Petition — Brunwasser v. Office of Disciplinary Counsel

Supreme Court brief1979

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Text

FILED

| AUG 16 1979

Mie!

CHAR

. - RODAK, JR., CLERK

In the Supreme Court of the

Unjted States

= ©7204

OFFICE OF DISCIPLINARY COUNSEL,

Respondent

VS.

ALLEN N. BRUNWASSER,

: Petitioner

PETITION FOR WRIT OF CERTIORARI

DIRECTED TO THE SUPREME COURT

OF PENNSYLVANIA

ALLEN N. BRUNWASSER

Attorney for Petitioner

903 B Grant Building

Pittsburgh PA 15219

ee eee aes

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 882-0401

TABLE OF CONTENTS

Petition for Writ of Certiorari Directed to the Su-

preme Court of Pennsylvania ..............

Reference to Official and Unofficial Reports of the

Opinions Delivered in the Courts Below ....

EE LS OR EEE

Statement of Questions Presented for Review ....

Constitutional Provisions, Statutes and Ordinances

EUR ED SHS EI) SS

Concise Statement of the Case Containing the Facts

Material to the Consideration of the Questions

ES SOS GFE

Reasons for Allowance of the Writ:

1. Do the 5th and 14th Amendments to the

Constitution of the United States protect an

attorney from a unique, unexpected and un-

usual interpretation of the ABA Disciplinary

Rules when the Court’s Decision is applied

to his conduct retroactively? ............

2. Does Fifth and Fourteenth Amendment due

process foreclose discipline of a lawyer when

he does what appellate court decisions tell

him he must do in his function as counsel?

3. Does Sixth and Fourteenth Amendment fair

notice foreclose convicting a lawyer of

PAGE

charges which were never made within the

meaning of In Re Ruffalo, 1968, 88 S.Ct.

E2Ee, FOR WC ET ik ace Sone RES 53

4. Does the Participation of former Chief Jus-

tice B. R. Jones, present Chief Justice M. J.

Eagen, Disciplinary Board Chairman Alex-

ander Unkovic and Review Member Carl E.

Glock, Jr. in the pre-formal complaint events

create such a 5th and 14th Amendment

barred appearance of injustice which re-

quires the conviction be reversed within the

meaning of U.S. Ex Rel. Accardi v. Shaugh-

nessy, 1954, 347 U.S. 260, 74 S.Ct. 499? .. 56

5. If the Supreme Court of Pennsylvania

promises review of the disciplinary proceed-

ings de novo, must this promise be fulfilled

within the meaning of 5th and 14th Amend-

PD ora mr heres 59

6. Has the appeal been mooted by the action of

the Board in already imposing discipline on

OU ED RRO oa ea ek ea ee ena 60

CON Sey taeda eet ais Ulta 63

APPENDIX:

Letter, Dated January:27, 1977 .. 2. 6. ccc veces la

Letter, Dated famuadry 23, 1977 2... . 2. we eines 3a

Lether, Thebes Weetee ae GOle san... eee vweacean 6a

Letter, From: G. Wi. Fierris, BOG. 6... . es eas 8a

Lotion, Trae Paee B TUTE oi dike ec cieans 9a

Letter, Dated Ames: 19, TOT) ees ce case lla

Letter; Dated October 2: 1977... oki. we ecina es 14a

Letter, Dated October 6, 1977 ..........2..0.- 16a

Letter, Dated January 18, 1978 ................ 17a

Letter, Dated January 23, 1978 . 0... ccc sesees 20a

Letter, Dated January 30, 1978 ............000. 23a

Letter, Dated Famuary-S7, TOTS oo vice chee cen 25a

Transmittal of Report of Hearing Committee ..... 28a

Letter; Dated Octohér 11, 1978.2... 0.06005. 08 77a

Letter, Dated October 13, 1978 ................ 79a

Letter, Dated October 17, 1978 ............006. 8la

Ce os ees eee en aida bee EN ee 83a

Letter, Dated January 22, 1979 From Nan M.

Cohen to Michael P. Malakoff ............ 86a

Letter, Dated January 22, 1979 From Edward A.

Burkardt to Michael P. Malakoff .......... 88a

Order sur Motion To Dismiss Recommendations of

Disciplinary Board and To Hold Evidentiary

Hearing and for Other Relief .............. 90a

Order sur Motion To Remand to Hearing Com-

mittee for Reopening of Record Within the

Meaning of Disciplinary Board Rule 89.251 .. Qla

Request for Supreme Court Action ...........+-: 92a

Order, Supreme Court of Pa. ........-.-0+eee: 94a

Docket Entries, Action No. 72-968 ............. 97a

TABLE OF CITATIONS

CASES:

Advanced Management Research, Inc. v. Emanuel,

1970, 439 Pa. 385, 266 A.2d 673 .......... 45

Anders v. California, 1967, 386 U.S. 738, 87 S.

