J-A16007-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
RICHARD MICKMAN, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ELAINE MICKMAN,
Appellant No. 1469 EDA 2017
Appeal from the Order Entered March 21, 2017 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 03-06252
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 17, 2018
Elaine Mickman (Appellant or Defendant) appeals pro se from the order
dated March 20, 2017, and entered on March 21, 2017, that denied her
Petition to Open/Vacate Divorce Decree Based On “Newly” Discovered
Evidence and granted Richard Mickman’s (Appellee or Plaintiff) motion to
dismiss Appellant’s petition. The order also denied Appellant’s Petition to
Reinstate Alimony and granted Appellee’s motion to dismiss the alimony
request. For the reasons that follow, we affirm.
Appellant raises the following two issues for our review:
1. The court erred and abused its discretion by procedurally and substantively denying a due process hearing to present evidence, testimony, and witnesses for a “timely” filed Petition to Open/Vacate a Divorce Order for Extrinsic Fraud with attached “Newly” discovered prima facie material evidence collateral to the divorce, thereby denying and dismissing the petition without a meaningful right to be heard, further, J-A16007-18
denying a Reconsideration Motion which pointed out “clear error of fact or law”, and relying on the original divorce … determination which was based on extrinsic fraud placed upon the court.
2. The [c]ourt erred and abused its discretion by denying Appellant a hearing and dismissing the Petition to Re-instate Alimony in connection with the “timely” filed Petition to Open/Vacate the Divorce order for later discovered Extrinsic Fraud.
Appellant’s brief at 5 (emphasis in original).
With regard to the arguments raised in relation to the denial of
Appellant’s most recent petitions to open/vacate the divorce decree and to
reinstate alimony, we have reviewed the certified record, the briefs of the
parties, the applicable law, and the thorough, 15-page opinion of the
Honorable Patricia E. Coonahan of the Court of Common Pleas of Montgomery
County, dated June 14, 2017.1 We conclude that Judge Coonahan’s well-
reasoned opinion accurately disposes of the issues presented and we discern
no abuse of discretion or error of law. Accordingly, we adopt Judge
Coonahan’s opinion as our own and employ the discussion contained therein
as the basis for affirming the order from which this appeal arose.
However, we are compelled to comment on Appellant’s numerous
frivolous and vexatious lawsuits filed by her in attempting to re-open or vacate
____________________________________________
1Specifically, our review included the most recent decision filed by this Court, which in many ways mirrors the arguments raised instantly. See Mickman v. Mickman, No. 1426 EDA 2016 and No. 2097 EDA 2016, unpublished memorandum (Pa. Super. filed July 15, 2017).
-2- J-A16007-18
the divorce decree.2 We begin by referencing Pa.R.C.P. 233.1, which pertains
to frivolous litigation “that limits the ability of pro se plaintiffs to prolong
litigation through the filing of serial complaints after the claims they allege
have been resolved.” Gray v. Buonopane, 53 A.3d 829, 834 (Pa. Super.
2012). However, Rule 233.1 provides that “[t]he provisions of this rule do
not apply to actions under the rules of civil procedure governing family law
actions.” Despite the language of the rule, the Winpenny III v. Winpenny,
775 A.2d 815 (Pa. Super. 2001) case, which involved a partition action for the
sale of property held by the entireties pursuant to the parties’ divorce
settlement, determined that “[t]he issues raised by [the] appellant herein are
nothing more than recycled claims which previously were addressed by the
courts of this Commonwealth over the span of more than two decades.” Id.
at 817. The Winpenny opinion notes that stronger sanctions beyond those
previously imposed were “necessary to further dissuade [the] appellant from
conducting herself in a dilatory and vexatious manner” in that she continues
to litigate issues addressed and disposed of on direct appeal. Id. at 818. The
Winpenny Court further stated that,
it is clear [the] appellant’s insistence on repeatedly raising previously litigated issues goes beyond the conduct tolerated by our judicial system. This case is a clear example of a litigant who has abused the process of the courts of this Commonwealth. Accordingly, we find [the] appellant’s habitual conduct warrants the imposition of additional costs, fees and damages. ____________________________________________
2 This appeal appears to be Appellant’s seventh collateral attack on the parties’ divorce decree, which was issued in 2011. The divorce complaint was initially filed in April of 2003.
