Petition — Kenny v. City of Philadelphia

Supreme Court, U, S.

F I L ED

SEP 3 1977

IN THE MICHAEL RODA , JR. CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1977

mm. Be sre

CITY OF PHILADELPHIA, Respondent

v.

Joseru F. Kenny, RayMonp F. Percivat, E. A. THOMAS,

Guy W. Harvey, Jra., Asner B. Deckert, WILLIAM H. HAZZARD,

JAMES SpROLES, JEnomME L. NEWMAN, FREDERICK JENNINGS,

Gioria T. Jones, Georce V. Scuock, Grong]. CILONA,

CHARLES H. Cross, Ronacp O. Garrner, Antuur E. Cornet,

AND MEYER GOLDSTEIN,

AND

GorDON MacDONALD AND LAWRENCE Rock, Petitioners

PETITION FOR WRIT OF CERTIORARI

TO THE COMMONWEALTH COURT

OF PENNSYLVANIA

KENNETH E. AARON

Counsel for Petitioner

935 Lafayette Building

Philadelphia, Pennsylvania 19101

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19107 (215) 501-4098

TABLE OF CONTENTS

Statement of the Question Presented for Review ....

Constitutional Provisions and Statutory Provisions

DT a save Rede sovesdeviouces seceeceecs

Ee

Reasons for Granting Writ

1. The Decision Below Conflicts with the Gen-

erally Accepted Concepts of Due Process Con-

cerning the Reasonable Sanctions Upon a

Civil Defendant Invoking His Right to Remain

CNT TTT OTT CP TET TTT IEEE

. The Decision Below Is Not in Accord with

the Prior Decisions of this Court Concerning

the Government's Use of Penalties for the

Non-Criminal Invocation of the Fifth Amend-

GEE bbb be be.cescebeheoescbectécoececeece

. This Court Has Not Previously Determined

the Question of Reasonable Sanctions Upon

the Defendant in a Civil Litigation for Assert-

ing His Fifth Amendment Privilege ........

. The Decision Below Raises a Significant and

Recurring Problem of the Propriety of Sanc-

tioning a Civil Defendant for Asserting His

Fifth Amendment Privilege ...............

Appendix : |

“A” Opinion of the Commonwealth Court of

11

Pennsylvania Dated February 8, 1977. .... Al

“B” Opinion of the Commonwealth Court of

Pennsylvania Dated March 2, 1977. ...... All

i

TABLE OF CONTENTS—( Continued )

Page

“C” Order of the Supreme Court of Pennsylvania

Denying Petition for Allowance of Appeal

CL ED av'awewed xe'edéevectsedusnes Al5

“D” Order of the Supreme Court of Pennsylvania

Denying Petition for Allowance of Appeal

SEY c5U5 7 Keb cues Chand shee kaa res) Al6

TABLE OF CITATIONS

Federal Cases:

Arthurs v. Stern, 425 F’. Supp. 425 (D. Mass. March 3,

gg PRR T rer T Teer er eee 13, 15

Baxter v. Palmigiano, 425 U.S. 308 (1976) ....11, 12, 13

Cunningham v. Bronx Cty. Demo Exec. Comm., 420

F.Supp. 1004 (S.D.N.Y. 1976) prob. juris. noted

sub nom., Lefkowitz v. Cunningham, 97 S.Ct.

See CPD CHR WEED ccc vtccncacccccccees 15

Frierson v. McIntyre, 151 F. Supp. 5 (W.D. Va. 1953) 13

Gardner v. Broderick, 392 U.S. 273 (1968) ......... 9

Garrity v. New Jersey, 385 U.S. 493 (1967) ........ 9, 10

Johnson v. United States, 318 U.S. 189 (1943) ...... 14

Lefkowitz v. Turley, 414 U.S. 70 (1973) ........... 9, 15

Paynes v. Lee, 362 F. Supp. 797 (M.D. La. 1973) .... 8

Spevack v. Klein, 385 U.S. 518 (1967) ............ 10

Wolff v. McDonnell, 418 U.S. 539 (1974) .......... 11

Pennsylvania Cases:

Phelin v. Kenderdine, 20 Pa. 354 (1853) ........... 14

Silverberg, In Re, 459 Pa. 107, 327 A.2d 106 (1974) .. 14

ii

TABLE OF CITATIONS—( Continued)

Other Jurisdictions: Page

Berg v. Pentilla, 173 Minn. 512, 217 N.W. 935 (1928) 13

Grognet v. Fox Valley Trucking Service, 45 Wis. 2d

235, 172 N.Y. 2d 819 (1960) .........ceeeeees 8

Kaneshiro v. Belisario, 466 P.2d 452 (Hawaii 1970)... 13

Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225 (1974) .. 7

Mayo v. Ford, 184 A.2d 38 (D.C. Ct. Munic. App.

RR a ee ee err Pr TT Tee 13

State Board of Medical Examiners v. McHenery, 69

So.2d 502 (La. Ct. App. 1953) .......eeeeeves 13

Steinbrecher v. Wapnick, 24 N.Y.2d 354, 248 N.E. 2d

SEE Gucci We dvGu Lb cbocwesdebovececece 7

Statutes:

A Mita ewetheseuscesvecescs 3

Rules:

Pa. R. Civil Procedure:

bees. cocewe ce been ehees ocde scenes 5, 9

PUSS ect uh octheleee ned édedhne casei ccess 4,9

gs eR RE ee ey ey 4,9

Other Authorities:

Comments, The Privilege Against Self-Incrimination

in Civil Litigation, 1968 U.Ill. L.F. 75 (1968)... 14

Commentaries, Penalizing the Civil Litigant Who In-

vokes the Privilege Against Self-Incrimination,

24 U. Fla. L. Rev. 541 (1972) .........ce evens 14

Kaminsky, Preventing Unfair Use of the Privilege

Against Self-Incrimination in Private Civil Litiga-

tion: A Critical Analysis, 39 Brooklyn L. Rev. 121

ERED ShuSbGdbs sb ebeseeeehéese bevecesen 8, 15

TABLE OF CITATIONS—( Continued)

Other Authorities: Page

Ratner, Consequences of Exercising the Privilege

Against Self-Incrimination, 24 U.Chi. L. Rev. 472

¢ sree ee 10, 15

Sewell, The Self-Incrimination Clause And Adminis-

trative Law, 39 Tennessee L. Rev. 207 (1972) ..9, 14

8 Wigmore, Evidence 429 (McNaughton Rev. 1961) 8

Wayne, Prison Disciplinary Proceedings and the Fifth

Amendment Privilege Against Self-Incrimination,

55 N.C.L. Rev. 254 (1977) ......cceeveevees 15

iv

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

City oF PHILADELPHIA, Respondent

v.

