Kundratic, A. v. Kundratic, S.

J-A14022-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ANDREW KUNDRATIC, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. SOPHIA KUNDRATIC, Appellee No. 2057 MDA 2013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. -2- J-A14022-14 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. -3- J-A14022-14 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) -4- J-A14022-14 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. -5- J-A14022-14 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 -6- J-A14022-14 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. -7- J-A14022-14 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. -8- J-A14022-14 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 -9- J-A14022-14 3 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. - 10 -