-3- J-A16007-18
Id. It is apparent that the Winpenny decision supports the trial court’s prior
imposition of attorney’s fees in the instant case.
Although the case of Bolick v. Commonwealth, 69 A.3d 1267 (Pa.
Super. 2013), is not a family law case, the actions suggested by this Court
based upon the Supreme Court’s comment to Rule 233.1 are persuasive.
Specifically, the Bolick opinion directs:
We believe that Rule 233.1 makes clear that the power to bar frivolous litigation at the trial court level rests with the trial court. Should [the] [a]ppellant again present any filing in this matter to the trial court, the [appellee] may choose to file a motion with the trial court to dismiss the action and bar future litigation on the matter pursuant to Rule 233.1. The trial court will then have the discretion to bar future litigation, if it so chooses.
Id. at 1270. We likewise suggest that the same procedure can be applied in
the future to this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/17/18
-4- Circulated 08/23/2018 09:04 AM
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PA FAMILY DIVISION
RICHARD D. MICKMAN NO. 2003-06252
ELAINE MICKMAN
OPINION
COONAHAN, J. June 14, 2017
On June 1, 2016, the Defendant filed a Petition to Open/Vacate Divorce
Decree Based on "Newly" Discovered Evidence, Pursuant to 23 PA C.S.A. 3332 for
Extrinsic Fraud. In her petition, the Defendant alleged that the parties June 21,
2011 Divorce Decree and the June 29, 2011 Amended Divorce Decree "should be
opened/vacated due to extrinsic fraud, intentionally placed upon the Court by
Plaintiff." In support of her petition to open/vacate the divorce decree, the
Defendant alleged that the documentation attached to her petition was "New"
documentation and indicated that Plaintiff placed extrinsic fraud upon the court by
using third parties to conceal his business ownership as his "planning for the
divorce trial."
Defendant alleged that during the parties divorce trial, Plaintiff presented a
Consulting Agreement to the Court that indicated that he transferred his business
ownership in Telemerica, LLC. to his cousin Barry Galman for no monetary
consideration. Defendant now alleged that Plaintiff continued to receive the benefits
of his interest in those companies while they were placed in his cousin, Barry Galman's name, and, that allegedly Plaintiff had the companies transferred back
into his name at the conclusion of the parties divorce proceeding. Furthermore,
Defendant alleged that none of the income from Telemerica, LLC was included in
the party's marital assets for the purposes of equitable distribution. In support of
the allegations in her petition, Defendant attached Exhibit "A'' to her petition, an
alleged copy of the January 1, 2009 Consulting Agreement between Plaintiff and his
cousin Barry Galman. The Consulting Agreement stated that as of January 1, 2009,
all of Plaintiff's interest in his company Telernerica, LLC. was to be put in the name
of Plaintiff's cousin, Barry Galman. Additionally, Defendant attached Exhibit "B" to
her petition, an alleged copy of a June, 2014 IRS Quarterly Tax Return for
Telemerica, LLC, addressed to Plaintiff, and not to Plaintiff's cousin Barry Galman.
Defendant further alleged that Plaintiff's 2011 through 2013 Bank of America
statements indicated that Plaintiff owned two companies, Payment Direct and
Telemerica, LLC., although Plaintiff stated that he transferred the companies to his
Cousin Barry Galman as of January 1, 2009. Defendant did not submit any
documentation from Bank of America to support her allegations.
In her June 1, 2016 petition, the Defendant requested the Court schedule a
protracted hearinq to open/vacate the Divorce Decree on the grounds of extrinsic
fraud in order to accept new evidence, facts, and testimony for proper distribution
of the party's marital assets.