Joseru F. KENNy, RAYMOND F. PERcIVAL, E. A. THOMAS,

Guy W. Harvey, Jr., ABNER B. Deckert, WILLIAM H. HAZZARD,

JAMES SPROLES, JEROME L. NEWMAN, FREDERICK JENNINGS,

Gioria T. Jones, Georce V. Schock, Georce J. CILONA,

Cuar.es H. Cross, RoNALpD O. GAITHER, ARTHUR E. CORNELL, -

AND MEYER GOLDSTEIN,

AND

GorDON MACDONALD AND LAWRENCE Rock, Petitioners

PETITION FOR WRIT OF CERTIORARI

. TO THE COMMONWEALTH COURT

OF PENNSYLVANIA

~

The petitioners respectfully pray that a Writ of Certi-

orari issue to review the judgments and opinions of the

Commonwealth Court of Pennsylvania. Petitioners are

eighteen (18) individuals who are defendants in separate

actions in the Court of Common Pleas of Philadelphia

County and appellants in two separate consolidated ap-

peals before the Commonwealth Court of Pennsylvania.

The petitioners file a single Petition for Writ of Certiorari

1

2

covering all eighteen (18) cases since they involve an

identical or closely related question pursuant to Supreme

Court Rule 24(5).

OPINION BELOW

The opinion of the Commonwealth Court of Pennsyl-

vania in sixteen of these cases is reported as City of Phila-

delphia v. Kenny, at 369 A.2d 1343 (February 8, 1977);

the official report has not been printed as yet. A copy of

the opinion in City of Philadelphia v. Kenny appears in the

Appendix hereto as Appendix “A”. The opinion of the

Commonwealth Court of Pennsylvania in two of these

cases is reported as City of Philadelphia v. MacDonald, at

369 A.2d 1341 (March 2, 1977); the official report has not

been printed as yet. A copy of the opinion in City of

Philadelphia v. MacDonald appears in the Appendix

hereto as Appendix “B”.

JURISDICTION

The judgment of the Commonwealth Court of Penn-

sylvania in the sixteen cases consolidated as City of Phila-

delphia v. Kenny was entered on February 8, 1977. The

judgment of the Commonwealth Court of Pennsylvania

in the two cases consolidated as City of Philadelphia v.

MacDonald was entered on March 2, 1977. Petitions for

discretionary allowance of appeal to the Supreme Court of

Pennsylvania were filed with the Prothonotary of the

Supreme Court of Pennsylvania in a timely manner. The

Supreme Court of Pennsylvania denied the Petitions for

Allowance of Appeal from both opinions of the Common-

wealth Court by separate orders dated June 27, 1977 and

entered by the Prothonotary of the Supreme Court of Penn-

sylvania on June 28, 1977. The orders of the Supreme

Court of Pennsylvania appear in the Appendix hereto as

Appendix “C” and Appendix “D”. This Petition for Writ

3

of Certiorari was filed within ninety (90) days of June 28,

1977. This Court's jurisdiction is invoked under 28 U.S.C.

§1257(3).

STATEMENT OF THE QUESTION PRESENTED

FOR REVIEW

Where the Government institutes a civil complaint

alleging facts which are also the elements of a crime and

the petitioner-defendant pleads as his answer his privi-

lege to remain silent, did the lower court, by entering an

automatic summary judgment against the petitioner-de-

fendant, impose an unreasonable penalty upon petitioner-

defendant's assertion of his Fifth Amendment rights?

CONSTITUTIONAL PROVISIONS AND

STATUTORY PROVISIONS INVOLVED

This case concerns the application of the Fifth Amend-

mend of the United States Constitution which states as

follows:

“No person shall be held to answer for a capital,

or. otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public dan-

ger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a wit-

ness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.”

4

STATEMENT OF THE CASE

The eighteen (18) cases presented to this Honorable

Court in this petition are in fact, substantially the same.

In all eighteen (18) cases, the City of Philadelphia (here-

inafter referred to as “City”) instituted a separate civil

action against each one of the individual petitioners. In

verified pleadings, the City alleged that the individual peti-

tioner involved in each case was legally obligated to pay

the Philadelphia City Wage Tax, that he had failed to file

a return for the City wage tax, and that he had failed to

pay the tax. Such allegations, although necessary allega-

tions of a civil action for collection of the tax, are also the

necessary allegations of a criminal action for a fine or

possible imprisonment under §19-508(3) of the Philadel-

phia Code. Such an action for a fine and possible imprison-

ment is a criminal proceeding under Pennsylvania Rules of

Criminal Procedure 3(f), 3(k) and 67(a), as amended.

All of the petitioners in their separate, verified plead-

ings filed answers to the allegations of the City’s com-

plaints in which they admitted or specifically denied those

allegations which could not tend to incriminate them, and

asserted their Fifth Amendment right to remain silent as

to those allegations of the City’s complaint which could

tend to incriminate them. The specific wording of this

pleading was as follows:

“Denied. Defendant specifically denies these

allegations on the basis that he is entitled to deny

them pursuant to the rights granted to him by the

case of City v. Cline, 158 Pa. Super. 178 (1945), cert.

denied, 328 U.S. 848, and the Fifth Amendment of the

United States Constitution.”

In each of these separate matters, the City of Phila-

delphia filed either a Motion for Judgment on the Plead-

ing or a Motion for Summary Judgment under Pennsy]l-

vania Rules of Civil Procedure 1034 and 1035. The judges

5

of the Court of Common Pleas of Philadelphia County

granted the City’s motions and entered judgments in favor

of the City against each of the individual petitioners. Each

of the judges of the Court of Common Pleas of Philadel-

phia County who had these motions presented to them,

filed opinions in which they ruled that the petitioners’

assertion of their privilege to remain sjlent was an ad-

mission under the Rules of Civil Procedure, Pa. R.C.P.

1029, and therefore, the allegations without further evi-

dence were uncontradicted and a judgment should be

granted for the City.

Each of the individual petitioners appealed the judg-

ments in their cases to the Commonwealth Court of Penn-

sylvania and sixteen (16) of these cases were consolidated

for brief and argument under the title of City of Philadel-

phia v. Joseph F. Kenny, and two other cases were consol-

idated for separate brief and argument under the name of

City of Philadelphia v. Gordon MacDonald. In the opinion

of the Commonwealth Court in City of Philadelphia v.

