IN THE SUPREME COURT
OF PENNSYLVANIA
MIDDLE DISTRICT
_____________________________________
No. 250 M.D. Misc. Docket 1999
_____________________________________
O'DONNELL, WEISS & MATTEI, P.C.,
Respondent
vs.
John Allan Granger,
Petitioner
_____________________________________
APPLICATION FOR EXERCISE OF PLENARY
AND EXTRAORDINARY JURISDICTION
USING KING'S BENCH AND SUPERINTENDENCY POWERS
_____________________________________
Pennsylvania Superior Court Appeal
Pennsylvania Supreme Court Reconsideration
John Allan Granger
2820 Audubon Village Drive, Suite 339
Audubon, Pennsylvania 19403
(610) 287-2109
A. Introduction
Petitioner, John Allan Granger, files this Petition for Relief pursuant to Pa. R.A.P. 3309. In this petition, Petitioner asks this Honorable Court to exercise its extraordinary jurisdiction, or 42 Pa. C.S. 726, under the powers reserved by the First Sentence of Section 1 of the Schedule to the Judiciary Article of the Pennsylvania Constitution, which preserves the historical powers and jurisdiction of the Court, and under the Supreme Court's King's Bench and Superintendency Powers in a Constitutional sense, to hear the matters embodied in the Superior Court's Judgment and Memorandum based upon misrepresentations, 3686PHL98, captioned as O'Donnell, Weiss & Mattei, P.C. v. Granger.
Petitioner's rights were violated when, the final order by the Court of Common Pleas of October 15, 1999 in case # 97-06280 was made based upon an ex parte motion, and petitioner's rights were violated, because the October 4, 1999 order of the Superior Court, contains misrepresentations. And,
This Honorable Court will invoke its extraordinary jurisdiction, when the record clearly demonstrates violations of petitioner's rights, and it is of immediate public importance, to ensure that any violation of peoples rights will not be tolerated by this Honorable Court.
B. Procedural History
On October 18, 1996 in a letter (R. 4a) respondent entered into a contract with petitioner for"professional services".
On October 31, 1996 respondent wrote a letter confirming an oral agreement/contract with the Pennsylvania State Police et al. (R. 30a) for the return of petitioners three (3) tapes.
On November 12, 1996 petitioner verbally informed respondent of respondent's breach of respondent's contract with petitioner for professional services.
On November 15, 1996 (R. 9a) petitioner in writing informed respondent of respondent's breach of respondent's contract with petitioner for professional services.
On November 25, 1996 (R. 10a) petitioner in writing informed respondent of respondent's breach of respondent's contract with petitioner for professional services.
On November 27, 1996 respondent wrote a letter to petitioner confirming the oral agreement/contract with the Pennsylvania State Police (R. 18a) for the return of petitioners three (3) tapes was not upheld.
On February 7, 1997 (R. 12a) petitioner in writing informed respondent of respondent's breach of respondent's contract with petitioner for professional services.
On April 2, 1997 respondent filed a Complaint (R. 1 - 4a) invoking the law side of the lower courtsjurisdiction.
On April 22, 1997 petitioner filed an answer and counterclaim (R. 5a-19a) for a breach of contract by respondent.
On April 29, 1997 respondent filed an answer to petitioner's counterclaim against respondent.
On August 25, 1997 respondent moved at a Montgomery County local rule 212(k)(4) conference to force petitioner into compulsory arbitration. The Honorable Paul W. Tressler of Common Pleas of Montgomery County, Pennsylvania ordered petitioner to compulsory arbitration because petitioner refused to place a value on the case and stated that "Only a jury in a 'trial by jury' can determine the value of the case."
On April 2, 1998 David M. MacFarlan, Chairman, David P. Brown III and Andrew L. Miller bar certified attorneys, members of the Montgomery County Bar Association, arbitrators for the Court of Common Pleas of Montgomery County, Pennsylvania freely, willfully knowing and expecting that they would be paid $100 each for their services signed a Constitutional (Pennsylvania and United States) Oath of Office (R. 20a). The arbitrators found (R. 20a) for Plaintiff, respondent, on the complaint and against Defendant, petitioner, on petitioner's counterclaim.
On April 30, 1998 petitioner filed a Notice of Appeal from Award of Board of Arbitrators (R. 21a).
On August 18, 1998 petitioner filed a Mandatory Judicial Notice (R. 22 - 34a).
