In Re: W.E., Appeal of: W.E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: WILLIAM EINLOTH PRIVATE : IN THE SUPERIOR COURT OF
CRIMINAL COMPLAINT : PENNSYLVANIA
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APPEAL OF: WILLIAM EINLOTH :
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: No. 533 WDA 2020
Appeal from the Order Entered March 9, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): MD-218-2020
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 18, 2020
Appellant, William Einloth, appeals pro se from the order entered on
March 9, 2020. We affirm.
The trial court ably summarized some of the underlying facts of this
case:
On March 4, 2020, [Appellant filed a petition under
Pennsylvania Rule of Criminal Procedure 506(B)(2),1
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* Retired Senior Judge assigned to the Superior Court.
1 Rule 506, entitled “Approval of Private Complaints,” declares:
(A) When the affiant is not a law enforcement officer, the
complaint shall be submitted to an attorney for the
Commonwealth, who shall approve or disapprove it without
unreasonable delay.
(B) If the attorney for the Commonwealth:
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requesting that the trial court] review the decision of the
Washington County District Attorney[] . . . to deny his private
criminal complaint. The request is an outgrowth of Evano
Lenzi’s estate that was probated in Washington County at
docket number OC-2017-192.
Mr. Lenzi passed away on January 30, 2017. Michael Bingey,
Mr. Lenzi’s nephew, filed a petition for letters of
administration on February 15, 2017. Nieces Marilyn Cornish
and Marianne [DiGorio] signed letters renouncing and
requested that Mr. Bingey administer the estate. On March
19, 2019, Judge Michael Lucas issued an order approving the
settlement of the estate. In [the] order, [Judge Lucas
declared] that “all issues and claims pending before the court
regarding this estate are hereby dismissed with prejudice.”
Further, on October 29, 2019, Judge John DiSalle issued a
final distribution decree.
Trial Court Opinion, 3/9/20, at 1-2 (some capitalization and corrections
omitted).
Within Appellant’s first private criminal complaint, Appellant accused
Washington Financial Bank (hereinafter “the Bank”) of committing perjury.
The charge related to the Bank’s search of Mr. Lenzi’s safe deposit box, in its
attempt to discover whether Mr. Lenzi possessed a will. Appellant alleged:
Perjury – by filing [Pennsylvania Department of Revenue
Form] REV-487, Entry into Safe Deposit Box to Remove a Will
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(1) approves the complaint, the attorney shall indicate
this decision on the complaint form and transmit it to the
issuing authority;
(2) disapproves the complaint, the attorney shall state
the reasons on the complaint form and return it to the
affiant. Thereafter, the affiant may petition the court of
common pleas for review of the decision.
Pa.R.Crim.P. 506.
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or Cemetery Deed and record of entry into the safe deposit
box (locally produced) dated 2/7/17. On 6/21/18 the
executor’s attorney, Jeffrey Lochner furnished me with a copy
of the REV-485 in [lieu] of 487 that I had requested. On
7/11/19 he indicated that he was unaware if the bank gave
Mike a copy of the form/record or not. The next day, Mr.
Lochner informed me that he will check with Harrisburg (Dept
of Revenue) to see if the 487 form was filed in this case. Title
61 chapter 93 inheritance Tax Division outlines the
requirements of a will search. [Issues] with REV-487 and
record of will search furnished by the bank are:
a. The date was omitted on the form REV-487, but
stamped by the Register of Wills.
b. The signatures of Michael J. Bingey (estate
administrator) and Marianne Digorio (sister) are of poor
quality and seem to be copied from another source.
c. The printing of the bank’s witness does not resemble
the comment “no will was in box”.
d. The bank didn’t provide a copy of the record to (b)
upon completion of the will search.
Appellant’s First Private Criminal Complaint, dated 12/10/19, at 2.
Appellant requested that the Commonwealth approve his complaint and
charge the Bank with perjury. See id. Further, Appellant requested that:
“criminal laboratory services verify the documents. Hand writing experts need
the original and samples that are questioned vs known plus requested vs non-
requested to carry out the analysis. It will be impossible for me to obtain the
required documents.” Id.
The Commonwealth disapproved the first complaint for the stated
reasons that the complaint “lacks prosecutorial merit” and there exists an
“adequate civil remedy.” See id.
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On March 9, 2020, Appellant filed, with the court of common pleas, a
petition to review the Commonwealth’s decision disapproving his first private
criminal complaint. See Appellant’s First Petition, 3/9/20, at 1-2. The trial
court denied Appellant’s petition on March 9, 2020 and Appellant filed a timely
notice of appeal.2, 3 Appellant raises one claim to this Court:
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2 On March 16, 2020, the Pennsylvania Supreme Court declared a general,
statewide judicial emergency because of the coronavirus that causes COVID-
19. In re: General Statewide Judicial Emergency, 228 A.3d 1281 (Pa.
3/16/20) (per curiam). In its subsequent orders, the Supreme Court
expanded the scope and extended the length of the judicial emergency.