Kenny, the court ruled that the assertion of the privilege

in these cases was proper. However, the court then rea-

soned as follows:

“In the present cases, a reasonable inference to be

drawn from the appellants’ assertion of the privilege is that

a truthful response to the relevant allegations of the City’s

complaint would fail to deny these allegations. [citations

omitted.] Therefore, we may deem the allegations in para-

graphs 2 and 5 of the complaint to be admitted by failure

to deny specifically or by necessary implication,’ and, there-

fore, the assertion of the privilege leaves no unresolved

questions of fact which would render judgment on the

pleadings or summary judgment inappropriate.

3. Pa. R.C.P. No. 1029(b), 42 Pa.C.S.A. [emphasis original].”

(Appendix “A,” A9 and A10).

The Commonwealth Court thereafter affirmed the judg-

ments of the courts below.

6

The Commonwealth Court also, in the cases of City

of Philadelphia v. MacDonald, incorporated by reference

the holding in its case of City of Philadelphia v. Kenny, as

to this constitutional question.

All of the petitioners filed timely petitions for allow-

ance for appeal with the Supreme Court of Pennsylvania.

The Supreme Court of Pennsylvania denied the allowance

of these discretionary appeals.

7

REASONS FOR GRANTING WRIT

1. The Decision Below Conflicts with the Generally Ac-

cepted Concepts of Due Process Concerning the

Reasonable Sanctions Upon a Civil Defendant Invok-

ing His Right to Remain Silent.

The prevailing rule of law in the United States is

that prior to trial, the courts will not penalize a defendant

for invoking the privilege against self-incrimination in a

civil case.1 This is based upon the concept that he is in-

voluntarily before the court and the burden remains upon

the plaintiff to prove its case. This proposition is well

stated by the Supreme Court of New Jersey in a recent

decision—Mahne v. Mahne, 66 N.J. 53, 328 A.2d 225

(1974)—which was cited by the Commonwealth Court

in City of Philadelphia v. Kenny (A.9) as supporting its

own decision. In Mahne, the Supreme Court stated:

“The striking of the answers of the defendants,

thereby placing them in a position of defaulting and

non-resisting parties, appears to us to have imposed

an undue cost on the exercise of the privilege and to

have been unwarranted in the circumstances. The

plaintiff has the burden of establishing his charge of

adultery and there is no suggestion by him that he

will be unable to proceed e itiously with his case

without the aid of pretrial testimony from the de-

fendants. At the trial the plaintiff will have the

benefit not only of his own showing but also of any

inference to be drawn from the defendants’ pretrial

testimonial refusals.” N.J. at 61-62, A.2d at 229.

The courts have generally refused to allow a plaintiff

to win his civil case by forfeiture as a penalty to the de-

1. Mahne v. Mahne, 66 N.J. 53, 59, 328 A.2d 228 (1974)

and cases and articles cited therein.

fendant’s good faith exercise of his constitutional rights.

Steinbrecher v. Wapnick, 24 N.Y.2d 354, 248 N.E.2d 419

(1969). The courts have held that a summary judgment

against a defendant is improper solely based upon his

good faith exercise of his privilege, even though an ad-

verse inference may be drawn against him at trial. Grog-

net v. Fox Valley Trucking Service, 45 Wis.2d 235, 172

N.Y.2d 819 (1969).

In attempting to avoid this well-established rule of

due process and constitutional rights, the Commonwealth

Court tried to declare it was merely making an “adverse

inference.” (A.9). The Commonwealth Court took this

tact in an attempt to fit within the rule of many cases

which have held that it is not an unreasonable sanction

to draw an adverse inference against a civil defendant

who asserts the privilege.2 However, this rule is inappli-

cable to the present case since the rule was intended to be

a lesser penalty to the defendant than the usual penalty

to a plaintiff—that of entry of an automatic adverse judg-

ment.3 Not one case cited by the Commonwealth Court

as its basis for “drawing an adverse inference” in the

present case drew such an inference prior to trial on the

merits.4 By this alchemy, the Commonwealth Court tried

to turn an unreasunable sanction into the mere allowance

of an “adverse inference” from the assertion of the privi-

lege.

Since the court below deprived petitioners of a trial

on t e merits of the City’s allegations of its complaints,

2. 8 Wigmore, Evidence 429 (McNaughton Rev. 1961)

n. 14.

3. Kaminsky, Preventing Unfair Use of the Privilege Against

Self-Incrimination in Private Civil Litigation: A Critical Analysis,

39 Brooklyn L. Rev. 121, 144-145 (1972).

4. But cf., Paynes v. Lee, 362 F. Supp. 797 (M.D. La. 1973)

(Inference not even drawn to determine preponderance of evi-

dence).

the City was never forced to sustain its burden of proof

or to present testimony before the trier of fact. Instead,

the court below penalized petitioners for invoking their

right to remain silent by declaring the assertion of the

privilege to be a technical admission5 of the City’s allega-

tions, thereby automatically entitling respondent-plaintiff

to summary judgment against the petitioners.6

The present case presents a divergence from the

generally accepted concepts of Due Process as related to

the assertion of the Fifth Amendment.? The imposition

of this unreasonable penalty upon petitioners’ assertion

of their constitutional rights justifies the granting of certi-

orari to review the judgment of the court below.

2. The Decision Below Is Not in Accord with the Prior

Decisions of this Court Concerning the Government’s

Use of Penalties for the Non-Criminal Invocation of

the Fifth Amendment.

This Honorable Court has established through a long

series of cases that it is unreasonable for a governmental

body to be able to impose automatic penalties against one

who invokes his Fifth Amendment privilege in a “non-

criminal” situation. Garrity v. New Jersey, 385 U.S. 493

(1967); Gardner v. Broderick, 392 U.S. 273 (1968); and

Lefkowitz v. Turley, 414 US. 70 (1973). This Court has

stated that such a penalty would.make such an assertion

5. Pa. R.C.P. 1029(b).

of this rule, shall have the effect of an admission.

. . -

6. Pa. R.C.P. 1034 & 1035.

7. Sewell, The Self-Incrimination Clause And Administrative

Law, 39 Tennessee L. Rev. 207, 236-237 (1972).

10

of the privilege unreasonably costly. Spevack v. Klein, 385

U.S. 518 (1967).

The principal function of the privilege against self-

incrimination

“, « . is to protect all persons, whether suspected

of crime or not, from abuse by the government of its

powers of investigation, arrest, trial, and punishment.