On August 21, 1998 at the pre-trial conference the Honorable Lawrence A. Brown of the Court of Common Pleas of Montgomery County, Pennsylvania indicated that the Honorable Lawrence A. Brown would schedule the case for trial.
On August 28, 1998 respondent without the knowledge of petitioner or communication with petitioner filed a Praecipe to Settle, Discontinue and End (R. 35a).
On September 10, 1998 petitioner filed a Motion to Proceed with Counterclaim (R. 36a).
On September 15, 1998 petitioner filed a Motion for More Clear and Definite Statement (R. 37).
On October 2, 1998 respondent without the knowledge of petitioner or communication with petitioner filed a Praecipe to Discontinue (R. 38a) respondent's already discontinued complaint.
On October 15, 1998:
1.The Honorable Albert R. Subers, Jr. called petitioner's counterclaim for trial. The Honorable Albert R. Subers, Jr. made the judicial decision (Tr. 2) that the Court Of Common Pleas Of Montgomery County, Pennsylvania had no jurisdiction.
2.At trial Attorney David A. Megay threw petitioner's Holy Bible into the air frompetitioner's table in the Courtroom (R. 40a).
3.At trial the Honorable Albert R. Subers, Jr. of the Court of Common Pleas of Montgomery County, Pennsylvania called for a jury for a 'trial by jury'(Tr. 3; R. 49a).
4.At trial the Honorable Albert R. Subers, Jr. of the Court of Common Pleas of Montgomery County, Pennsylvania dismissed petitioner's counterclaim for breach of contract (Order appealed).
5.At trial the Honorable Albert R. Subers, Jr. of the Court of Common Pleas of Montgomery County, Pennsylvania ordered (Tr. 26 - 27) Attorney David A. Megay to file a written entry of appearance (R. 39a) before Attorney David A. Megay left the building.
On October 23, 1998:
1.Petitioner filed an Affidavit (R. 40 - 41a).
2.Petitioner filed a Motion for Reconsideration (R. 42 - 49a).
On October 26, 1998 the Honorable Albert R. Subers, Jr. of the Court of Common Pleas of Montgomery County, Pennsylvania refused (R. 50a) petitioner's "Motion for Reconsideration".
On October 27, 1998 petitioner notified Mike Fisher, Pennsylvania Attorney General, of a possible Constitutional challenge in petitioner's Motion for Reconsideration.
On November 13, 1998 petitioner filed a Notice of Appeal and Request for Transcript (R. 51a).
On November 17, 1998 the Honorable Albert R. Subers, Jr. ordered petitioner to file a Concise Statement of the matters complained of.
On November 30, 1998 petitioner filed a Concise Statement of the matters complained of.
On January 4, 1999 petitioner sent a letter to the court reporter requesting changes in the transcript.
On January 6, 1999 petitioner sent the Civil Docketing Statement which was filed on January 8, 1999.
On January 7, 1999 the Honorable Albert R. Subers dated his Opinion.
On January 8, 1999 in a letter the Honorable Albert R. Subers ordered petitioner not to contact the court reporter requesting changes in the transcript and instead file a petition.
On January 29, 1999 petitioner filed a Petition to Correct Transcript.
On February 22, 1999 petitioner filed a Brief and Reproduced Record of Appellant, attached.
On March 23, 1999 respondent filed a Brief for Appellee
On April 5, 1999 petitioner filed a Reply Brief of Appellant, attached.
On October 4, 1999 Superior Court issued its opinion, attached.
C. Statement of Issues Presented
Whether this Court should exercise its historical powers and jurisdiction, to hear the matters now pending before the Superior Court, that the Superior Court has deprived petitioner of plenary review of issues properly taken up on appeal, and has failed to address prima facie evidence of a breach of contract, a breach which undermines the entire concept of an independent criminal defense ability for any citizen, and constitutes a denial of petitioner's Fundamental and due process rights.
Also present in this case is a "petitioner's rights" incident, that occured in the trial court, when respondent physically assualted petitioner's Holy Bible, and the trial court judge, as well as the Superior Court, remained silent about what my be considered a 'hate crime'.
Suggested answer = Yes
D. Statement of Reasons Relied Upon for Relief
1.This Petition should be granted, because Petitioner was denied Fundamental Rights in the Unified Judicial System.
a.Petitioner's Fundamental Rights were violated when an attorney allegedly acting in a 6th ammendment capacity lied to a client to induce a guilty plea.
