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Hvizdak v. Linn

Superior Court of Pennsylvania

June 18, 2018


          Appeal from the Order entered June 9, 2017 In the Court of Common Pleas of Butler County Civil Division at No: AD 15-11055



          STABILE, JUDGE

         Appellant, Richard C. Hvizdak ("Husband"), appeals pro se from an order sustaining the preliminary objections of Appellees, Douglas G. Linn, Esquire, Jennifer R. Linn, Esquire, Linn Law Group (collectively "Attorneys") and Michelle M. Hvizdak ("Wife") to Husband's third amended complaint and dismissing his civil action with prejudice.

         This action arises from Husband's and Wife's bitter divorce proceedings in the Court of Common Pleas of Butler County from 2007 to 2013. Attorneys represented Wife during the proceedings. Husband asserts, inter alia, that Wife's and Attorneys' conduct during the divorce case render them liable to Husband for violating the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), as well as for abuse of process and wrongful use of civil proceedings. The trial court held that Husband failed to state valid causes of action. We affirm.

         Divorce Proceedings [1]

         Husband and Wife married in 1994 and had two children during the marriage. In 2007, they divorced, and trial court entered a temporary order of child support requiring Husband to pay $7, 500 per month to Wife for the child support. The court also granted Wife exclusive possession of the marital residence.

         In September 2007, Husband presented a petition for special relief claiming that a pre-marital agreement prohibited Wife from removing any of his personal property from the marital residence. On September 26, 2007, the trial court enjoined Husband and Wife from dissipating or removing the other's assets pending equitable distribution proceedings. In July 2008, Husband filed a petition for civil contempt against Wife for removing his items from the residence in violation of the September 26, 2007 order. On August 26, 2008, the court ordered Wife to return all items that did not belong to her or the children. On November 13, 2008, the court held that Wife had substantially complied with the August 26, 2008 order and continued the contempt petition to a later date.

         On February 13, 2009, Husband filed a contempt petition against Attorneys alleging that Wife had violated the September 26, 2007 order at their direction. On February 27, 2009, the trial court denied Husband's petition, observing that the contempt matter was moot because Wife had complied with the August 26, 2008 order directing return of Husband's property. Husband appealed to this Court at No. 565 WDA 2009, which affirmed the order denying Husband's contempt petition against Attorneys.

         The divorce proceedings reached their climax in late 2011 and early 2012 in a dispute over a global settlement agreement. We described these events in Wife's appeal at No. 37 WDA 2012:

On August 22, 2011, the parties reached a global settlement agreement (the "Agreement"). Pursuant to the Agreement, [Husband] would pay [Wife] $2.5 million. Also pursuant to the Agreement, [Husband] was to contribute $3.5 million to be used to fund a trust ("the Trust") for the parties' children ("the Children") in discharge of [Husband]'s child support obligations. Finally, the Agreement required [Husband] to pay $350, 000.00 in counsel fees to [Wife]'s attorneys.
The parties retained counsel to draft documents governing the Trust, and the drafting of the Trust documents took place between August 22 and a scheduled September 28, 2011 bankruptcy hearing. The drafting process was contentious, and in the hours immediately preceding the September 28, 2011 bankruptcy hearing [Wife] requested removal of language in the Trust stipulating that the Trust funds were to be spent for the benefit of the Children. [Wife] believed that she would be able to spend trust funds for her own support as well as for the Children. [Wife] alleges that she signed the Agreement and the Trust documents believing that the requested revision had been made. A federal bankruptcy judge ratified the signed Agreement and Trust documents on September 28, 2011 and dismissed the bankruptcy proceeding.
[Wife] argues that the Trust documents are not binding because the parties did not reach a meeting of the minds as to [Wife]'s ability to use the Trust funds for herself as well as for the Children. [Husband] argues that the purpose of the Trust was to ensure that sufficient funds were available to satisfy his obligation to support the Children. [Husband] agrees that [Wife], as caretaker, will benefit directly or indirectly from using the Trust money for items such as housing and food, but [Husband] argues that the parties never intended [Wife] to have unfettered discretion to use the Trust money for any purpose.
After the ratification of the Agreement in bankruptcy court, [Husband] provided the agreed upon funds. [Wife] has declined to use the money to fund the Trust, pending the outcome of the parties' current dispute. [Husband] therefore filed a petition for special relief on October 25, 2011, asking the trial court to direct [Wife] to fund the Trust pursuant to the Agreement or to replace [Wife] as trustee. The trial court granted [Husband]'s petition in relevant part on December 8, 2011, and entered an order directing the parties to execute the Trust documents. [Wife] filed a motion to reconsider on December 28, 2011. After conducting a hearing on [Wife]'s reconsideration motion, the trial court denied relief in the order presently on appeal.

Hvizdak v. Hvizdak, 2013 WL 11279596, at *1 (Pa. Super., Feb, 22, 2013) (appeal of Wife).