Es ee oe ae IE ay A's") aOR Re 52

Appeal of Sullivan County Joint School Board,

1963, 410 Pa. 222, 189 A.2d 249 ......... 60

ili

Batrus’s Appeal, 1942, 148 Pa. Superior Ct. 587,

26 ARS TBR vi. c< ccneesaGucsee eee

Bouie v. City of Columbia, 1964, 378 U.S. 347, 84

St. OT ok snnee baleen eee

Carey v. Carey, 1936, 121 Pa. Superior Ct. 251 ...

Civitello, Jr. v. Commonwealth, Department of

Transportation, 1974, 11 Pa. Commonwealth

Ce. 551, SIS ABP GES sissies as

Com. v. Baker, 1968, 429 Pa. 209, 239 A.2d 201

Com. v. Bellamy, 1977, 380 A.2d 429, 251 Pa.

Supertog Ch. 16 6s cause aes

Com. v. Brady, 1969, 255 A.2d 537, 435 Pa. 229 ..

Com. v. Charleston, 1977, 251 Pa. Superior Ct. 311,

300 A2é 196 in lise ee

Com. v. Liska, 1977, 252 Pa. Superior Ct. 103, 380

A2d 1308... iss jsds cee

Com. v. Pope, 1974, 455 Pa. 384, 317 A.2d 887 ..

Com. v. Slimick, 1977, 33 Pa. Commonwealth Ct.

63, 300 A.2d SOO. 2.3 és deta eee

Com. v. Walker, 1978,

30S A.Da GIT Sk <i ce ae eee

Consolidated Real Estate Company v. Northumber-

land County, 1950, 72 D.& C. 23 ..........

Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476 ....

Cummings v. Missouri, 1866, 71 U.S. 277, 4 Wall

ii Pe ee ee me

ere: ve vb eukinahle ey

Douglas v. Buder, 1973, 93 S.Ct. 2199, 412 US.

Ch eee

Eldredge v. Gourley, 3 Cir., 1974, 505 F.2d 769 .. = 43

Ex Parte Garland, 1866, 4 Wall 333, 71 USS.

I RIES a ee ss ak eee 8 50, 59

Fisler v. Reach, 1902, 51 A. 599, 202 Pa.74.... 42

Fountain Hill Underwear Mills v. Amalgamated

Clothing Workers’ Union of America, 1958,

eS See 43

Friedman v. Rogers, decided February 21, 1979,

ES oi Lary alg th Rk 0:4 0a WS loo 58

Gibson v. Berryhill, 1973, 411 U.S. 564, 93 S.Ct.

ee ee a a ww aie winw se wes 6 58

ae 2 Oe ee oe ee eS eee Se eee 6 PO wo 6.6 8 O68 6 8-8 8

ae Catholic Union of Russian Brotherhoods of

the U.S.A. v. Russin et al., 1940, 340 Pa.

ee ee ye le eee oe 9,39

Greenfield v. Kolea, 1977, 475 Pa. 351, 380 A.2d

Te eS kk whee va 51

Hollinger v. Penn Harris Real Estate, Inc., 1966,

a eww ey 45

Hortonville Joint School District v. Hortonville

Education Association, 1976, 96 S.Ct. 2308,

ed wienéie 60

Howell v. Franke, 1958, 393 Pa. 440, 143 A.2d

ee SANS ci aw au ceweae 45

In Re Ruffalo, 1968, 88 S.Ct. 1222, 390 USS.

ee ee ae ke eS avy ow fw 88 @:2/, 08, 32>

54, 55, 58, 60

In the Matter of Little, 1972, 92 S.Ct. 659, 404

i A tN a gS res wah 52

In the Matter of Rosenbaum, decided April 28,

1978, 478 Pa. 93, 385 A.2d 1329 ......... 54,55

Johnson v. Land Title Bank & Trust Company,

5 s0, Lae ths 2d Gee POL Ol oo aks hens 51

Juzwick v. Ryan Homes, Inc., decided October 27,

SST Ot Td, TORE hv boa dee eeeeees 43

Lamberton National Bank v. Kineston, 1934, 114

Pe Oe GA BOR va oe RE Res 48,49

Lindsey v. Normet, 1972, 92 S.Ct. 862, 405 USS.

Be sii: ee Oe See EER A A A ee ane 59

Linmark Associates, Inc. v. Township of Willing-

boro, 1977, 97 S.Ct. 1614, US. 62

Maness v. Meyers, 1975, 95 S.Ct. 584, 419 USS.