In the lobby before the hearing [OTN E 645972-5 on November 12, 1996] the respondent assured petitioner that the plea agreement (R. 30a) was still as petitioner knew the plea agreement to be, and would not change without petitioners approval. Respondent on several occasions had previously assured petitioner (Tr. 9 - 10, R. 43 - 44a) that respondent would force the Assistant District Attorney et al. to uphold the plea agreement. Nevertheless, respondent did not force the Assistant District Attorney et al. to uphold the plea agreement and therefore failed to protect petitioner's Fundamental Rights.
Assurances and promises by respondent, are most definitely a part of the contract for professional services, and the failure to maintain these assurances and promises, constitutes a breach of the contract for professional services. This breach is possibly the most egregious type of breach of a professional services contract.
No competent attorney would attempt to officially deny petitioner, petitioner’s Fundamental Rightsin open court.
Petitioner had a right to expect fairness by respondent, prosecutor and courts. This fairness is well established by the Judicial Canons and Rules of Professional Conduct, and, the appearance of fairness is illusionary unless the Judicial Canons and Rules of Professional Conduct are actually followed.
The apparent failure to adhere to the Judicial Canons and Rules of Professional Conduct, gives the appearance of violation of these principles. An attorney is supposed to protect rights not waive them.
Respondent's letter/contract (R. 30a) shows (3) blank tapes were to be returned to petitioner. After the hearing the reason the law enforcement agent and Assistant District Attorney et al. gave for failing to honor the plea agreement was that petitioner would recover the conversation from the tape.
The law enforcement agent and Assistant District Attorney et al. told petitioner that the tape in question (R. 30a) would be held until petitioner's appeal rights expired. Respondent could not (R. 32a) and did not (Tr. 16 - 17) inform petitioner of petitioner's appeal rights.
While the tape was originally purchased for a nominal economic value, the tape now has substantial value as possible evidence of a crime by a law enforcement agent. This is evidenced by the refusal to return the tape as agreed. This represents a taking without due process. Petitioner and respondent had a contract (Tr. 9 - 10; R. 43 - 44a) as to how respondent was to act in this situation. Respondent's action of allowing the refusal to return the tape as agreed to, damaged petitioner. Therefusal to return the tape as agreed to by the Pennsylvania State Police et al. justifies any valuation.
Petitioner's explicit reservation of all rights include, but are not limited to, the right to expect that respondent and other court officers will uphold their Constitutional Oaths of Office. If they do not, the entire process is void.
Since the Assistant District Attorney et al. did not follow the plea agreement and petitioner's alleged attorney failed to force the Assistant District Attorney et al. to honor the plea agreement, after respondent repeatedly promised petitioner that respondent would force the Assistant District Attorney et al. to honor the plea agreement, petitioner had no need to honor the plea agreement.
Petitioner, as instructed by petitioner's Congressman (Jon D. Fox), went to Chester County District Justice Martin as instructed to "tell him what happened and to fix it!". Petitioner called as requested and was asked by the judge's clerk to put it in writing (Exhibit "A"). Petitioner did so and petitioner's request was Denied while petitioner waited. By this immedite decision, petitioner was deprived of petitioner's rights of fair hearing and due process of law.
Petitioner was denied the right, exclusively reserved when petitioner signed the plea agreement, to withdraw petitioner's guilty plea. Respondent failed to represent petitioner as contracted for, and the Assistant District Attorney et al. failed to uphold the plea agreement.
The issues raised by petitioner are supported by the following case law.
“And if the doctrine of stare decisis has any meaning at all, it requires that people in their everyday affairs be [412 U.S. 391, 400] able to rely on our (U.S. Supreme Court) decisions and not be needlessly penalized for such reliance.” U.S. v. Mason, 412 U.S. 391(1973)
“A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Rules of Professional Conduct - Preamble: a Lawyer’s Responsibilities - first sentance
According to Strickland v. Washington 466 U.S. 668 (1984), to establish ineffective assistance of counsel, petitioner must show that counsel's performance was below an objective standard of reasonableness under prevailing norms. This is shown by respondent’s failure to do research, identified by the District Justice as a trait of a competent attorney (R. 29a), by respondent’s lack of interest in petitioner’s rights, respondent’s atrocious behavior (R. 7 - 8a) in the courtroom and respondent’s taking the side of the Assistant District Attorney et al. after petitioner upheld petitioner’s portion of the plea agreement in violation of respondent’s written word and petitioner’s repeated oral and written requests for respondent to honor the plea agreement.