It was not solicitude for persons accused of crime

but the desire to maintain the proper balance be-

tween the government and the persons governed that

give rise to the adoption of these constitutional pro-

visions.”8

For the purpose of insuring a fair procedure in a criminal

trial, the privilege must be liberally construed in favor of

a defendant in a civil suit where the Government is the

plaintiff, or else the Government will accomplish some-

thing that is not permissible at a criminal trial.9 The

Government should not be allowed to accomplish its in-

vestigation by forced self-incrimination through the bring-

ing vf a civil case,10

In the present case, petitioners may face criminal

actions by the City and possible fine or incarceration for

exactly the same alleged activities as set forth in the City’s

civil complaint. Such imprisonment and incarceration

under Pennsylvania law is a criminal action. Pa. R. Crim.

P. 67(a), as amended. By the nature of the Common-

wealth Court’s holding in the present cases, the petition-

ers face either the automatic entry of civil judgments in

the amount of the alleged debts, or the requirement to

waive their constitutional right. As this Honorable Court

stated in Garrity v. New Jersey, supra.

8. Ratner, Consequences of Exercising the Privilege Against

Self-Incrimination, 24 U. Chi. L. Rev. 472, 484 (1957).

9. Id. at 488.

10. Id. at 508-509.

11

“Where the choice is ‘between the rock and the

whirlpool’ duress is inherent in deciding to ‘waive’ one

or the other.” U.S. at 498.

The present case clearly fits within the Garrity-Lefko-

witz decisions where the refusal to waive the Fifth Amend-

ment privilege standing alone without regard to other

evidence results in a costly sanction. This Court should

allow a certiorari to stop this form of governmental abuse

of the civil court system.

3. This Court Has Not Previously Determined the Ques-

tion of Reasonable Sanctions Upon the Defendant in a

Civil Litigation for Asserting His Fifth Amendment

Privilege.

Although this Court has previously decided many

cases concerning what penalties may and may not be im-

posed upon one who invokes the privilege under the Fifth

Amendment, these cases present to this Court for its

initial determination the question of what penalties may

be imposed upon a defendant in a civil litigation who

rightfully invokes his Fifth Amendment rights. This Hon-

orable Gourt has recently broached this question in its

decision in Baxter v. Palmigiano, 425 U.S. 308 (1976).

However, Baxter reviewed the reasonableness of sanctions

that were applied in a different setting—a prison discip-

linary proceedings. Under this Court's decision in Wolff

v. McDonnell, 418 U.S. 539 (1974), it was established

that the due process requirements in such a correctional

procedure were less stringent than in other situations.

Justice Brennan in his dissent in Baxter stated that Baxter

was the first time that the Court had ever approved of civil

sanctions upon a defendant for invocation of the privilege

in any type of non-criminal proceeding. 425 U.S. at 334.

This Honorable Court's decision in Baxter, supra.,

approved the drawing of an adverse inference against an

12

inmate's silence at the disciplinary hearing itself where

the Disciplinary Board had been provided other substan- —

tial evidence on the record as to the prisoner's wrong-

doing. Baxter greatly differs from the present cases in

that the court, prior to the trial on the merits, determined

that the assertion of the privilege was an admission of the

opponent’s allegation; and thereafter, under the Rules of

Procedure automatically entered a summary judgment

against the petitioners. Thus, it is clear that this Court's

decision in Baxter was not determinative of the substantial

constitutional issue involved in the present cases.

Nevertheless, this Honorable Court in its decision in

Baxter set the framework for review of this area of in-

fringement upon the Fifth Amendment. This Court stated

that the prison inmate

“, . . is not in consequence of his silence auto-

matically found guilty of the infraction with which

he has been charged. . . . It is thus undisputed that

an inmate's silence in and of itself is insufficient to

support an adverse decision by the Disciplinary Board.”

425 U.S. at 317 [emphasis added].

Thus, this Court in the Baxter decision did establish a

basis for reviewing the very situation that prevailed in

the cases presented by this Petition.

The Writ of Ceriorari should be allowed to issue so

that this Court can review for the first time the propriety

of sanctions upon a civil defendant for assertion of his

privilege against self-incrimination in light of this Hon-

orable Court's recent tangential review of this issue in

Baxter v. Palmigiano, supra.

13

4. The Decision Below Raises a Significant and Recurring

Problem of the Propriety of Sanctioning a Civil De-

fendant for Asserting His Fifth Amendment Privi-

lege.

The decision of the Commonwealth Court raises the

entire spectrum of questions related to the imposition of

sanctions upon a civil defendant for asserting his consti-

tutional privilege under the Fifth Amendment. The ques-

tion of the propriety and reasonableness of sanctioning

the civil defendant is a recurring one in which there is a

great deal of conflict amongst the various states, circuits

and commentators.!1 Until this Court’s recent decision in

Baxter v. Palmigiano, supra., there had not been any form

of directions supplied by this Honorable Court to the judi-

ciary in this pressing and important question.

Although it is your petitioners’ contention that it is

well-settled law amongst the states that a civil defendant

should not be penalized prior to trial by the automatic

entry of judgment in favor of the plaintiff when the de-

fendant asserts his Fifth Amendment privilege,!2 there

exists a substantial question as to what sanctions are

indeed allowed. In some states, absolutely no comment or

inference may be drawn from the civil defendant's asser-

tion of the privilege.13

Prior to this present decision by the Commonwealth

Court, Pennsylvania would have been considered such a

11. Kaneshiro v. Belisario, 466 P.2d 452, 454 (Hawaii

1970).

12. See, Reason 1 of this Petition.

13. Kaneshiro v. Belisario, supra.; State v. Dist. Ct. of Fourth

Jud. Dist., 426 P.2d 431 (Wyo. 1967); Arthurs v. Stern, 425 F.

Supp. 425 (D. Mass. March 3, 1977); Berg v. Pentilla, 173 Minn.

512, 217 N.W. 935 (1928); State Board of Medical Examiners v.

McHenery, 69 So.2d 592 (La. Ct. App. 1953); Frierson v.

McIntyre, 151 F. Supp. 5 (W.D. Va. 1953); and Mayo v. Ford,

184 A.2d 38 (D.C. Ct. Munic. App. 1962).

14

state. The Supreme Court of Pennsylvania in its decision in

In Re Silverberg, 459 Pa. 107, 327 A.2d 106 (1974), held

that it was a constitutionally impermissible inference to

allow as a prior inconsistent statement the invocation of

the right to remain silent at a pretrial hearing. The Su-

preme Court of Pennsylvania incorporated a passage from

Phelin v. Kenderdine, 20 Pa. 354, 363 (1853), which was

also quoted by this Honorable Court with favor in Johnson

v. United States, 318 U.S. 189, 196-197 (1943), which

stated as follows:

“If the privilege claimed by the witness be allowed

the matter is at an end. The claim of privilege and

its allowance is properly no part of the evidence sub-

mitted to the jury, and no inferences whatever can be

legitimately drawn by them from the legal assertion

by the witness of his constitutional right. The allow-

ance of the privilege would be a mockery of justice,

if either party is to be effected injuriously by it.”

