Kundratic v. Luzerne Cnty. Dist. Attorney's Office

261 A.3d 563

Andrew KUNDRATIC, Appellant

v.LUZERNE COUNTY DISTRICT ATTORNEY'S OFFICE

No. 14 MDA 2021

Superior Court of Pennsylvania.

Filed September 7, 2021

Andrew Kundratic, appellant, pro se.

Geery Scott IV, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.^*

OPINION BY McCAFFERY, J.:

Andrew Kundratic (Appellant) appeals pro se from the order entered in the Luzerne County Court of Common Pleas, denying his petition for review of the Luzerne County District Attorney's Office's (the Commonwealth's) disapproval of his private criminal complaint. This complaint relates to Appellant's divorce litigation, which commenced in 2006 and concluded in 2011. The trial court found Appellant was improperly attempting to relitigate the divorce issues. We affirm.

Appellant sent a letter, dated May 1, 2020, and private criminal complaint to the Commonwealth, petitioning it to "refer [Appellant's] complaint to the proper authorities, being the PA Attorney Office and the FBI." Appellant's Private Criminal Complaint, 5/2/20, at 2. The named defendants were Appellant's ex-wife, Sophia Thomas (Thomas), and her husband, Gary Thomas, a retired Pennsylvania State Police Officer. We note Appellant and Thomas were married in 1992, and Appellant filed a divorce complaint in Luzerne County in 2006. Kundratic v. Kundratic , 501 MDA 2015 (unpub. memo. at 1), 2015 WL 8803707 (Pa. Super. Dec. 15, 2015). The trial court entered a divorce decree and equitable distribution order in 2011. Id. at 2. Appellant filed two appeals to this Court in the divorce matter, as well as multiple petitions to vacate the divorce decree on grounds that Thomas, counsel, and the master engaged in fraud and that Appellant's counsel was ineffective. See id. at 2-3 ; Kundratic v. Kundratic , 1888 MDA 2013 (unpub. memo.), 2014 WL 10896810 (Pa. Super. July 9, 2014), appeal denied , 555 MAL 2014, 104 A.3d 5 (Pa. Nov. 25, 2014).

Appellant's private criminal complaint averred his ex-wife and her husband committed criminal acts, including obstructing justice, theft by deception, and spoliation of court evidence, resulting in the embezzlement of Appellant's assets. These alleged criminal acts related to the divorce proceedings between Appellant and Thomas. In addition, Appellant maintained that the Hon. Tina Gartley, a currently sitting Luzerne County Court of Common Pleas Judge and previous attorney for Thomas during the divorce, took part in the alleged criminal conspiracy. Appellant contended the Commonwealth had a conflict of interest due to Judge Gartley currently sitting in Luzerne County and Gary Thomas being a retired Pennsylvania State Police Officer. Thus, Appellant demanded that the Commonwealth refer his complaint to the Pennsylvania Attorney General Office and the Federal Bureau of Investigation.

On August 10, 2020, the Commonwealth disapproved Appellant's private criminal complaint, explaining, "This is a civil matter regarding a property settlement. Inappropriate for criminal prosecution." Commonwealth's Letter, 8/10/20. On September 1st, Appellant filed the underlying pro se petition for review with the trial court. On September 15th, the trial court filed an order recusing all Luzerne County judges, and the Hon. Linda Wallach Miller, senior judge in Monroe County, was appointed to preside over this matter. Nevertheless, on October 13th, Appellant filed a motion for a change of venue, alleging he would be unable to receive a fair hearing in Luzerne County.

On November 30, 2020 the trial court denied Appellant's petition for review without a hearing, finding no abuse of discretion in the Commonwealth's decision to disapprove the private criminal complaint. Generally, the court found Appellant's claims were an improper "back-door" attempt to relitigate issues in his divorce proceedings, all of which "have been fully litigated to finality ad nauseum ." Trial Ct. Op., 11/30/20, at 5. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

Appellant presents the following issues for our review:

I. Whether the Luzerne County District Attorney's Office abused its authority and obstructed a criminal investigation in their action and decision process of the criminal complaint?

II. Whether the theft and fraudulent submittal of the Conrad's real estate appraisal of ... Appellant's by the opposing party during the initial divorce hearings, which the courts took as the values of the marital real estate, was real estate fraud, theft by deception, obstructing justice, criminal attorney misconduct, and other crimes which is not only criminal but would violate the first and initial Nov[ember] 10, 2009 divorce court order and all following civil court orders since all would be considered void?