Petitioner's right to protect petitioner's property is supported by substantial case law. "Whenever one is assailed in his person or property, there he may defend." Windsor v. McVeigh, 93 U.S. 274
"a defendant who admits factual guilt (even coerced) need not silently accept any punishment that the government (or attorneys) chooses to mete out,. . . . Otherwise, the constitutional rights to effectiveassistance of counsel and due process are illusory.” United States v. Smith, 106 F.3d 350 (11th Cir. 1996), Judge Barkett
The United States Court of Appeals for the Tenth Circuit decided that the Rules of Professional Conduct do apply to attorneys. “...we should question the integrity of any criminal-defense attorney who would violate the ethical norms of the profession...” Caplin & Drysdale, Chartered v. United States, 491U.S. 617 (1989)
" 'Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.' " United States v. Cronic, 466 U.S. 648, 654, 104 S. Ct. 2039, 80 L.Ed.2d 657 (1984) (quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956))
"The Sixth Amendment guarantees that: 'In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.' This is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. " ... ' The special value of the right to the assistance of counsel explains why "[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
“An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases ‘are necessities, not luxuries.’ Their presence is essential becausethey are the means through which the other rights of the person on trial are secured.” ...
“The Amendment requires not merely the provision of counsel to the accused, but ‘Assistance,’ which is to be ‘for his defence.’ Thus, "the core purpose of the counsel guarantee was to assure `Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U.S. 300, 309 (1973). If no actual ‘Assistance’ ‘for’ the accused's ‘defence’ is provided, then the constitutional guarantee has been violated.” ...
"While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators." United States v. Cronic, 466 U.S. 648 (1984)
“It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.” Downes v. Bidwell, 182 U.S. 244 (1901)
“An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, it’s action cannot stand and courts will strike it down.” United States v. Heffner 420 F.2d 809 (4th Cir. 1970)
The contract is binding. Petitioner was bound, respondent appears not to be bound.
What is the value of the public trust in the ethics and honesty of the bar?
"It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.'" Johnson v. Zerbst, 304 US 458, 468 (1938)
b.Petitioner's Fundamental Rights were violated when petitioner's Holy Bible was physically assaulted by respondent without provication at the trial.
During the trial, Attorney David A. Megay without provication came to petitioners table and threw petitioner's Holy Bible into the air. This material fact was evidenced in an affidavit (R. 40 - 41a), "Motion for Reconsideration" (R. 42 - 49a) and petitioners appeal to Superior Court (Petitioner's Brief question O).
Petitioner had and still has a right to be secure in the courtroom and respondent's actions constitute a violation of petitioner's rights.
The throwing of petitioner's Holy Bible (Old and New Testaments) by respondent shows more than disrespect for the "written word of God" and may be considered a 'hate crime'.
2.This Petition should be granted, because Petitioner was denied due process and due process of law in the Unified Judicial System.
a.Petitioner's rights were violated when the lower court Judge and respondant both admitted to an ex parte!
This ex parte deprived petitioner of petitioner's opportunity to object, was prejudicial to petitioner and violated petitioner's due process rights.
The entire record shows evidence that at hearing and argument, and of record, respondent never "moved the court". The lower court opinion states on page 3 "Prior to trial ... oral motion..." and respondent's brief on page 10 states "prior to trial". Respondent did not move the lower court of record, and thereby deprived petitioner of petitioner's rights through the ex parte motion.
A double standard most surely exists when an attorney and the judiciary attempt to hold themselves to be above the law.
Legislators have sunshine laws that force them to do things in public. Attorney ethics prevent back room justice.
"The public have almost as deep an interest in the independence of the bar as of the bench." Cammer v. United States, 350 U.S. 399 at 407 (1956)
b.Petitioner's rights were violated when the lower court denied petitioner the same jurisdiction, which it had offered to respondent for a breach of the samecontract.
"The Court of Common Pleas has unlimited original jurisdiction in all cases except as may otherwise be provided by law." Constitution for the Pennsylvania Commonwealth, Article V Section 5(b)
During the Montgomery County local rule 212(k)(4) hearing the Honorable Paul W. Tressler repatedly tried to force petitioner to change petitioner's damages from unliquidated to liquidated damages by promising (Tr. 3) that if petitioner's liquidated damages were over $50,000 that the Honorable Paul W. Tressler would grant petitioner a 'Trial by Jury' as petitioner requested in petitioner's praecipe for trial by jury (R. 19a).