Further, as is relevant to the case at bar, the Supreme Court generally
suspended “all time calculations for purposes of time computation relevant to
court cases or other judicial business, as well as time deadlines.” See In re:
General Statewide Judicial Emergency, 228 A.3d 1283 (Pa. 3/18/20) (per
curiam). As to the general suspension of time calculations and deadlines, on
April 28, 2020, the Supreme Court ordered: “legal papers or pleadings (other
than commencement of actions where statutes of limitations may be in issue)
which are required to be filed between March 19, 2020, and May 8, 2020,
generally shall be deemed to have been filed timely if they are filed by close
of business on May 11, 2020.” In re: General Statewide Judicial
Emergency, ___ A.3d ___, 2020 WL 3263261 (Pa. 4/28/20) (per curiam)
(emphasis omitted).
The trial court denied Appellant’s petition on March 9, 2020. Thus, in the
absence of the general, statewide judicial emergency, Appellant’s notice of
appeal would have been due on or before April 8, 2020. See Pa.R.A.P. 903(a).
However, the Pennsylvania Supreme Court’s April 28, 2020 order extended
Appellant’s filing date to May 11, 2020; and, since Appellant filed his notice of
appeal on April 27, 2020, Appellant’s notice of appeal is timely.
3 The record reveals that Appellant filed a second private criminal complaint,
which named Michael Bingey as the defendant, and, after the disapproval of
the second private criminal complaint, Appellant filed a second petition in the
court of common pleas for review. The court of common pleas then apparently
assigned this second petition the same docket number as the first petition and
denied Appellant’s second petition on May 22, 2020. See Trial Court Order,
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Both private criminal complaints were not fully investigated
by the District Attorney Office of Washington County. The
court dismissed the non-compliance of Pennsylvania estate
laws and procedures that outline the forms to be used during
probate of an estate.
Appellant’s Brief at 7 (some capitalization omitted).4
In essence, Appellant claims that the trial court erroneously dismissed
his Rule 506 petition for review. This claim fails.
“A private criminal complainant is permitted to seek judicial review of
the denial of his or her complaint by the district attorney.” In re Private
Complaint of Adams, 764 A.2d 577, 579 (Pa. Super. 2000). “Where the
district attorney's denial is based [solely] on a legal evaluation of the evidence,
the trial court undertakes a de novo review of the matter.” Id. “[W]hen the
district attorney disapproves a private criminal complaint on wholly policy
considerations, or on a hybrid of legal and policy considerations, the trial
court's standard of review of the district attorney's decision is abuse of
discretion.” In re Wilson, 879 A.2d 199, 215 (Pa. Super. 2005). “This
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5/22/20, at 1-4. Regardless of the procedural irregularities in assigning the
second petition the same docket number as the first petition, any appeal from
the denial of Appellant’s second petition is not presently before this Court.
See Appellant’s Notice of Appeal, 4/27/20, at 1-4 (expressly appealing from
the denial of the first petition for review); Appellant’s Docketing Statement,
5/15/20, at 1-2 (same). Thus, we will not consider any claim in Appellant’s
brief that relates to the dismissal of his second petition, as those claims are
not properly before this Court.
4As explained above, any claim related to the dismissal of Appellant’s second
petition is not properly before this Court and will not be discussed in this
memorandum. See supra n.3.
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deferential standard recognizes the limitations on judicial power to interfere
with the district attorney's discretion in these kinds of decisions.” Id.
In this case, the district attorney disapproved Appellant’s private
criminal complaint because the complaint “lack[ed] prosecutorial merit” and
there existed an “adequate civil remedy.” Appellant’s First Private Criminal
Complaint, dated 12/10/19, at 2. Both stated reasons are policy
determinations. See Commonwealth v. Metzker, 658 A.2d 800, 801 (Pa.
Super. 1995) (holding: “[a] determination that the case lacks ‘prosecutorial
merit’” is a rejection on policy grounds); Commonwealth v. Michaliga, 947
A.2d 786, 791 (Pa. Super. 2008) (holding: a district attorney’s determination
that there is an “adequate civil remedy” “constitutes a policy-based reason for
disapproval of [the] charges”). Therefore, the trial court’s standard of review
of the district attorney’s decision was abuse of discretion and our review of
the trial court’s decision is for an abuse of discretion. In re Wilson, 879 A.2d
at 215.
We have explained that, where the “private criminal complainant has
the burden to prove the district attorney abused his discretion, [the] burden
is a heavy one.” Id.