III. Whether the opposing party committed mortgage fraud, crime of deception and other crimes when they submitted fraudulent pre-approved bank mortgage documents to the courts which the courts accepted as being valid and the courts then creating a Nov[ember] 10, 2009 divorce order giving Sophia Thomas ninety (90) days to refinance said mortgage which she never refinanced to this day because she was never qualified for a mortgage loan?

IV. Whether ... Appellant's own legal counsels were involved in the many criminal acts of collusion, case fixing and corruption with one specifically being a September 2006 real estate appraisal of the opposing party that was faxed to ... Appellant's counsel and then was purposely withheld from ... Appellant, along with many others deceitful, malicious willful, wantonly, with intent, advice given to Appellant during their time of representation including withholding witnesses?

V. Whether Sophia Thomas illegally, criminally and with malice cashed out ... Appellant's court awarded (Nov[ember] 10, 2009 ORDER) 401k and retirement accounts of hers in the first quarter of 2013 which were both state and federal crimes?

VI. Whether the last court ORDER dealing with the marital real estate, from April 14, 2016, stated for Sophia Thomas to refinance the property and for her attorney to put said proceeds along with the ‘signed’ deeds into an escrow account until further order of the court which the opposing party instead ignored the court order and criminally transferred the properties solely into Sophia Thomas's new marriage name on June 10, 2016?

VII. Whether assigned senior judge Harold Woelfel abused his judicial power, obstructed justice, and was a participant of the conspiracy, corruption, collusion, case fixing and other crimes?

VIII. Whether the courts abused their authority by ignoring and not addressing the fraud and criminal acts in the divorce action by using every mean available to wantonly, willfully, maliciously and by artifice conduct to protect themselves from prosecution, lawsuits and to protect the integrity of the court from the public finding how our judicial system can go awry without any accountability or oversight for their criminal actions?

Appellant's Brief 5-7.

We summarize together Appellant's eight issues. Preliminarily, he denies the divorce litigation has concluded, alleging there remain outstanding motions, and that Thomas has not complied with the "last" court order, which directed her "to put the proceeds from refinancing and the ‘signed’ deeds into an escrow account." Appellant's Brief at 11.

In his first issue, Appellant avers that in disapproving his private criminal complaint, the Commonwealth abused its authority, obstructed a criminal investigation, and acted in its own interest. Appellant claims the Commonwealth improperly "us[ed] a civil judgment" — the divorce decree — "as a tool to [avoid] any criminal prosecution." Appellant's Brief at 14. Appellant also maintains Judge Gartley (Thomas’ prior divorce attorney) and Gary Thomas (Thomas’ husband) had a "major conflict" of interest with the Commonwealth "because both have worked the majority of their careers directly and indirectly with the [Commonwealth] as a prosecutor and a PA State Police homicide detective." Id. Thus, Appellant avers, the Luzerne County courts should recuse from "any criminal case involving these two persons." Id. at 15-16.

In his second issue, Appellant asserts that Thomas, Gary Thomas, and Judge Gartley stole Appellant's legal documents in 2007 and withheld them until the conclusion of the divorce proceedings. Appellant's Brief at 17. Appellant alleges Thomas then submitted one of these stolen documents, a real estate appraisal, as a divorce exhibit "and then used deception as if [Appellant's] attorney had submitted the ... appraisal [sic]." Id. Appellant avers his own attorney also took part in the "collusion and case fixing." Id. In turn, "Appellant and the same counsel appealed for years the value of [the] appraisal being low-balled and not the true and correct values of the properties[.]" Id. at 18.

In his third issue, Appellant maintains that Thomas and Gary Thomas committed mortgage fraud. In support, he avers that a November 10, 2009, order directed Thomas to refinance a mortgage within 90 days, but she has "never refinanced to this day because she was never qualified for a mortgage loan." Appellant's Brief at 19. In addition, Appellant asserts that in 2010, he "told his counsel to do what is necessary since the ninety days for ... Thomas to refinance the marital mortgage had expired [sic]." Id. However, Appellant claims his counsel then lied by informing him "we can do nothing because I was appealing the divorce action/order." Id. Appellant avers, "As this divorce action is getting drawn out because of the case fixing and fraud," Thomas collected "thousands of dollars of spousal support monthly by fraud and deception." Id.

In his fourth issue, Appellant claims his attorney was involved in "collusion, case fixing, and corruption" during the divorce proceedings. Appellant's Brief at 20. According to Appellant, his attorney...