Morgan Response to Nevyas Motion for Contempt

8/22/2019 Morgan Response to Nevyas Motion for Contempt

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HERBERT J. NEVYAS, M.D., andANITA NJVYAS-WALLACE, M.D., andNEVYAS EYE ASSOCIATES, P.C.,Plaintiffsvs.DOMINIC MORGAN, andSTEVEN A FRIEDMAN

Defendants

COURT OF COMMON PLEASTFJAL DryISIONPhiladelphia CountyNOVEMBER TERM,2OO3NO. 946

Pronosed ORDERAnd Noq to wit this day of ,20II upon consideration of plaintiffs,

8/10/11 Petition for Civil Contempt and Sanctions," and responses of the other parties, thePetition is DElritED.

BY THE COURT:

DiNubile, S.J.


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HERBERT J. NEVYAS, tuI.D., andANITA NEVYAS-WALLACE, M.D., andNEVYAS EYE ASSOCIATES, P.C.,Plaintiffs

Dominic J. Morgan, pro sePO Box 1011Marlton, NJ 08053rc10\ 364-3367COURT OF COMrlviON PLEASTRIAL DTVISIONPhiladelphia CountyNOVEMBER TERM.2OO3NO. 946

VS.DOMINIC MORGAN, andSTEVEN A FRIEDMANT)efenrlqntcPno DonrrN FFS' 8/I TION FORCrvrr, CoNruupr .{Np SnNctroNs1-13. Denied as stated. Plaintiffs' Petition for Civil Contempt and Sanctions is based

upon plaintiffs' misrepresentation that the Honorable Victor J. DiNubile, Jr.'s 3/16lIIOrder enjoins defendant Morgan 'ufrom continuing to publish statements cnticizingPlaintiffs'/Petitioners' professional actions and integrity"( Petition lfl, italics added).Judge DiNubile did not use the word "continuing," did not enjoin any statementspubiished on Morgan's website at the time of trial, did not award any damages, and oniyenjoined subsequent publishing of certain statements all removed vears ago. Plaintiffsmisrepresentby improperly paraphrasing Judge DiNubile's 3116/11 Order and ignoringHis Honor's three other Orders and Opinion.

By way of further answer: After concluding a six-day bench trial on 3/16/11, theHonorable Victor J. DiNubile, Jr. issued four Orders and one Opinion, all pursuant to theSuperior Court's 2007 Order remanding this case for trial:

tl30 we agree with the trial court that Morgan agreed to take down thespecific libelous r+'ording from his website as posted on July 30, 2003, andthat, pursuant to the agreement, those specific libelous statements were to


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be prohibited thereafter.... his letter specifically reserved the right to"update" his website "within the legal guidelines as allowed bf tne tawand the First Amendment which grants me freedom of speechi'....Likewise, we find that Morgan did not agree to waive his right to make,if he so chooses anci at iris own risk, libeloris statements in the future,unrelated to the statements on his website as of July 30, 2003.!f 31 The question remains, however, whether the siatements thatappeared on the website that are the subject of this action are the same asthe prohibited postings of Jury 30,2003, and, of course, if not, whetherthey are in fact defamatory. Accordingly, because these issues were notaddressed by the trial court, we vacate the order and remand for furtherfindings and proceedings consistent with this Opinion.Nevyes v. Mcrgan,2007 pA Super. 6d at fl,Jf :O_Jf

Judge DiNubile's four Orders and one Opinion are:Judge DiNubile's 3lr6fir order re verdict (Exhibit r at p.2)Judge DiNubile's 4la6/fi order re informa pauperis (Exhibit 2)iucige DiNubile's \ tzgiri order denying post-trial motions (Exhibit 3 atpp. l_2, underlining added)Judge DiNubile's 0610_6/11 order denying any sealing of record (Exhibit a)Judge DiNubile's 6117ll1 opinion for Superior court lrxhibit 5 at p. g,underlining added)At trial, Judge DiNubile evaluated Morgan's websites (which included all

(1)(2)(3)(4)(s)

statements plaintiffs cite in their instant petition) and ruled:5. Any future publication in vioiation of this Order, after due notice to DefendantDominic Morgan and after hearing before this Court in which a finding is madethat there is such a violation, shall result in a finding of civil contempiof Courtand imposition of appropriate sanctions.Judge DiNubile's 03fi6/r1 order re verdict (Exhibit r atp.2)

Judge DiNubile explained:Plaintiffs maintain that this Court's injunctive Order against Morgan wasambiguous. This Court respectfully disagrees. A reading of the inJunctive Order,coupled with the findings of Fact and Conclusions of law, make ii clear thatMorgan's publications in the swnmer of 2003 were defamatory and that Morganand the Plaintiffs entered into an agreement shortly thereafter,ln which Morganagreed to diseonti-nue the publieation of the defarnatory material. In 2005, .IudgeMaier found that avalid settlement agreement existed, which was affirmed by the