Pa. at 117, A.2d at 112.

Many commentators favor the position that no inference

or comment be allowed against a defendant in a civil case

who asserts the privilege. 14

On the other side of this question there are a sub-

stantial number of states which adhere to the rule that

at trial the plaintiff may make a comment to the jury

and/or the finder of fact may draw an adverse inference

about the civil defendant's invocation of the Fifth Amend-

ment.!5 These are the cases listed by the Commonwealth

Court in its opinion in the case of City of Philadelphia v.

Kenny. There are also commentators who support this

14. Commentaries, Penalizing the Civil Litigant Who Invokes

the Privilege Against Self-Incrimination, 24 U. Fla. L. Rev. 541,

550 (1972); Sewell, supra at 245; and Comments, The Privilege

Against Self-Incrimination in Civil Litigation, 1968 U.Ill. L.F. 75,

78 (1968).

15. See, n.2, supra.

_—-= =—s

15

position on the basis that it is not the assertion of the

privilege which is being penalized, but rather it is a logical

inference from the failure to contradict other evidence on

the record. 16

It may be contended that this Honorable Court’s deci-

sion in Baxter v. Palmigiano, supra., would have settled

this general question by alluding to the “prevailing rule”

that an adverse inference may be drawn against the party

at trial. 425 U.S. at 318. Nevertheless, federal district

courts have already disregarded Baxter, distinguishing it

from civil cases on the basis that it concerned prisoner's

rights.17 One commentator has stated that the holding in

Baxter merely affects a “small class of people” and,

furthermore, criticizes the Court for reducing the prisoner's

privilege to a “hollow mockery”.!8 Therefore, it can be

seen that Baxter has not been read to have settled this

area of law.

This continued conflict over the extent of reasonable

sanctions upon asserting a constitutional privilege justi-

fies the granting of a certiorari to review the judgment of

the court below.

Respect/ully submitted,

KENNETH E. AARON

Counsel for Petitioners

~

16. Ratner, supra at 477 and Kaminsky, supra at 149.

17. Arthurs v. Stern, supra, and Cunningham v. Bronx Cty.

Demo. Exec. Comm., 420 F. Supp. 1004 (S.D.N.Y. 1976) prob.

juris. noted sub nom., Lefkowitz v. Cunningham, 97 S.Ct. 252

(1976) (No. 76-260).

18. Wayne, Prison Disciplinary Proceedings and the Fifth

Amendment Privilege Against Self-Incrimination, 55 N.C.L. Rev.

254, 266 (1977).

Al

Appendix A

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

Ciry OF PHILADELPHIA

v.

JosEepu F. Kenny,

Appellant

City OF PHILADELPHIA

Vv

RAYMOND F. PERCIVAL,

Appellant

City OF PHILADELPHIA

Uv

E. A. THOMAS,

Appellant

CiTY OF PHILADELPHIA

v

Guy W. Harvey, Jr.

Appellant

City OF PHILADELPHIA

v

ABNER B. DECKERT,

Appellant

City OF PHILADELPHIA

v

WILLIAM H. HAZZArRpD,

Appellant

City OF PHILADELPHIA

v.

JAMES SPROLES,

Appellant

No. 409 C. D.

No. 410 C. D.

No. 411 C. D.

No. 412 C. D.

No. 413 C. D.

No. 414 C. D.

No. 653 C. D.

1975

1975

1975

1975

1975

1975

1975

CITY OF PHILADELPHIA

v.

JEROME L. NEWMAN, c/o

Defense Personnel Center

JEROME L. NEWMAN,

Appellant

City OF PHILADELPHIA

v.

FREDERIC JENNINGS,

Appellant

CITY OF PHILADELPHIA

Vv.

Groria T. JoNnEs, c/o

Defense Personnel Center

Groria T. JONEs,

Appellant

CiTy OF PHILADELPHIA

v.

GeorceE V. ScHOocK, c/o

Defense Personnel Center

GrEorGE V. SCHOCK,

Appellant

City OF PHILADELPHIA

v.

GEorGE J. CILONA,

Appellant

CiTy OF PHILADELPHIA

v

CHARLES H. Cross,

Appellant

CITY OF PHILADELPHIA

v.

RONALD O. GAITHER,

Appellant

No. 734 C. D. 1975

No. 735 C. D. 1975

No. 736 C. D. 1975

No. 738 C. D. 1975

No. 959 C. D. 1975

No. 960 C. D. 1975

No. 1006 C. D. 1975

CiTy OF PHILADELPHIA

v. No. 1239 C. D. 1975

ARTHUR E. CoRNELL,

Appellant

CrTy OF PHILADELPHIA

v. No. 1240 C. D. 1975

MEYER GOLDSTEIN,

Appellant

Honorable James S. Bowman, President Judge

Honorable James C. Crumlish, Jr., Judge

Honorable Harry A. Kramer, Judge

Honorable Roy Wilkinson, Jr., Judge

Honorable Glenn E. Mencer, Judge

Honorable Theodore O. Rogers, Judge

Honorable Genevieve Blatt, Judge

Argued: April 5, 1976

Opinion by Judge Kramer Filed: February 8, 1977

These cases involve appeals from the granting of

summary judgments, or, as in several of the cases, judg-

ments on the pleadings against the appellants. The appel-

lants are residents of, or are domiciled in, the State of New

Jersey, but are employed by the Federal Government at

federal establishments inside the boundaries of the City of

Piuladelphia. These appeals are but the latest chapter in

the history of litigation which has been unceasing since

1939, when the City first passed its Wage and Net Profits

Tax Ordinance."

In each of these cases, the City filed a complaint in

assumpsit in the Court of Common Pleas of Philadelphia

County. The complaints are all similar. Each alleged that

the named defendant had not paid the wage tax for the

various years shown on the complaints. Each demanded

1. Philadelphia, Pa., Code, §19-1500 et seq. (1973).

A4

payment of the delinquent taxes plus interest and penal-

ties, pursuant to Section 19508(1) of The Philadelphia

Code, which provides ‘n pertinent part:

(1) If any tax imposed under this Title is not paid

when due, interest at the rate of 42% of the amount

of the unpaid tax and a penalty at the rate of 1% of

the amount of the unpaid tax shall be added for each

month or fraction thereof during which the tax shall

remain unpaid and shall be collected, together with

the amount of the tax.

