Kundratic, A. v. Kundratic, S.

• Court: Superior Court of Pennsylvania
• Decided: August 26, 2014
• Docket: 2057 MDA 2013
• Status: Unpublished

Opinion

J-A14022-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREW KUNDRATIC, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

SOPHIA KUNDRATIC,

Appellee No. 2057 MDA 2013

Appeal from the Order Entered October 31, 2013 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2006-04975

BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED AUGUST 26, 2014

Appellant, Andrew Kundratic, appeals from the order entered on

October 31, 2013. We affirm.

on May 9, 1992. On May 2, 2006, Appellant filed a complaint in divorce

against Ms. Kundratic, seeking a decree in divorce and an order equitably

dividing the marital property. Complaint in Divorce, 5/2/06, at 1-4. The

trial court appointed a master to determine the equitable distribution issues

and the master held a three-day equitable distribution hearing, which

spanned the days of January 12, 2009, July 2, 2009, and July 9, 2009.

During the equitable distribution hearing, the parties presented various

real estate valuations for the marital residence. As is relevant to the current

appeal, Ms. Kundratic presented evidence of an expert real estate appraisal,

* Retired Senior Judge assigned to the Superior Court. J-A14022-14

prepared in May 2007 by a person named Joan Conrad, which appraised the

property at $279,000.00. N.T. Hearing, 7/2/09, at 59-65. The master also

received a competing expert report, prepared in January 2007 by a person

named Tom Leighton, which appraised the property at $359,000.00. Id. at

65.

On November 10, 2009, the master issued his report and

recommendation and, with respect to the value of the marital residence, the

Report and Recommendation, 11/10/09, at 4. The master recommended

that the trial court award Ms. Kundratic 55% of the entire marital estate

(including the marital residence) and Appellant 45% of the entire marital

estate. Id. at 8.

improperly valued the marital residence. The trial court denied this

particular exception because, it declared, the parties had only submitted one

appraisal of the marital residence which was the $279,000.00 appraisal

performed by Ms. Conrad. Trial Court Opinion, 8/2/10, at 8. Therefore, the

trial court held, since only one appraisal was submitted to the master, the

marital residence was properly valued at $279,000.00. Id. However, the

trial court remanded the case to the master for further proceedings. Id. at

1-18.

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On July 18, 2011, the master issued a supplemental report and

recommendation, wherein the master made additional factual findings and

recommendations in the case. On September 21, 2011, the trial court

entered its divorce decree, decreeing that Appellant and Ms. Kundratic were

divorced and that the trial court was incorporating the November 10, 2009

supplemental report and recommendation into the decree. Trial Court

Decree, 9/21/11, at 1.

Appellant filed a notice of appeal to this Court. On appeal, Appellant

the value of the marital residence because it failed to consider both

See Kundratic v. Kundratic, 62 A.3d

463 (Pa. Super. 2012) (unpublished memorandum) at 3. A three-judge

meritless. Yet, with respect to A

failing to consider both of the marital home appraisals, the panel observed

numbers and that both appraisals were entered into evidence during the

equitable distribution hearing. Thus, we held:

Because the record does contain evidence of the entry of the exhibits, the trial court erred in finding there was only one submitted appraisal. We remand for the court to consider all of the evidence of record as to the issue and determine the fair market value for the marital residence for equitable distribution purposes.

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Kundratic v. Kundratic, 62 A.3d 463 (Pa. Super. 2012) (unpublished

memorandum) at 4 (internal footnotes omitted).

Nevertheles

must examine the two appraisals and review the testimony of the parties on

Id. at 4 n.3. We affirmed the

decree. Id. at 9.

While the case was on remand to the trial court and despite the fact

that our remand order specifically limited the scope of remand to a

for equitable

on September 23, 2013, Appellant filed a petition in

the trial court to vacate the September 22, 2011 divorce decree. Within this

d]ecree, [Appellant] learned of [] instances of extrinsic fraud which

counsel were ineffective while representing Appellant.1 Id. at 2-5. ____________________________________________

1 Specifically, Appellant claimed: 1) during a protection from abuse hearing,

reasonable actio

(Footnote Continued Next Page)

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vacate the divorce decree without a hearing and, on November 15, 2013, 2 Appellant Appellant now

raises one claim on appeal:

Did the trial court err by denying the petition to vacate divorce decree without hearing any evidence on the merits.