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Superior Court. This Court has confirmed the previous rulings precludingpublioation of subsequent defarnatory materiai Paragraph Ten of this Court,sAdditional Findings of Fact states that there has been no proof of subsequentviolations, at least since the hearing by Judge Maier. Whether ivroffi breachedthe Settlement Agreement prior to the hearing before Judge Nlaier loes not, in anyway, affect the legal significance of this court's injunctive order.Judge DiNubile's 04128111 Order denying post-trial motions (Exhibit 3,underlining added)ANDPlaintiffs also argue on appeal that this Court's injunctive Order againstMorgan was ambiguous. This court respectfully dirugr".r. A reading ofthe injunctive order, coupled with the Findingsof Fact and ConclusLns ofLaw, make it clear that Morgan's publications in the summer of 2A03 wercdefamatory and that Morgan and Plaintiffs entered into an agreementshortly thereafter, in which Morgan agreed to discontin,r" th" publicationof the defamatory material. In 2005, Judge Maier found that a validsettlement agreement existed, which was affirmed by the Superior Court.This Court has confirmed the previous rulings precluding publication ofsubsequent defamatory material Paragraph Ten of this Court's AdditionalFindings of Fact states that there has been no proof of subsequentviolations, at least since the hearing by Judge Maier. whether Morganbreached the Settlement Agreement prior to the hearing before Judleivlaier does not, in any way, affect the iegal significance of this court,sinjunctive Order.

Judge DiNubile's 06/17/ll Opinion for Superior Court (Exhibit 5, underliningadded)At trial, plaintiffs either lost their arguments or failed to argue the statements

which plaintiffs cite in their petition, and did not cite those statements in their post-trialmotion. Even if Morgan's statements were not true, the statute of limitations to complainhas long expired, and Morgan has not added anything to any website since trial (nor doplaintiffs so allege).

Judge DiNubile enjoined subsequent (future) publication of certain statements thathad aii been removed years aeo, and did not - as plaintiffs misrepresent - enjoincontinuing publication of any statement which plaintiffs cite in their petition.


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Plaintiffs have repeatedly misrepresented court orders - e.g., in response toplaintiffs' "on notice" letter atlQ} (plaintiffs' exhibit 7), Morgan noted in his reply(plaintiffs' exhibit 8, italics adde


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PO Box 1011Marlton, NJ 08053HERBERT J. NEVYAS, M.D., andANITA NEVYAS-WALLACE, tuI.D., andNEVYAS EYE ASSOCIATES, P.C.,Plaintiffs

VS,DOMINIC MORGAN. andSTEVEN A FRIEDMAN

COURT OF COMMON PLEASTRIAL D|v*ISIONPhiladelphia CountyNOVEMBER TERM,2OO3NO. 946

Defendants

Plaintiffs' Petition for Civil Contempt is based upon plaintiffs' misrepresentation that theHonorable Victor J. DiNubile, Jr.'s 03lT6lll Order enjoins defendant Morgan'ofrom cantinuingto publish statements criticizing Plaintiffs'/Petitioners' professional actions and integrity,'(Petition lil, italics added). Judge DiNubile did not use the word"contintting,', did not enjoinany statements published on lr4organ's website at the time of triai, did not awardany damages,and only enjoined subsequent publishing of certain statements all removed years ago. plaintiffsmisrepresent by improperly paraphrasing Judge DiNubile's 03116111 Order and ignoring HisHonor's three other Orders and Opinion.

After concluding a six-day bench trial on 03116/11, the Honorable Victor J. DiNubile, Jr.issued four Orders and one Opinion, all pursuant to the Superior Court's 2A07 Orderremandingthis case for trial:

fl 30 we agree with the trial court that Morgan agreed to take down thespecific libelous wording frorn his website as posted on,ruly 30, 2003, andthat, pursuant to the agreement, those specific libelous statements were tobe prohibited thereafter.... his letter specifically reserved the right tou'updateo'his website o'within the legal guidelines as alloweii Oy ttre law and theFirst Amendment which grants me freedom of speech."....Liklwise, we find that


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(l)(2)(3)(4)(s)

Morgan did not agree to waive his right to make, if he so chooses and at his ownrisk, libelous statements in the fi,rture, unrelated to the statements on his website asof July 30,2AA3.ti 31 The question remains, however, whether the statements thatappeared on the website that are the subjeet of this action are the same asthe prohibited postings of July 30,2003, and, of course, if not, whether they are infact defamatory. Accordingly, because these issues were notaddressed by the trial court, we vacate the order and remand for furtherfindings and proceedings consistent with this Opinion.Nevyas v. Morgan,2007 PA Super. 66 atll,,30-31

Judge DiNubile's four Orders and one Opinion are:Judge DiNubile's 3116111 Order re verdict (Exhibit I at p. Z)Judge DiNubile's 4/06/11 Order re informa pauperis (Exhibit 2)Judge DiNubile's a4/28111 order denying post-trial motions (Exhibit 3 atpp. l-2,underlining added)Judge DiNubile's 06106/11 order denying any sealing of record (Exhibit a)Judge DiNubile's 6/17lT1 Opinion for Superior Court (Exhibit 5 at p. 8, underliningadded)

