VAN TASSEL v. PICCIONE et al
Filing
42
MEMORANDUM AND OPINION re 1 Petition for Writ of Habeas Corpus filed by LYNN A. VAN TASSEL dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 05/09/2012. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LYNN A. VAN TASSEL,
Petitioner,
v.
HON. JUDGE THOMAS M. PICCIONE,
et al.,
Respondents.
)
)
)
) 2:11-cv-1516
)
)
)
)
MEMORANDUM and ORDER
Mitchell, M.J.:
Lynn A. Van Tassel who at the time she filed the instant petition was an inmate in the
Lawrence County Jail and has since been released, has presented a petition for a writ of habeas
corpus. For the reasons set forth below, the petition will be dismissed and because reasonable
jurists could not conclude that a basis for appeal exists, a certificate of appealability will be
denied.
The instant petition was executed on November 25, 2011 and has been followed by a
large number of filings. In addition to inundating this Court with pleadings the petitioner has also
swamped the courts of the Commonwealth with a vast volume of litigation all relating to a
domestic relations dispute and her ultimate incarceration for civil contempt. The factual
background leading to her incarceration is set forth in the June 23, 2008 Opinion of the Court of
Common Pleas (Answer Exhibit A):
On October 12, 2007, this Court Ordered the Defendant [petitioner’s former
spouse] to pay to the Pennsylvania State Collection and Disbursement Unit the
sum of $731.21 per month, which Order consisted of $718.21 for current support
and $20.00 for arrears. Arrears were set in the sum of $1,196.48 as of October 12,
2007.
On December 11, 2007, Plaintiff [petitioner] filed a Praecipe for Judgment in
favor of Plaintiff and against Defendant, for support arrearages in the sum of
$1,305.36
The Plaintiff then filed a Praecipe for Writ of Execution (Money Judgments), in
the Office of the Prothonotary of Lawrence County, which Writ of Execution
1
directed the Sheriff of Lawrence County to attach the real property of the
Defendant, for the principal and interest due as of December 10, 2007, in the sum
of $1,305.36, plus Domestic Relation’s cost of $5.00.
On January 10, 2008, the Defendant filed a Petition to Correct Judgment, pursuant
to Pa.R.C.P. 1910.24(b).
The Petition to Correct Judgment alleges that no overdue “support exists under
the Support Order and as contemplated by Pennsylvania Rule of Civil Procedure
1920.24(a),” and alleges that the written certification that accompanied the entry
of the Judgment and which was provided to the Prothonotary of Lawrence County
by the Plaintiff at the time of entry of Judgment does not show that the defendant/
obligor owes overdue support pursuant to an Order of Court as required by
Pa.R.C.P. 1910.24. The Petition goes on to further allege that judgment was
entered erroneously, that there is a mistake in the amount of overdue support, and
that the Judgment should not have been entered.
Pursuant to the Petition to Correct Judgment, the Court entered its Order of
January 8, 2008, referring the matter to Conference Officer as contemplated by
Pa.R.C.P.1910.24(b); the Judgment entered on December 11, 2007, was stricken,
and the Sheriff’s Sale scheduled for January 16, 2008, was stayed/cancelled.
In addition, pursuant to said Petition to Correct Judgment, the Defendant asked
the Court to impose attorney’s fees against the Plaintiff.
On January 15, 2008, the Plaintiff filed a Motion for clarification/ reconsideration,
which was denied by the Court pursuant to Order of February 5, 2008.
The Domestic Relation Conference to consider the Petition to Correct Judgment
was scheduled for February 20, 2008.
The Plaintiff also filed a Motion for Dismissal of Hearing, alleging that Defendant
is not entitled to attorney’s fees in this matter, blaming counsel for Defendant for
dragging the matter on. That Motion was dismissed by Order of Judge Wherry,
March 14, 2008.