On June 6, 2016, Counsel for Plaintiff, Jack A. Rounick, Esquire filed a Motion
to Dismiss Defendant's 6/1/2016 Petition to Open/Vacate Divorce Decree. In his
petition, Mr. Rounick requested that the Court dismiss Defendant's petition for the
following reasons: 1. Petitioner continues to file petitions to open the divorce decree
2 with allegations that have already been determined by the Court. 2. Mr. Rounick
attached to his Motion as Exhibit "A", a Telemerica, LLC. valuation report dated
January 29, 2010 from an expert retained by Defendant and her former counsel
which was presented to the Court during the equitable distribution hearings in
2010. Mr. Rounick stated that a final determination on this issue had previously
been considered by the Court in in the parties 2010 equitable distribution hearing
and 2011 Divorce Decree. 1
On June 13, 2016, Defendant filed an Answer and Objection to Plaintiff's
June 6, 2016 Motion to Dismiss Motion to Open/Vacate Divorce Decree. In this
Answer, Defendant reasserted her allegation that her motion contained "New"
evidence and that a protracted hearing on the matter must be scheduled before the
Court.
On December 22, 2016, Defendant filed a Petition to Reinstate Alimony.
Defendant alleged that the alimony should be reinstated based upon the alleged
erroneous decision of the trial court and appellate decision that were based upon,
and relied upon, Defendant's later-discovered "fraud placed upon the Court."
Defendant alleged in her Petition that when her divorce trial concluded in 2010, it
was determined that Plaintiff was earning between three to eight times more
money than he disclosed at the parties 2003 support hearing. Defendant alleged
that her 2003 Alimony Pendente Lite award was based on Plaintiff's 2003 income
and that Pfaintiff failed to report his substantial increase of income to the
Montgomery County Domestic Relations Office and to the Defendant within seven
I Exhibit "A" of Plaintiff's Motion was the January 29, 2010 valuation from Pritchard, Bieler, Gruver & Willison, P.C., a Certified Public Accountants and Business Consultant's group, Plaintiff's interest in Telemerica, LLC as of December 31, 2008 showed that Plaintiff was a 50% member of Telemerica. The valuation report was prepared for Defendant and her counsel at that time Charles J. Meyer, Esquire.
3 (7) days of the change in income. Defendant alleged that Plaintiff's failure to report
the change in income was a violation of Title 23 Section 4353 and Pa.R.C.P
1910.17. Defendant further alleged that due to her nearly thirty (30) years
marriage to Plaintiff, and her time spent as a homemaker and Mother to the
couple's five (5) children, she should have been awarded life time alimony.
Defendant alleged in the petition that she is presently left without any
resources, income, or assets, and is medically approved by social security due to an
alleged permanent disability. Defendant alleged that the Court abused its
discretion by ignoring the fact that the Plaintiff allegedly schemed in the divorce
proceeding. to avoid disclosing his ownership of Telemerica, .LLC. Defendant alleged
that subsequent documents proved that the transfer of ownership of Telemerica,
LLC from Plaintiff to his cousin Barry Gal man was only temporary and that
ownership in the company was eventually transferred back to the Plaintiff at the
conclusion of equitable distribution and after the issuance of a divorce decree.
In her December 22, 2016 petition, Defendant requested that the Court
reinstate her alimony, find Plaintiff guilty of Fraud, and issue a broad discovery
order seeking detailed disclosure of all sources of Plaintiff's income and resources.
The Court has noted that to date, Defendant has not provided proof of her
enrollment in Social Security Disability, nor, of her Indigent status.
On January 5, 2017, Counsel for Plaintiff, Jack A. Rounick, Esquire filed a
Motion to utsmrss Defendant's Petition to Reinstate Alimony. In his petition, Mr.
Rounick stated that Defendant's petition to reinstate alimony was previously
disposed of by decision of the Honorable Arthur J. Tilson on July 29, 2011, and,
therefore, there is no pending matter to which the Court could proceed. Mr. Rounick
4 further argued that the Montgomery County Domestic Relations Office has no
jurisdiction over alimony post-divorce, and, further, any claim or attempt to set
aside the decision is barred by the statute of limitations at 23 Pa. C.S.A. § 3332.