Each defendant filed an answer in which he or she

denied certain allegations of the complaint, and, as to the

remaining allegations, asserted the privilege against self-

incrimination guaranteed by the Fifth Amendment to the

United States Constitution. Each answer also contained

new matter which alleged that the action was barred by

the statute of limitations and that the City’s wage tax law

was unconstitutional under the Pennsylvania and the

United States Constitutions.

After all pleadings procedure had closed, the City

moved for judgment on the pleadings in its actions against

Defendants Thomas, Percival, Kenny, Hazzard, Harvey,

and Deckert. Judge Paul A. Dandridge entered orders

granting the City’s motion. In the actions against Defen-

dants Sproles, Newman, Jennings, Jones, Schock, Gold-

stein, Cornell, Cilona, and Cross, the City submitted sup-

porting affidavits and moved for summary judgment. The

motions in these cases were assigned to six separate

judges, who heard and granted the motions. We will

affirm the orders of the court below in all 15 of these

appeals.

The primary issues raised by the appellants can be

summarized as follows: (1) Do the appellants’ assertions,

in their answers, of the privilege against self-incrimination

under the Fifth Amendment to the United States Constitu-

tion leave unresolved questions of fact which render judg-

AS

ment on the pleadings or summary judgment inappropri-

ate? (2) Have the appellants adequately denied certain

averments of fact in the City’s complaint, so as to leave

unresolved questions of fact which render judgment on

the pleadings or summary judgment inappropriate?

(3) Does the doctrine of estoppel for failure to exhaust

administrative remedies preclude the appellants from rais-

ing, as new matter, the defenses of unconstitutionality of

the wage tax ordinance and the running of the statute of

limitations? and (4) If the appellants are not precluded

from raising the aforementioned defenses, are there any

unresolved questions of fact which must be answered be-

fore we may rule on the merits of these defenses?

As can be seen, the general thrust of these issues is

a challenge to the appropriateness of judgments on the

pleadings or summary judgments, as the case may be, for

the disposition of these cases. As an appropriate starting

point, we note our conclusion that each of the City’s com-

plaints contains adequate allegations to support a lawsuit

in assumpsit, and, therefore, we are concerned with the

legal sufficiency of the appellants’ answers thereto. Since

the pleadings in all of these cases are similar in all re-

spects material to the application of the relevant legal

principles, quoted portions of the pleadings will be drawn

from the action against Guy W. Harvey for illustrative

purposes.

~

I. DO THE APPELLANTS ASSERTIONS OF THE FIFTH

AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINA-

TION LEAVE UNRESOLVED QUESTIONS OF FACT?

In paragraph 2 of each of the complaints, the City

alleged the defendant's name, the name of his or her em-

ployer, his or her place of employment, and his or her

social security number and account number with the De-

partment of Collections. In paragraph 5 of each complaint,

the City alleged the defendant's income for the years in

A6

question. Each appellant’s answer responded to these aver-

ments by an assertion of the privilege against self-incrim-

ination under the Fifth Amendment to the United States

Constitution.

It is indisputable that the Fifth Amendment privilege

against self-incrimination is applicable to the States via

the Fourteenth Amendment, and that it applies to protect

an individual not only from being compelled to testify

against himself in a criminal prosecution, but also privi-

leges him not to answer official questions in any proceed-

“tng, criminal or civil, where the answer might incriminate

him in future criminal proceedings. Leftkowitz v. Turley,

414 U.S. 70, 77 (1973).

In Pennsylvania, pleadings are conclusive in the ac-

tions in which they are filed. Ham v. Gouge. 214 Pa. Su-

perior Ct. 423, 257 A.2d 650 (1969). Moreover, in the

absence of statutory prohibitions, a party's voluntary testi-

mony or statements made in pleadings or other papers filed

in a judicial proceeding, may be used against him in a

subsequent criminal prosecution. 1 Henry, Pennsylvania

Evidence, §82 (4th ed. 1956); see also Commonwealth v.

Ensign, 228 Pa. 400, 403-4, 77 A. 657, 658 (1910), affd,

227 U.S. 592 (1912); Commonwealth v. Cavanaugh, 159

Pa. Superior Ct. 113, 119, 46 A.2d 579, 582 (1946); Charles

v. Arrington, 110 Pa. Superior Ct. 173, 177, 167 A. 428,

429 (1933). It follows that a defendant in a civil case

must be entitled to assert the privilege in his pleadings,

when allegations in the complaint call for answers which

may tend to incriminate him. See de Antonio v. Solomon,

41 F.R.D. 447 (D.C. Mass. 1966); Ensign, supra; Cava-

naugh, supra. It must be emphasized, however, that the

interdiction of the privilege operates only in situations

presenting the possibility of criminal liability. Hale v.

Henkle, 201 U.S. 43, 67 (1906); Riccobene Appeal, 439

Pa. 404, 268 A.2d 104 (1970).

It is clearly the law of Pennsylvania that the prosecu-

tion for violation of a municipal ordinance is procedurally

A7

a civil case. e.g., Waynesburg Borough v. van Scyoc, 419

Pa. 104, 213 A.2d 216 (1965); Commonwealth v. Ashen-

felder, 413 Pa. 517, 198 A.2d 514 (1964); Philadelphia v.

Home Agency, Inc., 4 Pa. Commonwealth Ct. 174, 285

A.2d 196 (1971). In Philadelphia v. Konopacki, Pa.

Commonwealth Ct. , 366 A.2d 608 (1976), this Court

squarely held that an action for fines for violations of the

wage tax provisions of The Philadelphia Code, §19-500

et seq. (1973), is a civil action. This is not dispositive,

however, for each appellant has cited the case of Phila-

delphia v. Cline, 158 Pa. Superior Ct. 179, 44 A.2d 610

(1945), cert. denied, 328 U.S. 848 (1946), which held that

the defendants in an action in assumpsit for fines for fail-

ure to file returns under the Philadelphia Wage Tax Ordi-

nance could assert the privilege and refuse to testify, and

that no comment could be made upon their silence, nor

could any adverse inference be drawn from it. Cline, supra,

at 184-86, 44 A.2d at 613. We are of the opinion that Cline

was correctly decided, but we conclude that the judgments

granted below in the present cases do not violate the hold-

ing in that case.

The holding in Cline rests upon the proposition that

actions for penalties, even though prosecuted through

modes of procedure applicable to the ordinary civil rem-

edy, may be “criminal” in their nature for Fifth Amend-

ment purposes, e.g., United States v. United States Coin

and Currency, 410 U.S. 715 (1971); Lees v. United States,

150 U.S. 476 (1893); Boyd v. United States, 116 U.S. 616

(1886); Osborne v. First Nat'l Bank, 154 Pa. 134, 26 A. 289

(1893); Boyle v. Smithman, 146 Pa. 255, 23 A. 397 (1892).