During the Montgomery County local rule 212(k)(4) hearing petitioner orally stated the value was well over $50,000 but reiterated "only a jury in a 'trial by jury' can determine the value of the case." And,
With this first judicial action, the Court of Common Pleas seized jurisdiction, which had been offered by respondent with filing of the complaint and by petitioner by filing of answer/counterclaim, and the lower court judicially affirmend petitioner's ability to proceed with claims of unliquidated damages. But,
Petitioner was forced to pay a penalty by the Honorable Paul W. Tressler for proceding with unliquidated damages. The penalty was petitioner having to go to arbitration, but not that petitionerwas unable to proceed with unliquidated damages.
The second judicial action (Tr. 21) with unliquidated damages, was Arbitration. Although the arbitrators found against the petitioner on petitioner's counterclaim, the arbitrators did not find that petitioner had no jursdiction or that petitioner could not proceed with unliquidated damages.
The third judicial action, where petitioner was compelled to trial with unliquidated damages, was the pre-trial conference.
In the fourth judicial action, the lower court claimed no jurisdiction and chose not to proceed with unliquidated damages, this is in direct contradiction to the three prior judicial actions, where the lower court assumed jurisdiction in the same matter, while assuming jurisdiction to serve respondent's purposes. And,
The Superior Court admits in memorandum "Appellant recieved no award on his counterclaim" thereby acknowledging that petitioner's counterclaim had jurisdiction. And,
It appears to be an abuse of process when repondent attempts to use the Court of Common Pleas as a collection agency, and invokes the law side of the lower court's jurisdiction, to render a valid judgment, but when petitioner seeks to proceed with the established jurisdiction, with a counterclaim in the same matter of breach of contract, the lower court suddenly decides that it lacks jurisdiction. This is selective discrimination of jurisdiction and Judicial Power and denied petitioner the right tobe heard in the matter of breach of contract, where respondent was granted jurisdiction for a breach of the same contract.
Furthermore, under the International Covenant on Civil and Political Rights, and under the Universal Declaration of Human Rights, the United States is a signatory under affirmative obligations, both legal and moral, to provide effective judicial remedies for violations of fundamental Rights, even when those violations were committed by persons acting in their official capacities, and also to develop the possibilities of effective judicial remedies. These treaties are supreme Law pursuant to the Supremacy Clause in the U.S. Constitution. Respondent is an officer of this Court and a Bar Member and, as such, is legally bound by these two treaties.
“In support of its assertion, the court cited the Universal Declaration of Human Rights, the American Convention of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms.” Caballero v. Caplinger, 914 F. Supp. 1374 @1379 (E.D. La. 1996).
The long standing legal doctrine of Chief Justice Marshall is most apposite. "It is most true that this Court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is notgiven. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously perform our duty." Cohens v. Virginia, 19 U.S. (6 Wheat 264) at 404
"As the comment recognizes, because judicial review grows out of the fiction that courts only declare what the law is in specific cases and are without will or discretion, its exercise is surrounded by the inherent limitations of the judicial process, most basically, of course, by the necessity of a case or controversy and the strands of the doctrine comprising the concept of justiciability. But, although there are hints of Chief Justice Marshall's activism in recent cases, the Court has always adhered, at times more strictly than at other times, to several discretionary rules or concepts of restraint in the exercise of judicial review, the practice of which is very much contrary to the quoted dicta from Cohens. These rules, it should be noted, are in addition to the vast discretionary power which the Supreme Court has to grant or deny review of judgements in lower courts, a discretion fully authorized with certiorari jurisdiction but in effect in practice as well with regard to what remains of appeals." http://caselaw.findlaw.com/data/Constitution/article03/13.html
Implicit in the argument of Cohens v. Virginia is the thought that with regard to cases meeting jurisdictional standards, the Court is obligated to take and decide them.
Paula Jones recently proved no office holder is beyond suit.