23. Pa. C.S.A. § 3332.23 states that to open a divorce decree based upon intrinsic
evidence, the motion must be filed within thirty (30) days, or within five (5) years
for extrinsic fraud. Mr. Rounick stated that the nature of Plaintiff's claim is one of
intrinsic fraud, and, therefore, she is time barred from asserting her claim because
more than thirty ( 30) days have elapsed.
On March 20, 2017, the Court, without a hearing, issued the following Order:
ORDER
AND NOW, this 20th day of March, 2017, and upon consideration of Defendant's May 27, 2016 Motion to Stay May 5, 2016 Order For June 1, 2016 Hearing Pending Appeal (Seq. # 1226), Defendant's June 1, 2016 Petition to Open/Vacate Divorce Decree Based On "Newly" Discovered Evidence, Pursuant to 23 PA C.S.A. 3332 for Extrinsic Fraud (Seq.# 1233), Plaintiff's June 6, 2016 Motion to Dismiss 6/1/2016 Petition to Open/Vacate Divorce Decree (Seq. # 1242), Defendant's December 22, 2016 Petition to Reinstate Alimony (Seq. # 1312), Plaintiff's January 5, 2017 Motion to Dismiss Petition to Reinstate Alimony (Seq. # 1316) the Court makes the following findings and order.
The Court hereby ORDERS and DECREES as follows:
Defendant's May, 27, 2016 Motion to Stay May 5, 2016 Order for June 1, 2016 Hearing Pending Appeal (Seq. # 1226) is DENIED. The Court has previously ruled on Defendant's motions for Informa Pauperis and Recusal of presiding Judge. 2
Defendant's June 1, 2016 Petition to Open/Vacate Divorce Decree Based On "Newly" Discovered Evidence, Pursuant to 23 PA C.S.A. 3332 for Extrinsic Fraud {Seq.# 1233) is DENIED. Plaintiff's June 6, 2016
2 Defendant's May 27, 2016 Motion to Stay May 5, 2016 Order for June 1, 2016 Hearing Pending Appeal Seqlf 1226} was ruled on by the Court in its March 20, 2017 order, however, Defendant did not raise any issues related to this order in her 192S(b) Concise Statement. Therefore, this issue is waived by Defendant pursuant to Pa.R.C.P. 192S(b)(3)(iv).
5 Motion to Dismiss 6/1/2016 Petition to Open/Vacate Divorce Decree (Seq. If 1242) is GRANTED. Defendant and her former counsel retained an expert in 2010 to value Plaintiff's interest in Telemerica, LLC. The expert issued a valuation report on January 29, 2010. This report was presented to the Court during the equitable distribution hearings in 2010.
Defendant's December 22, 2016 Petition to Reinstate Alimony (Seq.# 1312) is DENIED. Plaintiff's January 5, 2017 Motion to Dismiss Petition to Modify Alimony (Seq. # 1316) is GRANTED. The matter was previously disposed of by the Honorable Arthur Tilson on July 29, 2011. Furthermore, 23 Pa. C.S.A. § 3332 states that when new evidence is discovered a motion to open the decree must be filed within thirty (30) days, or for extrinsic fraud within five (5) years. Defendant is barred by the statute of limitations which has expired for the Defendant's petition. BY THE COURT:
!SI PATRICIA E. COONAHAN, J,
On March 30, 2017, the Defendant filed a Motion for Reconsideration of the
Court's March 20, 2017 Order Dismissing June 1, 2016 Petition to Open/Vacate
· Divorce for Extrinsic Fraud Without a Due Process Hearing. On April 3, 2017, the
Court issued an Order denying Defendant's March 30, 2017 Motion for
Reconsideration of the March 20, 2017 order. On March 31, 2017, Plaintiff filed a
Motion to Dismiss Defendant's Motion for Reconsideration of March 20, 2017 Order,
In his Motion to Dismiss, Counsel for Plaintiff, Jack A. Rounick Esquire, stated that
the allegations set forth by Defendant, even if true, would be intrinsic fraud and not
extrinsic fraud, and, therefore, the statute of limitations had already expired on this
matter. Plaintiff stated that the Defendant constantly confuses intrinsic fraud and its
thirty (30) days statute of limitations with extrinsic fraud and Its five (5) years
statute of limitations.