The Domestic Relations Section scheduled a Conference on February 20, 2008, to
resolve the issues of past due support. Pursuant to information found in the
PACSES computer on March 3, 2008, the Defendant’s “normal arrears” or “past
due support” was determined by Domestic Relations Section to be the sum of
$234.43. this Court entered an Order on March 3, 2008, in that regard, and in
addition, Ordered that all provisions of the current Order dated October 12, 2007,
shall remain in full force and effect. The March 3, 2008, Order was effective
February 20, 2008, that being the date of the Conference.
2
Pursuant to the March 3, 2008, Order, the Defendant was given until March 26,
2008, to request a hearing DeNovo before the Court.
On March 12, 2008, the Defendant filed a Demand for a Hearing before the
Courts, from the Order entered on March 3, 2008.
In addition, on March 12, 2008, at case number 20288 of 2008, D.S.B., Plaintiff
filed a Praecipe for Judgment in favor of Plaintiff and against Defendant for
overdue support, in the sum of $234.43, plus interest at 1.5% per month from
December 11, 2007, plus costs. Attached to the Praecipe for Judgment was a
Certificate of Arrearage of Larry Troggio, Director of the Lawrence County
Domestic Relation Section, certifying that arrearages on the above case as of
March 11, 2008, totaled $234.43, overdue support. In addition, attached to the
Praecipe for Judgment is a letter dated March 11, 2008, from Larry Troggio,
Director of the Domestic Relations Section to Helen I. Morgan, Prothonotary and
Clerk of Courts, relative to this matter, stating that the Defendant is in compliance
with the Court Order and paying as required through the Domestic Relation
Section. Attached to the Order of March 3, 2008, is the Summary of Tryer of
Fact, prepared by the Domestic Relations Conference Officer, which provides as
of March 3, 2008, the Defendant owed past due support in the amount of $234.43.
at no time did the Domestic Relations Conference Officer make a determination
whether overdue support was due on December 11, 2007, as contemplated by
Rule 1910.24(b) in the Order.
The first time that Plaintiff attempted to take judgment on March 11, 2008,
Plaintiff did not have an appropriate written certification showing the Defendant
owed “overdue support,” to an order of court as required by Pa.R.C.P. 1910.24(a).
Subsequently, Plaintiff obtained from Domestic Relations Director Larry Troggio,
a Certificate of Arrearage dated as of March 11, 2008, showing the overdue
support to be $234.43. This Certificate of Arrearage was inconsistent with
conclusion of the Domestic Relation Officer and the Domestic Relation Order
entered by this Court on March 3, 2008. Based upon that Certificate and Praecipe
for Judgment, the Prothonotary had entered Judgment in favor of the Plaintiff and
against the Defendant on March 12, 2008, in the sum of $234.43.
On March 28, 2008, the Defendant filed a subsequent Petition for Special Relief
once again requesting the Court to strike the Judgment pursuant to Pa.R.C.P.
1910.26(b) and requesting attorney’s fee for obdurate and vexatious conduct by
the Plaintiff.
Pursuant to Order dated March 28, 2008, this Court struck the Judgment entered
on March 12, 2008, and scheduled a Hearing to determine whether Defendant is
entitled to attorney’s fees, and on the issue of whether Plaintiff may enter
judgment against the Defendant in this case.
3
On May 8, 2008, this Court conducted a Hearing on both issues, taking testimony
from the Plaintiff and her witnesses.
The Plaintiff testified that the arrearages in this case date back to 2005, and that
she is not acting vindictively in her pursu[it] of judgment in this matter.
The Plaintiff testified that on December 11, 2007, when she picked up the
Certificate of Arrearage from the Domestic Relations Section, showing the arrears
in the sum of $1,305.36, that she knew this figure was incorrect, and that the
correct figure should have been $653.75. N.T. 83-84. It is Plaintiff’s position
that the Certificate of Arrearages was incorrectly computed by Domestic
Relations. The Plaintiff asserted that she has availed herself of her lawful
remedies in this case and that it is Domestic Relations, as well as everyone else in
the case, making the mistakes.