Writing for the majority, Chief Justice John Marshall rhetorically dennunciated the concept ofsovereign immunity in America in these words: "... what is there, in the exalted station of the officer, which shall bar a citizen from asserting, in a court of justice, his legal rights, or shall forbid a court to listen to the claim... If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?" Marbury v. Madison, 5 U.S. (1 Cranch 137) (1803) at 170
"The very essence or civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection." Id. at 163. Therefore, in the light of the important and unresolved constitutional question inherent in this matter, one does not have to be a rocket scientist to realize that this pro se petitioner has been attemptedly disenfranchised of the rights and privileges of American citizenship accorded to respondent.
c.Petitioner's rights were violated when respondent failed to preform specific legal services contracted for!
O'DONNELL, WEISS & MATTEI, P.C. was contracted by petitioner for specific legal services, under constraints of the contract for engagement for professional services which included three distinct portions:
1.The Sworn, Sacred and Solemn Oath of Office 42 Pa.C.S. 2522; "I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth, and that I will discharge the duties of my office with fidelity as well as to the court as to the client, that I will use no falsehoods, nor delay the cause of any person for lucre or malice." This is respondent's contract with the beneficiaries of the Constructive Trusts, known as the Constitution of the United States and the Constitution of this Commonwealth.
2.The Rules of Professional Conduct. This is respondent's contract with the profession and constitutes a requirement for specific performance with petitioner.
3.The oral and written agreements between respondent and petitioner constitute a contract for specific performance. The contract with petitioner was for 'professional services' (R. 4a).
Respondent breached all three parts!
Respondent also failed to inform petitioner of petitioner’s appeal rights (R. 32a).
“an attorney's failure to advise a client of his right to appeal, and of his right to an attorney on appeal, amounts to ''a substantial showing'' of denial of the right to effective counsel.” Lozada v. Deeds, 498 U.S. 430, 432 (1991) (Tr. 17, R. 52a)
d.Petitioner's rights were violated when the lower court allowed respondent to violate local rules of court which are promulgated as law.
Respondent made no written entry of appearance before trial as required by Montgomery County local rule 1012(b) (Tr. 26 - 27, R. 40 - 41a, 46 - 47a).
e.Petitioner's rights were violated when respondent discontinued (R. 35a) petitioner's case without petitioner's permission (R. 36a). And,
Petitioner's rights were violated again when respondent discontinued a second time (R. 38a) in the same matter.
f.Petitioner's rights were violated when the lower court stenographer failed to make a complete record of the trial (R. 44a, 51a, 52a).
3.This Petition should be granted, because a conflict currently exists between the Executive Branch and certain members of the Judicial Branch of the Government of the Pennsylvania Commonwealth.
At the pre trial conference with the Honorable Lawrence A. Brown, the Honorable Lawrence A. Brown stated about 'trial by jury' in reference to Governor Casey's proclamation, "not in mycourtroom!"
In light of their oath of office, and long standing U.S. Supreme Court opinions on the subject, how can judcial officers usurp power specifically excluded from them, and explicitly reserved by the people throughout American history, as evidenced by a 1994 Gubenatorial Proclimation by Govenor Casey (R. 34a) stating the concept of "Trial by Jury" is permanently established legal doctrine in Pennsylvania and America!?
How can this be? William Penn, our founding father, was the first beneficiary of 'trial by jury' (R. 34a).
Petitioner filed in the Court of Common Pleas in case #97-06280 a "Motion for More Clear and Definate Statement" (R. 37a). Respondent failed to respond. Petitioner recieved no hearing about petitioner's motion. Silence is aquiesence, petitioner should have been granted the relief petitioner requested.
Judicial officers are authorized to administer oaths, and thereby have a special obligation to fully understand what the oath means before administering them! Otherwise they would be unable to answer questions posed by people taking the oath.
Petitioner's rights were violated when the lower court refused to follow a gubenatorial proclamation about how the courts work (R. 34a).
4.This Petition should be granted, because Petitioner was denied the right of plenary review by the Superior Court.
Petitioner's rights were violated when the Superior Court failed to take plenary review.
This court's exercise of its extraordinary jurisdiction is appropriate where the Superior Court has failed to take plenary review of issues preserved in the lower court and properly raised and presented on appeal, yet the Superior Court stated in Memorandum that petitioner waived the right. (Judgement & Memorandum attached hereto after Petition)
Petitioner never voluntarily, knowingly or intelligently waived any right whatsoever. Brady v. U. S., 397 U.S. 742 (1970)
No waiver of rights exists or applies. All eighteen questions were valid questions for plenary appellate review. An appeal from Common Pleas is in the nature of a Writ of Certiorari (Pa. R.A.P. 905 Note).