6 On April 18, 2017, the Defendant filed a Petition and Affidavit for Leave to
Proceed In Forma Pauperis. This petition was subsequently denied by the Court on
April 19, 2017 due to insufficient proof of indigent status.
On April 18, 2017, the Defendant filed a Notice of Appeal of this Court's
March 20, 2017 order with the Pennsylvania Superior Court. On May 1, 2017, the
Court ordered the Defendant to file with this Court a concise statement of the
errors complained of on appeal pursuant to Pa. R.A.P.1925(b). On May 1, 2017, the
Defendant paid her filing fee of $51. 25, and, thereby, perfected her appeal to the
Pennsylvania Superior Court.
On May 2 2, 2017, Defendant filed a Concise Statement which stated the
following:
1. "The court erred and abused its discretion by procedurally and substantively denying a due process hearing to present evidence, testimony, and witnesses for a "timely'' filed Petition to Open/Vacate a Divorce Order for Extrinsic Fraud with attached "Newly" discovered prime facie material evidence co)lateral to the divorce, thereby denying and dismissing the petition without a meaningful right to be heard, further, denying a Reconsideration Motion which pointed out "clear error of fact or law" and relying oh the original divorce trial determination which was based on extrinsic fraud placed upon the court." 2. "The Court erred and abused its discretion by denying Appellant a hearing and dismissing the Petition to Re-Instate Alimony in connection with the "timely" filed Petition to Open/Vacate the Divorce order for later discovered Extrinsic Fraud.''
This opinion is filed pursuant to and is in compliance with Pa. R.A.P. 1925 (a).
The Court addresses the Defendant's issues as follows:
1. "The court erred and abused its discretion by procedurally and substantively denying a due process hearing to present evidence, testimony, and witnesses for a "timely" filed Petition to Open/Vacate a Divorce Order for Extrinsic Fraud with attached "Newly" discovered prima facie material evidence collateral to the divorce, thereby denying and dismissing the petition without a meaningful right to be heard, further, denying a Reconsideration
7 Motion which pointed out "dear error of fact or law" and relying on the original divorce trial determination which was based on extrinsic fraud placed upon the court."
Where there has previously been rendered a final judgment on the merits by
a court of competent jurisdiction, the doctrine of res judicata will bar any future suit
on the same cause of action between the same parties. Chada v. Chada, 756 A. 2d
39, 2000 PA Super 186; Matternas v. Stehman, 434 Pa. Super. 255, 642 A. 2d
1120 ( 1994 ). Invocation of the doctrine of res judicata requires that both the
former and letter suits possess the following common elements: identity in the
thing sued upon; identity in the cause of action; identity of persons and parties to
the action; and identity of the capacity of the parties suing or being sued. Banker v.
Valley Forge Insurance Co., 401 Pa. Super. 367, 585 A. 2d 504 (1991).
Furthermore, the doctrine of collateral estoppel operates to preclude a
question of law or issue of fact which has once been litigated in a court of
competent jurisdiction from being re-litigated in subsequent proceedings, and there
is no requirement that there be identity of parties in the two actions in order to
invoke the bar. & Technical res judicata, often referred to as claim preclusion, requires that "when a final judgment on the merits exists, a future suit between the
parties on the same cause of action is precluded." Henion v. Worker's
Compensation Appeal Board, 776 A. 2d 362, (Pa. Cmwlth. 2001). Res judicata may
be applied to bar "claims that were actually litigated as well as those matters that
should have been litigated." Id.