In the Rule 506 petition for review, the private criminal
complainant must demonstrate the district attorney's
decision amounted to bad faith, fraud or unconstitutionality.
The complainant must do more than merely assert the district
attorney's decision is flawed in these regards. The
complainant must show the facts of the case lead only to the
conclusion that the district attorney's decision was patently
discriminatory, arbitrary or pretextual, and therefore not in
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the public interest. In the absence of such evidence, the trial
court cannot presume to supervise the district attorney's
exercise of prosecutorial discretion, and should leave the
district attorney's decision undisturbed.
Thereafter, the appellate court will review the trial court's
decision for an abuse of discretion, in keeping with settled
principles of appellate review of discretionary matters. See
Commonwealth v. Hunt, 858 A.2d 1234 (Pa. Super. 2004)
(en banc) (citing Commonwealth v. Jones, 826 A.2d 900,
907 (Pa. Super. 2003) (en banc)) (stating: “An abuse of
discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied or
the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will, as shown by the
evidence or the record, discretion is abused”).
The district attorney's decision not to prosecute a private
criminal complaint for reasons including policy matters
carries a presumption of good faith and soundness. The
complainant must create a record that demonstrates the
contrary. Thus, the appropriate scope of review in
policy-declination cases is limited to whether the trial court
misapprehended or misinterpreted the district attorney's
decision and/or, without legitimate basis in the record,
substituted its own judgment for that of the district attorney.
We will not disturb the trial court's decision unless the record
contains no reasonable grounds for the court's decision, or
the court relied on rules of law that were palpably wrong or
inapplicable. Otherwise, the trial court's decision must stand,
even if the appellate court would be inclined to decide the
case differently.
In re Wilson, 879 A.2d at 215 (some citations omitted).
Simply stated, within Appellant’s Rule 506 petition for review, Appellant
did not attempt to “demonstrate [that] the district attorney's decision
amounted to bad faith, fraud or unconstitutionality.” See id. Instead,
Appellant’s petition merely states:
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The undersigned [hereby] requests [] the Court of Common
Pleas of Washington County review the decision of the
Washington County District Attorney [] to disapprove the
private criminal complaint on 27 December 2019 and makes
the following averments.
1. Evano Lenzi passed away 30 January 2017, predeceased
by his wife Cecelia on November 22[,] 2016.
2. Michael Bingey and Marianne DiGorio searched the Lenzi’s
safe deposit box at Washington Financial Bank on 7 February
2017.
3. Petition for grant of letters (File No 63-17-0192) was filed
by Michael Bingey February 15[,] 2017 and granted by
Register of Wills.
4. First request to estate administrator’s lawyer to obtain will
search document(s) provided from Washington Financial
Bank resulted in attached letter dated June 21[,] 2018
indicating safe deposit box inventory is filed directly with the
PA Department of Revenue. Second attempt on July 11[,]
2019 via attached email, the attorney is not sure if the bank
provided a copy to administrator of estate.
5. A letter ruling request was sent to the Department of
Revenue Chief Counsel on 12 August 2019 to submit
documentation to record will search to Register of Wills office.
Their reply and the request are attached.
6. On 14 November 2019 a letter was sent to Washington
Financial Bank requesting will search documentation.
7. On 22 November 2019 Washington Financial Bank
provided Form REV-487 and locally produced
Acknowledgment to Enter Safe Deposit Box of Decedent
which was filed at the Register of Wills office on November
21[,] 2019.
Wherefore, the affiant requests this Honorable Court approve
the criminal complaint so that laboratory services can verify
the documents, especially the printed “no will was in box” to
that of the customer service witness.
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Appellant’s First Petition, 3/9/20, at 1-2 (some capitalization omitted).
Appellant’s petition contains no allegations of bad faith, fraud, or
unconstitutionality by the district attorney and the averments within the
petition cannot, in any sense, be interpreted to amount to bad faith, fraud, or
unconstitutionality on the district attorney’s part. Therefore, the trial court
did not abuse its discretion when it denied Appellant’s petition. See In re
Wilson, 879 A.2d at 215 (“[i]n the Rule 506 petition for review, the private
criminal complainant must demonstrate the district attorney's decision
amounted to bad faith, fraud or unconstitutionality. The complainant must do
more than merely assert the district attorney's decision is flawed in these
regards. The complainant must show the facts of the case lead only to the
conclusion that the district attorney's decision was patently discriminatory,
arbitrary or pretextual, and therefore not in the public interest. In the absence
of such evidence, the trial court cannot presume to supervise the district
attorney's exercise of prosecutorial discretion, and should leave the district
attorney's decision undisturbed”). Appellant’s claim on appeal thus fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2020
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