RICHARD C. HVIZDAK Appellant
DOUGLAS G. LINN, ESQUIRE, JENNIFER R. LINN, ESQUIRE, LINN LAW GROUP AND MICHELLE M. HVIZDAK Appellees
from the Order entered June 9, 2017 In the Court of Common
Pleas of Butler County Civil Division at No: AD 15-11055
BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.
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
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.
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.
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.
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.
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
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).
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.
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.
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.
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.
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.
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.
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.
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
August 3, 2016, Judge Horan denied Husband's motion for
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.
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
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 ...