As the cited cases point out, in such “quasi-criminal” cases,

the Fifth Amendment privilege is fully applicable; the

defendant may refuse to testify altogether and no adverse

inference may be drawn from such refusal. We agree with

the court in Cline, supra, that an action for fines and im-

prisonment, if said fine is not paid within ten days,’ is

such a “quasi-criminal” case.

2. Philadelphia, Pa., Code §19-508(3) (1973).

A8

However, not all penalties pursued by civil actions are

“quasi-criminal”. A penalty may be primarily remedial, as

opposed to criminal, in character, and, if this is the case,

such guarantees of the Fifth Amendment as the prohibi-

tion of double jeopardy and the privilege against self-

incrimination do not apply. One Lot Emerald Cut Stones

and One Ring v. United States, 409 U.S. 232, 237 (1972);

Rex Trailer Co. v. United States, 350 U.S. 148, 152 (1956);

United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-52

(1943); Helvering v. Mitchell, 303 U.S. 391, 398-405,

404 n. 12 (1938). The penalty sought in the present cases

under Section 19-508(1) is an addition to the appellants’

taxes of one percentum per month for each month the tax

remains unpaid. Such a sanction is primarily remedial in

character. It is provided as a safeguard for the protection

of the revenue and to reimburse the City government for

the heavy expense of investigations, litigation, and other

measures designed to accomplish assessment and collec-

tion of taxes necessitated by the taxpayer's failure or re-

fusal to pay that tax. See Helvering v. Mitchell, supra at

401. The penalty provided in Section 19-508(1) falls, in

our opinion, entirely within the reasoning of the Court in

Mitchell. It should be noted that the Court in that case,

while in the process of concluding that a 50 percentum

addition to taxes owed for fraudulent evasion was a purely

civil sanction, noted that an addition to the tax of one

percentum per month in the case of non-payment was

obviously intended by a Congress as a civil incident of the

assessment and collection of the income tax. Helvering v.

Mitchell, supra, at 405. We believe it likewise clear that the

“penalty” in Section 19-508(1) of this Ordinance was in-

tended by its promulgators as a civil incident of the assess-

ment and collection of the wage tax, and we so hold.

Since we have held the present cases to be completely

civil in nature, they alone provide no grounds to support

the assertion of the privilege by the appellants. However,

as pointed out in the briefs, the appellants may well be

A9

subjected to future proceedings by the City for fines and

imprisonment in default of payment of said fines under

Section 19-508(3) for failure to file returns covering the

tax liability at issue here. Because of their reasonable ap-

prehension of such “quasi-criminal” proceedings, the ap-

pellants were entitled to assert the privilege in these civil

cases. Leftkowitz v. Turley, 414 U.S. 70, 77 (1973). This

does not mean, however, that the effect of the privilege is

the same as if it had been invoked in a criminal or quasi-

criminal case. Although we have discovered no Pennsyl-

vania cases so holding, there is much authority for the

proposition that, while a defendant in a civil case may in-

voke the privilege and it may not be used against him in

any way in a subsequent criminal prosecution, the court

in the civil case may draw any adverse inference which is

reasonable from the assertion of the privilege. Kent v.

United States, 157 F.2d 1 (5th Cir.) cert. denied, 329 U.S.

785 (1946); Paynes v. Lee, 362 F. Supp. 797 (M.D. La.

1973), aff'd, 487 F.2d 1307 (5th Cir. 1974); Stillman Pond,

Inc. v. Watson, 115 Cal. 2d 440, 252 [Sic] 2d 717 (Ct. App.

1953); Simpson v. Simpson, 233 Ga. 17, 209 S.E. 2d 611

(1974); Allen v. Lindeman, 259 lowa 1384, 148 N.W. 2d

610 (1967); Ralph Hegman Co. v. Transamerica Insurance

Co., 293 Minn. 323, 198 N.W. 2d 555 (1972); Morgan v.

U. S. Fidelity and Guaranty Co., 222 S. 2d 820 (Miss.),

cert. denied, 396 U.S. 842 (1969); Harwell v. Harwell,

355 S.W. 2d 137 (Mo. App. 1962}; Mahne v. Mahne, 66

N.J. 53, 328 A.2d 225 (1974); In Re Tesch, 322 N.Y.S. 2d

538, 66 Misc. 2d 900 (1971); Ikeda v. Curtis, 43 Wash.

2d 449, 261 P. 2d 684 (1953); Molloy v. Molloy. 46 Wisc.

2d 682, 176 N.W. 2d 292 (1970); 8 Wigmore, Evidence,

§2272(1)(e) (McNaughton rev. 1961); 8 C.J.S. Witnesses,

§455. We conclude that the rule enunciated in the cited

authorities is sound, and we adopt it. In the present cases,

a reasonable inference to be drawn from the appellants’

assertion of the privilege is that a truthful response to the

relevant allegations of the City’s complaint would fail to

Al0

deny these allegations. See, e.g., Simpson v. Simpson,

supra, at 21, 209 S.E. 2d at 614; Molloy v. Molloy, supra,

at 687 [Sic]. Therefore, we may deem the allegations in

paragraphs 2 and 5 of the complaint to be admitted by

failure to deny specifically or by necessary implication,’

and, therefore, the assertion of the privilege leaves no un-

resolved questions of fact which would render judgment

on the pleadings or summary judgment inappropriate.

3. Pa. R.C.P. No. 1029(b), 43 Pa. C.S.A.

CONCLUSION

Based upon the reasoning and conclusions in Parts I,

II and III of this Opinion, it is the conclusion of this Court

that the pleadings in these 15 cases leave no questions of

unknown or unresolved material fact and that trial on the

merits would be a fruitless exercise. The granting of mo-

tions for judgment on the pleadings, in those cases where

such motions were made, was proper. As for those cases

involving the granting of summary judgment, we find

nothing in the City’s affidavits which would detract from

or conflict with the pleadings in those cases. Therefore, we

hold the granting of summary judgment in those cases to

be likewise proper. We affirm the judgments of the court

below.

/s/

Harry A. Kramer, Judge

All

Appendix B

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

CITY OF PHILADELPHIA

v.

Gorpon MacDona_p,

Appellant No. 1593 Commonwealth Docket 1975

CITY OF PHILADELPHIA

v.