WME. . gate Wgta Castle Sacidie bigs HOES keg BAe 52

Meyer v. Littell, 2 Pa: 170, 1845 .......0.65%..%. 42

Mullaney v. Wilbur, 1975, 95 S.Ct. 1881, 421

Sean We ce we ee cee hee wa eae 50

Nebraska Press Association v. Stuart, 1976, 96 S.Ct.

Se. WET Rhy RN oe ay Beas Ceaee wae 63

Powell v. McCormick, 1969, 89 S.Ct. 1944, 395

Re MR a hes ee al and oe anal 53

Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257 ..... 53

Rosenberg v. Rosenberg, M-226 of 1976 ........ 43

Sherwood Brothers Company v. Kennedy, 1938,

Be NO SOE, BIE ils erin aes ae 45

Simodejka v. Williams, 1948, 360 Pa. 332 ....... 43

Stitzel’s Estate, 1908, 70 A. 749, 221 Pa. 227 .... 42

Stofflett v. Kress, 1941, 47 A. 519, 342 Pa. 332 52

Texas v. Eggerman, 81 Texas 569 .....5....006. 47

Tonuci v. Lennon, 1958, 13 D. & C. 2d 791 .... 45

Turner v. Fouche, 90 S.Ct. 532, 396 U.S. 346 .... 58

U.S. v. Caceres, decided April 2, 1979, —— US.

e FcR . SNe eo ese 53

U.S. v. Seeger, 1965, 380 U.S. 163, 85 S.Ct. 850 51

U.S. ex rel. Accardi v. Shaughnessy, 1954, 347 USS.

DOR, Pa Oa GE. ecko tkee wee heagie neu 4,56

Wargo v. Wargo, 1961, 57 Schuykill 32 ........ 45

Weatherguard Company v. Hallanbaugh, 1961, 8

RAE SEs rk ey ck aa a es 45

Welsch v. Grossman, 1935, Montgomery County,

FF We Ae a RA Oa Oee ie 48

Willner v. Committee on Character and Fitness,

1963; BS SAE. 2175, SIS US. PO ose es essa 55,58

Wortex Mills v. Textile Workers’ Union of America,

1954, 109 A.2d $15, 300 Pa. 3... 2. ccc cane 43

MISCELLANEOUS:

Anderson on Civil Practice, page 192, Pocket

ONE A eatin aide by ckln eas Le aa 47

Oe rr Si ere eee 47

Black’s Law Dictionary, page 197 .............. 47

Standard Pennsylvania Practice Section 151, page

| PPR ae eee re reer Mere gt. the we 48

SE ey SE oi 0 SR 5G SRST RL 60

24 PS: 11-1132) ...... sence eee eee ee eee 60

59 DS; Se awe. agi nedly seen dense, teueaeee 14

Pennsylvania Rule of Civil Procedure, Rule 3202

GUE: pan bebe tha Tae nee Gate 20, 46, 47, 49

Vale Digest, Section 57 .............. ree Raha 59

Webster’s Third New International Dictionary,

RS TDD eisai eae OAs Oe RO 47

vii

PENNSYLVANIA CONSTITUTION:

Article I:

IE ae des ‘vaca a oxo eect ee ee 17, 19, 20

Ne oe ee ee bbe alee a ee ee ee 19

TED ce, Boao ga oak fe wane 17, 19, 20

eR ee ote ad ale a plow Saami arate 19

Re ee AG a Vin oie bee ea 17, 19, 20

SR Ne eS ee ee aes oe 19, 20

Article V:

ta GAG OR MgC Renee Gs aout DMPA gaa et erg 59

CONSTITUTION OF THE UNITED STATES:

ered: Feet on cs oc vc cue a eee 19

Fifth Amendment .......<0ccse<s 4,5, 17, 19, 20,

50, 53, 56, 59

Stn. RE oo ks wk eee ewe eee 4,5, 6, 53

Fourteenth Amendment .......... 4,5, 17, 19, 20,

50, 53, 56, 59

a8 USL. E207 C.. toil eae 3

viii

ee ce ee

cree}

Petition

IN THE SUPREME COURT OF THE UNITED STATES

OFFICE OF DISCIPLINARY COUNSEL,

Respondent,

VS.

ALLEN N. BRUNWASSER,

Petitioner.

PETITION FOR WRIT OF CERTIORARI DIRECTED

TO THE SUPREME COURT OF PENNSYLVANIA

To the Honorable, the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

Allen N. Brunwasser respectfully presents this Peti-

tion for allowance of Certorari to the Supreme Court of

Pennsylvania:

Opinions Below

REFERENCE TO OFFICIAL AND UNOFFICIAL RE-

PORTS OF THE OPINIONS DELIVERED IN

THE COURTS BELOW

The September 25, 1978 opinion of the Hearing Com-

mittee of the Disciplinary Board of the Supreme Court

of Pennsylvania (the Commitee) is unreported. A copy is

appended to this petition (29a). The Hearing Committee

recommendation was unlimited probation and a public

reprimand.