First, and overall, the Court points out that the Equitable Distribution order of
the Honorable Arthur J. Tilson, filed on June 21, 2011, and amended on June 29,
2011, was affirmed by the Pennsylvania Superior Court on October 18, 2012. The
8 Court notes that the docket in this case reveals that Defendant has since filed
numerous petitions to re-open the divorce decree based upon fraud. An example of
the previous attempts to re-open the divorce decree was set forth in Defendant's
June 25, 2014 pro se Emergency Motion to Re-Open Divorce Decree. In that
motion, the Defendant alleged that Plaintiff engaged, "in a scheme to deceive and
hide assets from the court" during the parties 2011 divorce trial. Defendant went on
to further discuss, "Plaintiff's deliberate concealment of his business ownership, its
value and its income constitutes extrinsic fraud." In that petition, Defendant alleged
that Plaintiff had committed fraud in regard to his business ownership in "Payment
Direct, Inc." and "Beacon Financial, Inc." On July 7, 2014-and July 11, 2014,
Defendant, through her counsel at that time, Shannon K. McDonald, Esquire, filed
an amended petition to re-open the divorce decree, alleging the same facts as
Defendant's June 25, 2014 pro se petition. On November 17, 2014, the Court
heard argument on Defendant's July 7, 2014 and July 11, 2014 amended petitions.
The Defendant was represented by Ms. McDonald at both hearings. On January 12,
2015, the Court denied Defendant's petitions to open/vacate the divorce decree.
Neither Defendant nor her counsel Ms. McDonald filed an appeal of the Court's
January 12, 2015 order. Instead, Ms. McDonald filed "Post-Trial Motions on1'
January 21, 2015 which, inter alia, requested that the Court review "the decisions
in the (January 12, 2015] order and overturn itself." January 21, 2015 Post-Trial
Motions, paragraph 6. On March 9, 2015, the Court issued an order scheduling
Defendant's post-trial motions for a hearing on March 31, 2015. Neither Ms.
McDonald nor the Defendant appeared at the March 31, 2015 hearing despite
receiving proper notice of the hearing from the Court. Since no excuse or reason
9 was provided to the Court, either before or alter the March 31, 2015 hearing as to
their absences, the Court dismissed Defendant's post-trial motions. On March 31,
2015, the Defendant filed a Notice of Appeal to the Superior Court of Pennsylvania,
appealing the Court's March 31, 2015 order. The appeal was quashed on August 14,
2015.
The docket in this case also shows that on July 10, 2015 Defendant flied a
prose New Petition to Open/Vacate Divorce Decree Pursuant to 23 Pa. C.S.A. 3332
for Extrinsic Fraud. In that petition, Defendant again alleged that Plaintiff
deliberately concealed certain business ownerships from her at the time of the
divorce and equitable distribution hearings. Identical to the Defendant's June 25,
2014, July 7, 20141 and July 11, 2014 petitions, Defendant's July 10, 2015 petition
again identified "Payment Direct, Inc.11 and Beacon Financial Inc." as the sources of
the alleged fraud. On October 8, 2015, the Court held a hearing on Defendant's July
10, 2015 petition. Following the hearing on October 81 20151 the Court denied
Defendant1s July 10, 2015 petition. Defendant filed a Notice of Appeal to the
Superior Court of Pennsylvania of the October 8, 2015 order, but Defendant's in
forma pauperis petition was denied, and the filing fees were not paid by the
Defendant. Therefore, Defendant did not perfect her appeal and the Court's October
8, 2015 order remains final.
23 Pa. C.S.A. § 3332 states "Intrinsic fraud relates to a matter adjudicated
by the judgment, including perjury and false testimony." The statute defines
extrinsic fraud as extrinsic fraud relates to matters collateral to the judgment which
have the consequence of precluding a fair hearing or presentation of one side of the
case. Where intrinsic fraud attacking the validity of a decree is alleged, a motion to
10 open the decree must be filed within thirty (30) days after the entry of the decree.