_______________________ (Footnote Continued)

dy rights with his minor child until

contempt proceedings against Ms. Kundratic on two separate occasions; 6) disability;

a stipulation that valued an asset at a lower amount than it was worth; 8)

the [o]rde

prior counsel erroneously advised

to Vacate Divorce Decree, 9/23/13, at 2-5. The only allegations that pertain eys are that: in April 2007, Appellant was excluded from the marital residence and, as a result,

[master] that [Ms. Kundratic] had a co-signer to re-finance the mortgage on Id. at 2-3. 2 While the case was on remand, the trial court explicitly considered both

1-2. Further, after considering all the evidence of record, on October 1, 2013, the trial court again concluded that the value of the marital residence was $279,000.00. Trial Court Order, 10/1/13, at 1. We note that Appellant

Kundratic v. Kundratic, ___ A.3d ___, 1888 MDA 2013 (unpublished memorandum) at 1-9.

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apitalization omitted).

As explained above, our original remand order was limited in scope.

Specifically, we ordered a remand so that the trial court could determine

Kundratic v. Kundratic, 62 A.3d 463 (Pa. Super. 2012)

(unpublished memorandum) at 4. Notwithstanding the limited scope of our

remand order, Appellant attempted to raise additional issues on remand

before the trial court. Specifically, Appellant attempted to claim that the

-5.

However, since our remand order carried an express limitation, the trial

court was not permit

Quaker State Oil Ref. Co. v. Talbot

remanding a case for rehearing, [the Supreme Court] may limit the scope

thereof to certain defined issues. This limitation restricts the power of the

Levy v. Senate of Pa.,

here a case is

remanded for a specific and limited purpose, issues not encompassed within

the remand order may not be decided on remand. A remand does not

and citations omitted); see also Commonwealth v. Lawson, 789 A.2d

ited

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issue, only matters related to the issue on remand may be appealed [to the

attempted to raise issues that were not encompassed within our limited

remand order, the

hearing.

Further, we note that even if the trial court had the authority to

the trial court properly denied the petition, as

the petition is meritless. Accordin

Petition to Vacate Divorce Decree, 9/23/13, at 1-5. As our Supreme Court

has explained:

s meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise of compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client's interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation. . . . Where [an] alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the [jurisdiction] of the court has been imposed upon, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial.

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McElvoy v. Quaker City Cab Co., 110 A. 366, 368 (Pa. 1920); Justice v.

Justice, 612 A.2d 1354, 1358 (Pa. Super. 1992); see also BLACK S LAW

DICTIONARY 686 (8th

that is collateral to the issues being considered in the case; intentional

misrepresentation or deceptive behavior outside the transaction itself

(whether a contract or a lawsuit), depriving one party of informed consent or

The allegation

Appellant. Yet, as we have held, allegations of ineffective assistance of

counsel do not amount to extrinsic fraud. Ratarsky v. Ratarsky, 557 A.2d

Stockton v.

Stockton, 6

dissatisfaction with his counsel does not [constitute extrinsic fraud]. . . . [A]

) (internal citations

omitted); Melton v. Melton, 831 A.2d 646, 651-652 (Pa. Super. 2003)

(holding that mere ineffective assistance of counsel does not constitute

extrinsic fraud). Thus, the trial court did not err when it denied the

ineffective assistance of counsel claims without a hearing.

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The trial court also did not err when it denied the remaining claims in

of undeveloped declarations that: 1) in April 2007, Appellant was excluded

from the marital residence and, as a result, Appellant could not retrieve

had a co-signer to re-

-5. However,

with respect to these final two allegations, Appellant failed to claim that the

actions or inactions caused Appellant any sort of prejudice or that the events

See McElvoy, 110 at 368

conduct of the prevailing party which has prevented a fair submission of the

controversy

the papers harmed Appel See

Divorce Decree, 9/23/13, at 2-5. Further, with respect to the alleged

-signer to re-

did not sign the mortgage

or that Ms. Kundratic was somehow unable to refinance the mortgage on the

marital residence. See id. Therefore, with respect to these final two

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/26/2014

____________________________________________

3 requests that we remand the

fees. Although meritless, we cannot conclude that the appeal was totally frivolous.

some point.

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