On cross-examination, the Plaintiff admitted that she had read the Rules of Civil
Procedure prior to filing the Praecipe for Judgment at the Prothonotary’s Office
and that she was aware that the arrearage figure of $1,305.36, gave no indication
of overdue support. Despite having read the Rules of Civil Procedure first, the
Plaintiff admitted that she knew that when she filed the Praecipe for Judgment,
that she knew it was incorrect. N.T.83.
The Plaintiff also represented herself at the February 20, 2008, Domestic
Relations Conference, following which the Order of March 3, 2008, was entered
showing past due support in the sum of $234.42. the Plaintiff also acknowledged
knowing that she knew that an appeal could be taken any time prior to March 26,
2008.
The Plaintiff’s testimony was that on March 11, 2008, she attempted to have the
Prothonotary enter Judgment on her behalf, and that she had received the
Certificate of Arrearages from the Domestic Relations’ Office on March 11, 2008,
originally showing no overdue support. The Plaintiff acknowledged that she
insisted the Prothonotary enter Judgment, and after her persisting in her demands,
received a letter from Larry Troggio … and as a result of said persistence received
a Certificate of Arrearages in the sum of $234.43. The Plaintiff went on to admit
that as of March 12, 2008, when she entered Judgment, she was aware that the
Defendant had requested a hearing before the Court but that she proceeded
nevertheless to insist that Judgment be entered on her behalf.
Tracy Hromyak, Domestic Relations Establishment Supervisor for the past 20
years, testified that in order to receive a proper certificate of arrearages, it is
necessary to manually enter the PASCES system to exclude “overdue support”, in
that the computer system includes in the case balance arrearages, retroactive
arrears, the case balance, and overdue support.
4
Ms. Hromyak testified that the certificate of arrearage does not include the
overdue support, but includes the current month’s support entered as of the first
day of each month into the arrearage calculation.
Ms. Kathleen Hogue, Office Manager at the Domestic Relations Office, testified
from her review of the records, that on December 11, 2007, that the overdue/
normal support was the sum of $342.43; that retroactive arrearages were $244.72;
and that the current arrearages were $547.84. Ms. Hogue also testified that the
current support orders are paid first, then the arrearages are paid in the order of
normal arrearages and retroactive arrearages.
Upon cross-examination, Ms. Hogue testified that the overdue support as of
December 11, 2007, was the sum of $342.43.
Ms. Hogue also testified that as of February 28, 2008, Defendant was in full and
total compliance with the Support Order, and that he had made payment in full of
all retroactive arrears in the sum of $244.72. N.T.57-58.
On the second issue, Attorney Manolis testified relative to his standing in the
community as a lawyer, and that his rate for services rendered in this type of case
is the sum of $210.00 per hour for himself, and the sum of $150.00 per hour for
his partner, Attorney Ted Saad, Jr.
The Plaintiff’s Exhibit No.1 consists of a Statement for Services Rendered by the
Defendant’s law firm, Verterano & Manolis, in the sum of $4,770.00 in fees, plus
$145.70 in expenses…
At this time, in that the Defendant has paid in full the arrearages in this case, the
only thing pending for collection by the Plaintiff are the costs in this case, that
being $244.12.
In addition, the Plaintiff asserts that she should not be required to pay the
Defendant’s fees just because Domestic Relations did not know how to act in this
case…
The Defendant argues that the Plaintiff’s entry of judgment on December 11,
2007 was erroneous, in that even considering the sum of $1,305.36, that figure
included the current months support payment of $731.21, as a result, even with
that calculation, as only the sum of $567.15 would be overdue support.
In addition, the Defendant argues that the judgment entered on March 12, 2008,
was again erroneously entered, in that the Plaintiff’s own testimony admits that
she knew that the figures were not correct at that time, and that there was a
pending appeal of the case, and that the Plaintiff knew that the Defendant has
requested a DeNovo hearing prior to the entry of Judgment.