"It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.'" Johnson v. Zerbst, 304 US 458, 468 (1938)
"Under present practice, which is prescribed in Rule 1925(b), an appellant need file a statement ofmatters complained of only if directed to do so by order of the trial judge." Pennsylvania Appellate Practice 2d - 1925:7 at 19-50
"... failure to comply with rule requiring them to file statement of matters complained of operated as a waiver of all objections" Barrick v. Fox, 457 A. 2d 208 at 208
The material fact is petitioner did file a statement of matters complained of. Petitioners concise statement consisted of only one sentence and was therefore concise. Questions of matters complained of were clearly delineated on petitioner's Civil Docketing Statement.
"A direction to file a concise statement of matters complained of does not invite the filing of a brief. Where appellant responds to a directive to file a concise statement of matters complained of with a statement that the trial court finds to be unsatisfactory, the proper course for the trial court to follow is to order a more explicit statement to be filed." Pennsylvania Appellate Practice 2d - 1925:7 at 19-50
The lower court failed to order a more explicit statement to be filed, thereby ensuring petitioner made no waiver of petitioner's rights whatsoever.
Case law and legal texts are very specific on the issues of the ability of a court to take appellate review, and what is required for a waiver of rights to overcome the ability of a court to take appellate review.
"... constitutes a technical defect which should not result in a waiver. Similarly, a Rule 1925(b) waiver will not be found to exist where lack of compliance with the Rule is technical in nature only ..." Goodrich - Amram 2d - 1925:10 at 19-52
"If failure by defendant's counsel to comply with rule ... if failure does not defeat, or even interfere with, ability to exercise appellate review, failure should not be considered as a waiver." Commonwealth v. Crowley 393 A. 2d 789 at 789
"The Commonwealth argues ... must be considered ... a waiver. We are not persuaded that we should do so. The rule, explicitly, and plainly, gives us discretion. We find no reason to strip ourselves of this discretion." Id at 792
"The drastic sanction of waiver is properly invoked only where the appellate court finds that failure to comply interferes with or effectively precludes appellant review." Pennsylvania Appellate Practice 2d - 1925:10 at 19-51
Such a sanction is a "drastic sanction" for a learned in the law attorney and should not be used for a non-learned, non attorney. Respondent presented no case law pursuant to Haines v. Kerner, 404 U.S. 519 (1972) and attempts to direct this court to ignore reasonable presumptions against waiver's of fundamental constitutional rights in case law, and treat a non-learned, non attorney as a learned in the law attorney contrary to the opinion of the United States Court of Appeals for the Seventh Circuit.
"Pa. R.A.P. 1925(b), however, is based on only the second of these reasons: it facilitates appellate review by enabling the lower court to explain its decisions; but it does not provide the lower court the opportunity to correct any error that may have occurred. ... we may not treat the statement of matters complained of as the equivalent of a post-trial motion, ... Instead, we must consider the impact on our ability to exercise appellate review. ... However, if the failure does not defeat, or even interfere with, the ability to exercise appellate review, then the failure should not be considered a waiver. ... When this principle is applied to the present case, it becomes apparent that no waiver should be found." Commonwealth v. Crowley 393 A. 2d 789 at 792
"... appellant's (Crowley) counsel's failure to tell the lower court that he was going to argue the issue to us has not defeated, or even interfered with, our ability to exercise appellate review." Id. at 793
"Appellant's (Jones) argument ... implies a harsh and absurd result which we cannot allow." Jones v. Travelers 514 A. 2d 576 at 581
5. This Petition should be granted, because of misrepresentation by the Superior Court.
The Superior Court misrepresented as fact in memorandum "legal fees owed" without proof or current lawful adjudication.
The Superior Court misrepresented as fact in memorandum "surreptitiously recorded" which was amere allegation that was never lawfully proven.
The Superior Court misrepresented as fact in memorandum "the criminal action was resolved". The criminal action has not been resolved to a Constitutional resolution.
The Superior Court misrepresented as fact in memorandum "failed to set forth what damages he sustained" while ignoring promulgated law Pa. R.C.P. 1021(b) and Haines v. Kerner, 404 U.S. 519 (1972).
The Superior Court misrepresented as fact in memorandum "prior to trial and jury selection, Appellee moved for dismissal", when in fact both the lower court and respondent admited in writing, that the never of record motion, was made 'prior to trial' not prior to jury selection, i.e. ex parte! (lower court opinion page 3 and appellee's brief on page 10)
The Superior Court misrepresented as fact in memorandum "Appellant raised a single issue" which is in fact not true. Petitioner is making substantial arguments in D(4) above about alledged waiver of rights, and raised eighteen (18) separate and distinct questions in the Superior Court.