         On January 6, 2012, Wife appealed to this Court. On February 22, 2013, we affirmed the trial court's decision, holding that the Trust agreements were solely for the children's benefit and stating, "Nothing in the record evinces the parties' intent to draft Trust documents clothing Mother with unfettered, unreviewable discretion to dissipate Trust assets without regard for the [c]hildren's benefit." Id. at *4. Wife did not file a petition for allowance of appeal to the Supreme Court.

         The Present Case

         On May 19, 2014, Husband filed a civil action against Wife and Attorneys in the Court of Common Pleas of Allegheny County alleging that their conduct in the Butler County case rendered them liable for racketeering and common law torts. On May 27, 2014, Husband filed an amended complaint in the Allegheny County action.

         According to Husband, in violation of court orders, Attorneys and Wife conspired to steal valuable personal property from the former marital residence in a burst of "pathological glee." First Amended Complaint at ¶¶ 27-28. Husband also accused Wife of "allow[ing] un-housebroken pets to deface, urinate or defecate over sofas, chairs, carpets, and torn down draperies, all of this fomenting an ambience of fetid squalor inside the mansion." Id. at ¶ 29.

         According to Husband, the judge presiding over the divorce proceedings was "vulnerable" to Attorneys' "influences" and grew a "malignant obsession with [Husband], developing [into] an immutable idee fixe." Id. at ¶¶ 48-49. Attorneys "puppeteer[ed]" the judge into seizing Husband's passport, thus preventing Husband from traveling to England on business ventures. Id. at ¶ 79. In addition, Appellant claimed:

[Attorneys] concocted a sensational whispering campaign to circulate the stupendous lie that [Husband] enlisted members of the "Pagans" motorcycle gang to assassinate Butler County President Judge Thomas Doerr, Judge Kelly Streib and [Attorneys]. The Butler County forum became poisoned for [Husband] and [his] efforts to have law enforcement or the judiciary investigate the matter only engendered new enmities and rekindled suspicions.

Id. at ¶ 80.

         Wife and Attorneys filed preliminary objections objecting to venue and asserting that Husband failed to state valid causes of action. On August 13, 2015, the Allegheny County court sustained the preliminary objection to venue and ordered Husband's action transferred to Butler County. Husband did not appeal this decision.

         On December 21, 2015, Butler County President Judge Doerr assigned the case to the Honorable S. Michael Yeager. Husband wrote to Judge Doerr requesting that he "rescind" his case assignment order and disqualify the entire Butler County bench from hearing the case. On January 15, 2016, Judge Yeager recused himself. On January 25, 2016, the case was reassigned to Judge Marilyn J. Horan. On January 26, 2016, Husband filed a motion for recusal of Judge Doerr and the entire Butler County bench. On February 2, 2016, the motion was denied on the grounds that (1) the request with respect to Judge Doerr was untimely and thus moot, and (2) the individual judge assigned to the case alone could determine her own recusal.

         On February 16, 2016, Husband filed another motion for recusal of the entire Butler County bench, including Judge Horan. Husband asserted that (1) false rumors had circulated during his divorce case that he had hired motorcycle gang members to assassinate Attorneys and local judges; (2) Husband requested the appointment of a grand jury to investigate the matter; (3) due to his request for a grand jury, President Judge Doerr recused himself; and (4) President Judge Doerr then denounced Husband in the media and threatened to sue him. Husband alleged that as a result of President Judge Doerr's animus against him, an appearance of impropriety would arise if any other member of the Butler County bench, including Judge Horan, presided over this case.

         On March 2, 2016, Husband filed a motion for extraordinary relief in our Supreme Court seeking recusal and disqualification of the Butler County bench. On March 3, 2016, Judge Horan heard oral argument on Husband's motion. On March 4, 2016, Judge Horan stayed her decision pending the disposition of Husband's motion in the Supreme Court. On June 10, 2016, the Supreme Court denied Husband's motion.

         On August 3, 2016, Judge Horan denied Husband's motion for recusal, stating:

Following careful review of the record, [Husband's] Motion for Recusal and disqualification of this judge, and argument by [Husband] and Defendants from March 3, 2016, this judge concludes that there is no legitimate basis to grant [Husband's] Motion. This judge has no prior involvement with [Husband] or with any matters involving him within this Court. There is nothing to preclude this judge from presiding over the above case.

Order, 8/1/16, at 2.

         Judge Horan scheduled briefing and argument on the remaining preliminary objections to Husband's first amended complaint. On November 3, 2016, Judge Horan entered an order sustaining the preliminary objections to the amended complaint for legal and factual insufficiency but permitted Husband sixty days to file a second amended complaint to cure the defects.

         On January 3, 2017, Husband filed a second amended complaint. Wife and Attorneys filed preliminary objections to the second amended complaint's legal and factual sufficiency. Husband responded by filing a third amended complaint on March 1, 2017 which purported to set forth claims of RICO Act violations, conspiracy, fraud, abuse of ...

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