5
The Plaintiff argues on the attorney’s fee issue, that the Defendant could have
paid the arrearage balance and ended this case. However, the Defendant argues
that both Judgments were entered improperly, that the Plaintiff knew that the
Judgments were entered improperly, but did it anyway. The Defendant argues that
he should not be expected to pay just whatever it is that Plaintiff says is due and
owning, and that he has a right to challenge the entry of the improper Judgment.
***
[T]he Court … make[s] its determination that the Plaintiff’s entry of Judgment on
March 12, 2008, as well as on December 11, 2007, was improper; not in
accordance with the Rules of Civil Procedure; not in accordance with the
Domestic Relations Statute; was necessarily stricken by the Court.
Accordingly, the Court will enter its accompanying Order confirming the striking
of the Judgments in this case.
The Defendant has filed, in both of his Petitions to Correct Judgment, a request
for attorney’s fees, based upon the theory that the Plaintiff filed both Judgments
without factual or legal authority…
As this Court has indicated at the beginning, this case has a history of
acrimonious conduct and attempts by the Plaintiff to take advantage of situations
which are neither legal nor proper.
The Court concludes that the Plaintiff has been acting in this litigation in a very
spiteful manner, that her conduct is sufficiently within the requirement of a suit
brought “vexatiously,” and as such the Defendant is entitled to an award of
attorney’s fees.
The Defendant, through his counsel, presented evidence that the Defendant has
incurred counsel fees in the sum of $4,770.00 plus expenses of $145.70. Based
upon the evidence as to Plaintiff’s vexatious conduct in this matter, the Court
determines that the Plaintiff shall be liable for Defendant’s attorney’s fees in the
sum of $2,385.00…1
It is from these events that the incarceration which the petitioner seeks to challenge here
arose.
As a result of the petitioner’s failure to comply with the June 23, 2008 order as discussed
above, on November 30, 2008, she was adjudicated in civil contempt, and the required attorney’s
1
It is difficult to comprehend how in this age of computers, the appropriate persons were unable to keep and
maintain accurate records.
6
fees were increased to $3,952.50 plus legal interest if not paid within forty-five days.2 An appeal
was taken to the Superior Court which determined that her resistance to the order was meritless
and concluded that she was not entitled to any relief.3
While this matter proceeded in the courts of the Commonwealth, the petitioner
unsuccessfully sought a preliminary injunction or temporary restraining order in this Court to bar
those proceedings.4
As a result of her continued failure to respect the orders of the Court of Common Pleas,
on December 21, 2010 it was determined that the petitioner was in civil contempt, the award of
counsel fees was amended to reflect the increased costs to $8,784.50 and the petitioner was
sentenced to a ninety day period of incarceration, unless she paid the outstanding fees pursuant to
a schedule established by the court.5 Again an appeal was pursued in the Superior Court which
Court on September 13, 2011, affirmed the finding of civil contempt regarding her failure to pay
counsel fees.6 A petitioner for allowance of appeal to the Pennsylvania Supreme Court was filed
on December 21, 2011, and is still pending.7
Because of the petitioner’s continued failure to respect the court orders, on November 17,
2011, it was ordered that she begin serving her ninety her sentence on November 21, 2011 and
additional attorney’s fees were awarded.8
On January 4, 2012, following a hearing on petitioner’s request to transfer her
incarceration to house arrest or work release, the Court of Common Pleas entered an Order
suspending her incarceration for civil contempt which order was to be immediately reinstated if
the petitioner failed to commence making the required payments pursuant to a schedule
established by the court. In addition the petitioner was released on her own recognizance bail and
required to remain within the Commonwealth of Pennsylvania. It was further ordered that a
compliance hearing be conducted on April 24, 2012.9
2
See: Exhibit B to the answer.
See: Exhibit C to the answer.
