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In re Estate of Disabato

Superior Court of Pennsylvania

June 13, 2017


         Appeal from the Order Entered February 3, 2016 In the Court of Common Pleas of Chester County Orphans' Court at No(s): 1506-0528

          BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E. [*]


          STEVENS, P.J.E.

         Pro se Appellant, Peter DiGiovanni, challenges the Order entered by the Court of Common Pleas of Chester County, Orphans' Court division, finding him in "continuing contempt" for his failure to make scheduled payments to an estate for which he previously acted as administrator. We affirm.

         On December 18, 2015, and February 3, 2016, the Orphans' Court of Chester County entered Orders declaring Appellant Peter DiGiovanni to be in continuing contempt of the court's previous Orders of July 18, 2012, August 6, 2013, and July 29, 2014. The previous Orders directed DiGiovanni to pay $500.00 per month to the Co-Executors until he paid off a $29, 279.55 debt representing costs and fees incurred by the Estate in succeeding DiGiovanni as executor/administrator back in 2007.[1]

         As for the July 18, 2012, Order, DiGiovanni argued that the court expressly acknowledged that he had no present ability to comply with the Order and directed him to liquidate property declared exempt from his Chapter 7 bankruptcy proceedings. Of note, Appellee's Co-Executors had previously prevailed upon the bankruptcy court that DiGiovanni's debt to the estate was non-dischargeable because it was caused by DiGiovanni's willful behavior and misconduct.

         DiGiovanni argued that the trial court's July 18, 2012, Order wrongfully imposed a new financial obligation upon him. On direct appeal, this Court affirmed the trial court's Order, but it remanded the matter for the court to enter a new Order calling for the sale of items not protected under the federal bankruptcy law.

         On July 29, 2014, another hearing upon a Petition for Contempt resulted in an Order reiterating DiGiovanni's obligation to make $500 payments every month until he paid off the $29, 279.55-plus-interest sum. The Order further declared that any failure of DiGiovanni to comply with this or any previous Order would entitle Appellee Estate, through the Co-Executors, to obtain a Review Hearing. DiGiovanni never appealed from this Order.

         On January 23, 2015, Appellee requested a Review Hearing for DiGiovanni's continuing failure to comply with the Order. At the April 28, 2015, hearing, DiGiovanni admitted to receiving payments in cash for odd jobs, electrical work, and law clerking, as his license to practice law had been suspended since 2010. He actually had been eligible to seek reinstatement of his license since 2011, but he claimed he could not afford the approximately $4, 500 in costs and fees necessary to accomplish reinstatement.[2]

         Near the conclusion of the hearing, the Orphan's Court summarized the frustration of DiGiovanni's chronic failure to make regular payments despite every appearance that he possessed the ability to earn more income than he was earning:

THE COURT: Okay. The conundrum for me, Mr. DiGiovanni, is you have never denied, at least not recently, that you owe the money, that it should be coming in on a regular basis and that you need to be working in order to do that, and then the wheels fall off, and frankly I am not inclined to keep awarding counsel fees, it's just not - there comes a point at which it is completely counterproductive.
On the other hand, I have not found the approach or the sanction that seems to really work and seems to be the motivation that there tended to be in order to have you make payments that you're called to make, which payments, by the way, were a tremendous break from the lump sum that was due, and I recognize that.
I mean, receiving a $500 a month [obligation] over time when the principal amount is somewhere in the $28, 000 range, that a long time it's going to take, but I want the Demkos to be made - the estate to be made whole, if at all possible.
We have been through a lot. We've been through bankruptcy, we've been through cyclical inability to obtain any kind of work, and I think one of the frustrations, Mr. DiGiovanni, is that you do a pretty darn good job of putting together information for the Court when push comes to shove. Your exhibits are clear, your tax return's clear. I mean, I know that's a program, but nonetheless, you work with attorneys who find your work sufficiently good that they're willing to have you come back and do more for them.
So obviously you're capable, the question is now how do we turn that into something that gets you out of my courtroom, out of my hair, out of their hair and gets you out from under this obligation, and I'm listening for suggestions at this point because counsel fees haven't done anything.

N.T. 4/18/15 at 195-97. The court later declared that it did not "have any questions really at this point that Mr. DiGiovanni's in ...

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