Hassick v. Hassick, 695 A. 2d 8512, Pa. Super. 1997). The statute of limitations in
which to open or vacate a divorce decree based upon extrinsic fraud is five ( 5)
years. lit. Here, Defendant was issued a divorce decree by Judge Tilson on June
21, 2011 which was amended on June 29, 2011 for the purposes of c?rrecting a
typographical error. Defendant filed her petition to open/vacate the divorce decree
on June 1, 2016, well beyond the thirty (30) days intrinsic fraud statute of
limitations. While Defendant was within the five (5) years statute of limitations for
extrinsic fraud, the nature of the fraud alleged is, pursuant to 23 Pa. C.S.A. §
3332, intrinsic in nature and not extrinsic. ·
In January, 2010, the Defendant and Charles J. Meyer, Esquire, her attorney
at that time, hired Pritchard, Bieler, Gruver & Willison, P.C. as an expert witness for
the purposes of valuing Plaintiff's ownership interest In Telemerica, LLC. At that
time, Dennis I<. Bieler, of the above Certified Public Accounting firm, by letter of
January 29, 2010 to Defendant and her attorney, stated that Plaintiff's interest in
Telemerica, LLC was 50% as of December 31, 2008. The parties engaged in
equitable distribution hearings in 2010 and were issued a divorce in June, 2011.
Plaintiff is time barred from asserting a fraud claim against Plaintiff when she
waited until 2016 to present evidence of alleged fraud committed by Plaintiff.
Furthermore, in his November 16, 2011 Opinion, The Honorable Arthur J.
Tilson explained his decision to divide the parties' marital estate 70% to Plaintiff
and 30% to Defendant. Judge Tilson stated in his opinion "The evidence reveals
that Mother's behavior during the course of this litigation has been completely
obstreperous and calculated to adversely impact Mr. Mickman's finances and the
11 value of the marital estate as a whole. The overwhelming evidence reveals that
Mother has worked diligently to subvert Father's economic endeavors, at great cost
to all of the Mickmans. Mother has filed numerous law suits in multiple jurisdictions
as a means of depleting Mr. Mickman's (Father's) available economic resources."
(November 16, 2011 Opinion of J. Tilson at 12).3 As detailed above, Defendant is a
habitual and serial filer of fraud petitions in an attempt to re-open her divorce
decree". Defendant uses the same basic language and merely alters the facts in an
attempt to re-litigate the issue over and over again.
Finally, Defendant alleged in her 1925 (b) Concise Statement that the Court
erred in denying her March 30, 2017 Motion for Reconsideration of the March 20,
2017 Order Dismissing June 1, 2016 Petition to Open/Vacate Divorce for Extrinsic
Fraud Without a Due Process Hearing. However, under Pennsylvania case law, a
Motion for Reconsideration is not reviewable on appeal. Bowden v. Tompkins, 306
Pa. Super. 494,495 (1982). Defendant is appealing from the March 20, 2017 order
and cannot appeal the Court's March 30, 2017 denial of reconsideration.
Defendant is collaterally estopped from continually re-litigating the same
issues, her claims of extrinsic fraud and her right to a "due process hearing."
Defendant continuously filed petitions that raise allegations of fraud in the parties'
June 21, 2011 and June 29, 2011 equitable distribution and divorce decree.
Furthermore, Defendant continuously alleges in her petitions that she has
3 Judge Tilson's June 21, 2011 divorce decree and equitable distribution order and his June 29, 2011 amended divorce decree and equitable distribution order was affirmed on appeal by the Pennsylvania Superior Court on October 18, 2012. 4 While Pa.R.C.P. 231 pertaining to frivolous litigation had historically declined to extend the provisions of thls rule to family law actions, the Pennsylvania Superior Court has refused to hear further Q£Q se appeals by former wire in a divorce partition matter, where former wife had repeatedly raised previously litigated issues. See Winpenny Ill v. Winpenny, 775 A. 2d 815 (2001). "The issues raised by appellant herein are nothing more than recycled claims which previously were addressed by the courts of this Commonwealth over the span of more than two decades." Id.