LAWRENCE Rock,

Appellant No. 157 Commonwealth Docket 1976

Berore: Honorable James S. Bowman, President Judge

Honorable James C. Crumlish, Jr., Judge

Honorable Roy Wilkinson, Jr., Judge

ARGUED: October 8, 1976

OPINION

Opinion by Judge Wilkinson Filed March 2, 1977

Defendants appeal from the granting of the City of

Philadelphia's (plaintiff's) motions for judgment on the

pleadings in civil actions to collect the Philadelphia Wage

Tax. PHILADELPHIA, Pa., Cope §19-1500 et seq. (1973).

Because the issues on appeal are identical the cases have

been consolidated. We affirm.

Plaintiff's complaints allege that each defendant was

employed in Philadelphia, failed to file a wage tax return

Al2

for the years 1970-1973, and owed the City unpaid taxes.'

Each complaint further alleges that on information re-

ceived from the defendant's employer an assessment was

made and that the defendant was notified of the assess-

ment and failed to appeal to the Philadelphia Tax Review

Board. In their answers, each defendant denies knowledge

of how the assessment was made and attempts to deny all

other allegations by invoking the Fifth Amendment privi-

lege against self-incrimination. In new matter the defen-

dants contend that that Philadelphia Wage Tax is unconsti-

tutional as applied to themselves and that the City’s claim

is barred by the statute of limitations. Plaintiff filed mo-

tions for judgment on the pleadings which were granted

by the court below.

On appeal, the defendants raise the following issues:

(1) Whether in a civil action the defendants’ answers in-

voking the Fifth Amendment right to remain silent may be

deemed admissions under Pa. R.C.P. No. 1029; (2) if so,

whether defendants should be allowed to amend their com-

plaints; (3) whether certain allegations in plaintiff's com-

plaints are actually conclusions of law to which no answer

is necessary; (4) if not, whether the doctrine of estoppel

for failure to exhaust administrative remedies precludes

defendants from raising defenses based on the statute of

limitations and on the constitutionality of the Philadelphia

Wage Tax; (5) if not estopped, whether the Philadelphia

Wage Tax is constitutionally applied to the defendants,

and whether the actions are barred by the statute of limi-

tations.

This case is similar to our recent decision in City of

Philadelphia v. Kenny et al., Pa.CommonwealthCt. ,

A.2d (No. 409 C.D. 1975, filed February 8, 1977),

and is controlled by it. Judge Kramer's opinion specifically

1. Defendant MacDonald worked at the Philadelphia Inter-

national Airport; his back taxes amount to $2,771.00. Defendant

Rock worked at the Philadelphia Naval Shipyard; his back taxes

amount to $1,084.63.

Al3

rejected issues 1, 4 and 5 so we need not comment on

them here. The only issues remaining for our decision

concern paragraph 6 of plaintiff's complaints and whether

defendants should be granted leave to amend their an-

swers

Paragraph 6 of each complaint reads:

“Based on information supplied by the Federal

Agency to the Department of Collections of the City

of Philadelphia, assessments were made and the De-

fendant was duly notified of such assessments from

which the Defendant failed to file a petition for Review

with the Philadelphia Tax Review Board as permitted

under Section 19-1702 of The Philadelphia Code.”

Each defendant denied knowledge of how the assessment

was made, not whether an assessment was made. Each

defendant then exercised his right against self-incrimina-

tion, refusing to answer further.

The defendants contend that only the allegation that

an assessment was made is an allegation of fact and that

the balance of the paragraph contains conclusions of law

to which refusing to answer cannot be deemed an admis-

sion. We disagree. To establish that defendants failed to

exhaust administrative remedies the City had to allege and,

if denied, prove as facts that an assessment was made,

that the defendants were given notice and that they failed

to appeal the assessment. As a fact, either notice was

given to the defendants or it was not; either the assess-

ment was appealed or it was not. By the. failure to prop-

erly deny these factual allegations the defendants have

admitted their failure to exhaust administrative remedies.

Finally, defendants contend that if the invocation of

the Fifth Amendment is deemed an admission that they

should be granted leave of court to amend their answers

to conform with Pa. R.C.P. No. 1029. Defendants never

petitioned the court below to allow the amendment of their

Al4

answers even though it is within the discretion of the

trial court to grant a party leave of court to amend an

answer during the pendency of a motion for judgment on

the pleadings, Pots Manufacturing Co. v. Loffredo, 235 Pa.

Superior Ct. 294, 340 A.2d 468 (1975), and even after

judgment, when an award has been made and an appeal

taken therefrom. Sheppard v. First Pennsylvania Banking

& Trust Co., 199 Pa. Superior Ct. 190, 184 A.2d 309 (1962).

Because the issue was not raised below we cannot con-

sider it on appeal. Pa. R.A.P. 302.

Accordingly, we will enter the following

ORDER

Now, March 2, 1977, the orders of the Court of

Common Pleas of Philadelphia County, dated October 6,

1975, and December 29, 1975, are hereby affirmed.

/8/

Roy Wilkinson, Jr., Judge

ae

Al5

Appendix C

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Sally Mrvos

PROTHONOTARY

Laura E. Litchard

DEPUTY PROTHONOTARY

Philadelphia, 19107

June 28, 1977

Kenneth E. Aaron, Esq.,

Casper, Davidson, Rutstein & Aaron

Suite 935 Lafayette Bldg..,

Phila., Pa. 19106

Inre: City of Philadelphia v. Joseph

F. Kenny, et al., Petitioners.

No. 2958 Allocatur Docket

Dear Mr. Aaron:

This is to advise you that the Supreme Court has

entered the following Order on the Petition for Allowance

of Appeal in the above-captioned matter:

“June 27, 1977

Denied

Per Curiam”

Very truly yours,

/s/

Sally Mrvos

Prothonotary

SMM: mb

CC: Stewart M. Weintraub, Esq.

Al6

Appendix D

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Sally Mrvos

PROTHONOTARY

Laura E. Litchard

DEPUTY PROTHONOTARY

Philadelphia, 19107

June 28, 1977

Kenneth Aaron, Esq.,

Casper, Devidson, Rutstein & Aaron

Suite 935 Lafayette Building

Phila., Pa. 19106

In re: City of Philadelphia v. Gordon

MacDonald and Lawrence Rock

Petitioners

No. 2973 Allocatur Docket

Dear Mr. Aaron:

This is to advise you that the Supreme Court has

entered the following Order on the Petition for Allowance

of Appeal in the above-captioned matter:

“June 27, 1977

Denied

By the Court”.

Very truly yours,

/s/

Sally Mrvos

Prothonotary

SMM: mb

CC: Stewart M. Weintraub, Esq.