4
See: Docket No. 2:09-cv-266. That determination was affirmed by the Court of Appeals on August 17, 2010. It is
interesting to note that in the latter case the plaintiff paid both the $350 docketing fee in this Court as well as the
$455 docketing fee in the Court of Appeals clearly demonstrating her ability to pay.
5
See: Exhibit D to the answer.
6
See: Exhibit F to the answer.
7
While the respondent argues that petitioner has failed to exhaust the available state court remedies, where, as here
the petition is denied on its merits such action may be taken despite a failure to exhaust. 28 U.S.C.§2254(b)(2).
8
See: Exhibit H to the answer.
9
See: Exhibit I to the answer.
3
7
Unlike criminal contempt which is designed to be punitive, International Union v.
Bagwell, 512 U.S. 821 (1994), the purpose of civil contempt is securing compliance, Gompers v.
Buck’s, 221 U.S. 418 (1911). The Court in Bagwell explained that “the contemnor is able to
purge the contempt and obtain his release by committing an affirmative act, and thus ‘carries the
keys of his prison in his own pocket.’” 512 U.S. at 828.
In a factually analogous case involving civil contempt for failure to pay an assessment in
conjunction with a divorce, Chadwick v. Janecka, 312 F.3d 597, 613 (2002), cert. denied 538
U.S. 1000(2003) the Court wrote:
Because the state courts have repeatedly found that Mr. Chadwick has the present
ability to comply with the July 1994 state court order, we cannot disturb the state
court’s decision that there is no federal constitutional bar to Mr. Chadwick’s
indefinite confinement for civil contempt so long as he retains the ability to
comply with the order requiring him to pay over the money at issue.
In the instant case, in its Order of January 4, 2012, the court observed that “the Plaintiff is
employed by the Commonwealth of Pennsylvania through the Department of Public
Welfare…”10 In addition, in its Opinion and Order of June 20, 2008, the court referred to the
support hearing conducted on August 7, 2007 and found no reason to alter its prior
determinations other than the matter regarding additional attorney’s fees.11 Furthermore, in its
September 13, 2011 Memorandum, the Superior Court refers to the issues raised by the parties
but there is no indication that it was ever asked to address a claim of inability to pay to
judgment.12 Indeed, even in her petition to this Court, Van Tassel never argues that she is unable
to pay but rather she seeks to challenge the state court’s orders on due process grounds which
were not argued in the appellate court.13
Thus, unless the petitioner demonstrates that she is unable to comply as opposed
to being unwilling to do so, the determinations of the state courts are presumed correct.
10
Id. It does appear that the petitioner’s employ was terminated as a result of the contempt proceedings.
See: Exhibit A to the answer.
12
See: Exhibit F to the answer.
13
See: Petition at ¶12 and Exhibit F to the answer. However, petitioner did testify that she had been earning
$38,466; that she received almost $5000 for a gas lease; that in addition to her mortgaged home she owns 45 acres
of land; that she had received $67,800 “up-front bonus money on that property;” that she mortgaged her home in
2008 for $141,000 which was used to pay off other loans (See: Petitioner’s Exhibit F at p. 6,22,31,35,41 and 44.).
Despite the exhaustive testimony presented no claim of inability to pay was even made nor did the court ever make
such a determination. (See: Transcripts of the the seven hearings held on this matter between May 8, 2008 and
March 6, 2012 at Petitioner’s Exhibits C,F,H,J,P,T and W).
11
8
Chadwick, supra., 28 U.S.C.§ 2254(e)(1). Because the petitioner has failed to make such
a showing here, her petition will be dismissed.
An appropriate Order will be entered.
9
ORDER
AND NOW, this 9th day of May, 2012, for the reasons set forth in the foregoing
Memorandum, IT IS ORDERED that the petition of Lynn A. Van Tassel for a writ of
habeas corpus is DISMISSED, and it is further Ordered that because reasonable jurists
could not conclude that a basis for appeal exists, that a certificate of appealability is
DENIED.
s/ Robert C. Mitchell
United States Magistrate Judge
10
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