12 uncovered "new" documentation, however, Defendant's "new" documentation is
either repetitive of prior information, or is not persuasive or relevant to her claims
that Plaintiff, "intentionally placed fraud upon the court." Defendant was afforded a
full and fair equitable distribution hearing in 2011. Defendant previously litigated
the issue of her allegations of extrinsic fraud committed by Plaintiff in relation to
opening or vacating the divorced decree on several prior occasions before this
Court. This Court has dismissed Defendant's prior allegations of extrinsic fraud.
Furthermore, Defendant either did not file and/or perfect an appeal of the Court's
prior decisions on the issue of extrinsic fraud. Defendant's claim as raised in
paragraph one ( 1) of her Concise Statement is without merit and contrary to the
doctrine of res judicata. Defendant is collaterally estopped from re-litigating the
same issue which has been finally determined by the Court in this matter, and her
claim as stated above should, therefore, be dismissed.
2. The Court erred and abused its discretion by denying Appellant a hearing and dismissing the Petition to Re-Instate Alimony in connection with the "timely'' filed Petition to Open/Vacate the Divorce order for later discovered Extrinsic Fraud.
Alimony is provided for under 23 Pa.C.S.A. §3102, 3103, and 3104 when
there is a determination and disposition of property rights and interests between
spouses in conjunction with any decree granting divorce or annulment.
Here, as discussed supra, Defendant's allegations that Plaintiff transferred his
ownership interest in Telemerica, LLC to his cousin Barry Galman in January, 2009,
and then transferred it back to himself alter the parties divorce decree was issued,
does not constitute extrinsic fraud as alleged by the Defendant. Therefore, due to
her untimely filed Petition to Open/Vacate the Divorce Decree Order for Later
Extrinsic Fraud (discussed supra), the Defendant's claim to reinstate her alimony
13 arising out of an extrinsic fraud claim fails. Additionally, a review of the docket in
this case illustrates that the Judge Tilson's June 21, 2011 divorce decree and
equitable distribution award and the June 29, 2011 amended divorce decree and
equitable distribution award, granted Defendant alimony pendente lite and not
alimony. Defendant received alimony pendente lite through the appeal of the 2011
divorce decree and equitable distribution award issued by Judge Tilson. Defendant
confuses or conflates alimony gendente lite with alimony as well as the concepts of
extrinsic and intrinsic fraud, while ignoring the contents of Judge Tilson's 2011
divorce decree and equitable distribution award which did not grant Defendant
alimony. As discussed above, Judge Tilson's 2011 divorce decree was affirmed on
appeal to the Superior Court of Pennsylvania on October 18, 2012. Petition for
Reargument was denied on December 27, 2012 by the Superior Court of
Pennsylvania on the issue of alimony, and alimony was specifically addressed by
the Superior Court of Pennsylvania pp. 33-38 of its memorandum opinion. The
Supreme Court of Pennsylvania denied allowance of appeal on this issue on
September 24, 2013. The alimony issue is finally litigated, is res judicata and/or is
also untimely.
Defendant's claim as raised in paragraph two (2) of her 1925(b) Concise
Statement is without merit, is not supported by the facts in this matter, and should,
therefore, be dismissed.
The Court did not err or abuse its discretion in the March 20, 2017 order. For
the above reasons, the Court respectfully requests that Defendant's appeal be
14 2
dismissed and the March 20, 2017 order be affirmed.
BY THE COURT: ,,·""'
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.r: Copies mailed on 6/ h /17 to the following: By First-Class Mail:
Jack A. Rounick, Esquire /�la·i�ei. Mickman, proj fl 1 ,, , e s1619 Gerson Drive, Narberth, PA 19072 •'\... ,. 7A-·L.1t[t..J,,·C':/)./� I 1• lC:l.1--n:i.{J Sec�ij.ary ,.