The Superior Court failed to follow ruling case law on the subject, and chose to ignore a citizen's right to plenary review of issues properly raised on appeal.
The Superior Court misrepresented in memorandum "issues were not raised before the trial court". Petitioner properly raised issues in the trial court and properly took them up on appeal. The entire record reflects this.
The Superior Court misreprents "We find no procedural irregularities in the record". Are ex-parte's, Holy Bible throwing, failure to follow locally promulgated rules of court, etc. regular procedures in the Unified Judicial System?
The Superior Court misrepresented as fact in memorandum "Issues not raised in the lower court are waived", that which is in fact not true. Petitioner is making substantial argument in D(4) about alledged waiver of rights.
The Superior Court made decisions in memorandum, which appear to reflect only the opinion of the lower court and respondent's arguments, while at the same time stating that petitioner waived petitioner's right to present matters for argument.
Asking the Superior Court for reargument and/or reconsideration is impracticable.
Conclusion and Relief Sought
The sacred trust of the people has been placed in you. You are the guardians of justice. Rights and statutes were contsantly violated in this case, and may represent a pattern of abuse.
No failure to comply with the lower court order to identify matters raised on appeal in petitioner's concise statement or waiver of rights exists. Appellant review is not precluded as a matter of law, due process or due process of law.
Sanctity of contract must remain an inviolate principle of law. In recognition of people who bind themselves of their own free will, contracts and their terms will be upheld by the courts.
Petitioner respectfully requests that historical powers and jurisdiction specifically reserved by the First Sentence of Section 1 of the Schedule to the Judiciary Article of the Pennsylvania Constitution be used. Petitioner respectfully requests this Honorable Court exercise the historical powers and jurisdiction which it has, and even more importantly, that which it specifically reserved for itself.
Petitioner respectfully requests this Honorable Court to exercise its extraordinary jurisdiction and hear as on appeal the O'Donnell case to quickly and efficiently correct violations of petitioner's rights, as a matter of law vacate the lower court's Final Order entered on October 15, 1998, as a matter of law vacate the Superior Court's Order entered on October 4, 1999, and remand the case to the lower court with directions for retrial in a 'trial by jury'.
Most respectfully submitted,
Dated: November 3, 1999 _____________________________
John Allan Granger, Petitioner
2820 Audubon Village Drive, Suite 339
Audubon, Pennsylvania 19403
(610) 287-2109
VERIFICATION
John Allan Granger hereby certifies that the facts set forth in the foregoing "Application for Exercise of Plenary And Extraordinary Jurisdiction Using King's Bench and Superintendency Powers' is true and correct to the best of my knowledge, information and belief, and that this Verification is taken; subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsifications to authorities.
Dated: November 3, 1999 _____________________________
John Allan Granger, Petitioner
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving the foregoing "Application for Exercise of Plenary And Extraordinary Jurisdiction Using King's Bench and Superintendency Powers" pursuant to Pa. R.A.P. 3309 upon the persons and in the manner indicated below which service satisfies the requirements of Pa.R.A.P. 3309(a):
Service by certified mail addressed as follows:
David A Megay, Esq. 610-323-2800
O' DONNELL, WEISS & MATTEI, P.C.
41 High Street
Pottstown, Pennsylvania 19464-0285
(Counsel for O'DONNELL, WEISS & MATTEI, P.C.)
Service by first class mail addressed as follows:
The Superior Court of Pennsylvania, Office of the Prothonotary
David A. Szewczak 215-560-5795
530 Walnut Street, Third Floor
Philadelphia, Pennsylvania 19106
Judge Stephen J. McEwen, Jr. 610-447-3355
Courthouse
Media, Pennsylvania 19063
Judge William F. Cercone 412-565-3670
2801 Grant Building
330 Grant Street
Pittsburgh, Pennsylvania 15219
Judge John P. Hester 412-565-5473
2330 Grant Building
330 Grant Street
Pittsburgh, Pennsylvania 15219
November 3, 1999 ________________________
John Allan Granger, Petitioner
2820 Audubon Village Drive, Suite 339
Audubon, Pennsylvania 19403
(610) 287-2109
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