [Contemnor
Nguyen]. The trial court found [Contemnor Nguyen]
‘failed to comply’ with a court order and directed [her]
to pay [Attorney Gleit]. . . . Therefore, the
proceedings were undertaken to enforce compliance
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5 The trial court notes, however, Pa.R.C.P. 1037 allows a prothonotary to
assess damages, but the rule applies only where a defendant fails to file,
within the required time, a pleading to a complaint which contains a notice to
defend. That is not the situation at bar.
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with discovery orders for [Gleit’s] benefit in executing
a final judgment. . . . [Contemnor Nguyen] may also
relieve herself of the sanction imposed by complying
with the order to respond to the requested discovery,
and thus purge the contempt.
Gleit, 3061 EDA 2013, at 9.
...
In other words, the primary purpose of Judge Maier’s contempt
order was to assist Attorney Gleit in recovering $77,734.46, the
merits judgment from the underlying action for unpaid legal
services. Indeed, this purpose is clear because Judge Maier
state[d] that “what I am going to do is issue a sanction and the
sanctions will come probably somewhere in the amount of the
judgment” in the underlying merits matter. Because the primary
purpose of Judge Maier’s October 24, 2013 order was fulfilled, the
trial court properly determined that the $509.000 contempt
judgment was satisfied.
Trial Court Opinion, at 6-7, 8-10, 11-13.
Our review of the record, party briefs, and pertinent authority confirms
that the trial court’s opinion comprehensively discusses and properly disposes
of all questions presented. Specifically, we agree with the court’s observation
that without an underlying judicial determination that Nguyen was in
noncompliance with Judge Maier's contempt order for a specified number of
days there was no “judgment” for the prothonotary to enter in the judgment
index pursuant to Rule 3021. Rule 3021 sets forth the circumstances under
which a prothonotary may perform the ministerial act of indexing a judgment,
and nothing in the rule confers upon the prothonotary the power to assess
liability and enter judgment on praecipe of a party where the court has not
first specifically granted or denied relief on the matter in question.
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Moreover, we discern no abuse of discretion in the trial court’s
determination that the primary purpose of Judge Maier’s contempt order was
to motivate Contemnor Nguyen to provide discovery that would enable
Attorney Gleit to collect on the underlying judgment for $77,734.46 for legal
services rendered. Excerpts taken from Judge Maier’s comments during the
contempt hearing reveal he viewed the prospective contempt payments as
providing an alternate means by which to secure the underlying judgment
amount of $77,734.46 for Attorney Gleit, an amount Attorney Gleit eventually
received. We also understand the trial court’s decision in this respect as
reasonably grounded in equitable considerations that Attorney Gleit not
receive an inexplicable windfall of $509,000.00 on an underlying matter
involving considerably less money.
Accordingly, finding no abuse of discretion in the court’s orders voiding
and vacating the contempt judgment and striking and setting aside the writs
of execution against Contemnor Nguyen and Terre Tenant Nguyen, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/18
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