At trial, Judge DiNubile evaluated Morgan's websites (which included all statementsplaintiffs cite in their instant petition) and ruled:

5. Any future pubiicaiion in violation of this Order, after due notice to DefendantDominic Morgan and after hearing before this Court in which a frnding is madethat there is such a violation, shall result in a finding of civil contempt of Courtand imposition of appropriate sanctions.Judge DiNubile's 03116/11 Order re verdict (Exhibit I atp.2)

Judge DiNubile explained:Piaintiffs maintain that this Court's injunctive Order against Morgan wasambiguous. This Court respectfully disagrees. A reading of the injunctive Order,coupled with the findings of Fact and Conclusions of law, make it clear thatMorgan's publications in the summer of 2003 were defamatory and that Morganand the Plaintiffs entered into an agreement shortly thereafter, in which Morganagreed to discontinue the publication of the defamatory material. In2}A1,JudgeMaier found that a valid settlement agreement existed, which was affirmed by theSuperior Court. This Court has confirmed the previous rulings precludingpublication of subsequent defamatory material. Paragraph Ten of this Ccurt'sAdditional Findings of Fact states that there has been no proof of subsequent


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violations, at least since the hearing by Judge Maier. Whether Morgan breachedthe Settlernent Agreernent prior to the hearing bef,ore Judge Maier does not, in anyway, affect the legal significance of this court's injunctive order.Judge DiNubile's 04128111 order denying post-trial motions (Exiribit 3,underlining added)

ANDPlaintiffs also argue on appeal that this Court's injunctive Order against Morganwas arnbiguous. This Court respectfully disagrees. A reading of the injunctiveOrder, coupled with the Findings of Fact and Conclusions of Law, make it clearthat Morgan's publications in the summer of 2003 were defamatory and thativ{organ and Piaintiffs entered into an agreement shortiy thereafter, in whichMorgan agreed to discontinue the publication of the defamatory matefial.In2005,Judge Maier found that avalid settlement agreement existed, which was affirmedby the Superior Court. This Court has confirmed the previous rulings precludingpublication of subsequent defamatory material Paragraph Ten of this Court'sAdditional Findings of Fact states that there has been no proof of subseque4tviolations, at least since the hearing by Judge Maier. Whether Morgan breachedthe Settlement Agreement prior to the hearing before Judge Maier does not, in anyway, affect the legal significance of this Court's injunctive Order.Judge DiNubile's 06117/11 Opinion for Superior Court (Exhibit 5, underlining added)At trial, plaintiffs either lost their arguments or failed to argue the statements which

plaintiffs cite in their petition, and did not cite those statements,in their post-trial motion. Even ifMorgan's statements were not true, the statute of limitations to complain has long expired, andMorgan has not added anything to any website since trial (nor do plaintiffs so allege).

Judge DiNubile enjoined subsequent (future) publication of certain statements that had allbeen removed years ago, and did not - as plaintiffs misrepresent - enjoin continuingpublicationof any statement whieh piaintiffl; eite in their petition.

Plaintiffs have repeatedly misrepresented court orders - e.g., in response to plaintiffs' "onnotice" letter at tf20 (plaintiffs' exhibit 7), Morgan noted in his reply (plaintiffs' exhibit 8, italicsadcieri):


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Insofar as statemerrt #]Q, mlslepresenting court orders - one example: onNovember 1 7, 2003 Judqg sylie^s t-er de nie d your r e que s t fo, o p, "'l i *,inoryinjunction. So you,-an fficer of the conrt, wrate my inteinet ciryier, DiscountDomain R si:!/: Inc.,-who you had been threatening to sue tf they did not shutmy website: "[YJou told me thot unless tle-judge gave qpproval to the content ofthe website 'lasiksucks4u.com,' you wouldTeiovZ thu iiutitt. ri; j;;g, did notapprove the website. " This misrepresentation, under false color of Jtaie'action,led to shutting my website and dissemination of password-protected -ut..iut,violating my free speech rights.Plaintiffs do not (and cannot) dispute misrepresenting court orders.Concr,usroN:

For the reasons stated above, Plaintiffs' Petition for Civil Contempt and Sanctionsshouird be denied.

VnRrrrcarrox:I, Dominic J' Morgan, defendantpro se verifu these statements to be true, and understand

that these statements are matle subjeet to penalties of 18 Pa.C.S. Sec. 49fr4 relating io unswornfal sification to authorities.


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Csnrnrclrr or SnRvrcn:I certify that atrue and correct copy of the attached document has been e-mailed ormailed first class prepaid to the persons listed below on the date listed below:

Leon Silvefinan? EsquireStein & Silverman, P.C.230 South Broad Street, 18ft FloorPhiladelphia, PA. [email protected] F itzgeruld, Es quireEckert Seamans Cherin & Mellott, LLC2Libertv Place50 South 16tr' Street -Z2nd FloorPhiladelphia, PA 19102mfitzgerald@eckertseamans. com

lly submitted,

Date: August26,20ll , pro se & informa pauperis

Documents

Morgan Response to Nevyas Motion for Contempt