The December 9, 1978 opinion of the Disciplinary

Board of the Supreme Court of Pennsylvania (the Board)

is unreported. It reduced the penalty to a private repri-

mand. It is reproduced at 83a.

The request for Supreme Court action after Petitioner

refused a private reprimand is unreported. It is reproduced

at 92a.

The April 26, 1979, order of Pennsylvania Supreme

Court Chief Justice M. J. Eagen, affirming the action of

the Board, is unreported. It is reproduced at 94a.

The May 10, 1979 order of Chief Justice M. J. Eagen

denying oral argument and reargument de novo before the

entire complement of the Supreme Court of Pennsylvania

is unreported. It is reproduced, 95a.

Jurisdiction

JURISDICTION

This is a disciplinary proceeding brought against a

member of the bar of the Supreme Court of Pennsylvania.

The Committee entered an order directing unlimited pro-

bation for the remainder of Petitioner’s professional life

plus a public reprimand.

After appeal and argument, the Board rejected this

recommendation and reduced the penalty to a private repri-

mand.

Petitioner refused the discipline and the matter was

certified to the Supreme Court of Pennsylvania for de novo

proceedings. On April 26, 1979, without oral argument

or briefing the Chief Justice of the Supreme Court of Penn-

sylvania, Michael J. Eagen, affirmed the decision of the

Board and directed a private reprimand.

A timely, May 7, 1979, motion requesting oral argu-

ment and reargument before the entire complement of the

Supreme Court was rejected by the Chief Justice on May

10, 1979.

Jurisdiction to petition the United States Supreme

Court for certiorari to the Pennsylvania Supreme Court

is founded upon 28 U.S.C. 1257 (3).

Statement of Questions Presented

STATEMENT OF QUESTIONS PRESENTED

FOR REVIEW

1. Do the 5th and 14th Amendments to the Consti-

tution of the United States protect an attorney from a

unique, unexpected and unusual interpretation of the ABA

Disciplinary Rules when the Court’s decision is applied

to his conduct retroactively?

2. Do Fifth and Fourteenth Amendment due process

fcreclose discipline of a lawyer when he does what appel-

late court decisions tell him he must do in his function as

counsel?

3. Do Sixth and Fourteenth Amendment fair notice

foreclose convicting a lawyer of charges which were never

made within the meaning of In Re Ruffalo, 1968, 88 S.Ct.

1222, 390 U.S. 544?

4. Does the participation of former Chief Justice

B. R. Jones, present Chief Justice M. J. Eagen, Disciplinary

Board Chairman Alexander Unkovic and Review Member

Carl E. Glock, Jr. in the pre-formal complaint events cre-

ate such a 5th and 14th Amendment barred appearance of

injustice which requires the conviction be reversed within

the meaning of U.S. ex rel. Accardi v. en 1954,

347 U.S. 260, 74 S.Ct. 499?

5. If the Supreme Court of Pennsylvania promises

review of the disciplinary proceedings de novo, must this

promise be fulfilled within the meaning of 5th and 14th

Amendment due process?

6. Has the appeal been mooted by the action of the

Board in already imposing discipline on June 15, 1979?

Constitutional Provisions Involved

CONSTITUTIONAL PROVISIONS, STATUTES AND

ORDINANCES INVOLVED

This petition involves the Fifth, Sixth and Fourteenth

Amendments to the Constitution of the United States

which declare:

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

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger;

nor shall any person be subject for the same offense

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

be compelled in any criminal case to be a witness

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

property, without due process of law; nor shall pri-

vate property be taken for public use, without just

compensation.” (Fifth Amendment)

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction there-

of, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immuni-

ties of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.” (Fourteenth Amendment)

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an im-

Constitutional Provisions Involved

partial! jury of the State and district wherein the crime

shal! have been committed, which district shall have

been previously ascertained by law, and to be in-

formed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defense.” (Sixth Amendment)

Statement of the Case

CONCISE STATEMENT OF THE CASE CONTAINING

THE FACTS MATERIAL ©rO THE CONSIDERATION

OF THE QUESTIONS PRESENTED

A. Beginning on October 20, 1973, Grace S. Harris,

Esquire (Harris), an Assistant City of Pittsburgh (the

City) Solicitor complained over and over to Disciplinary

Counsel about the professional conduct of Allen N. Brun-

wasser, Esquire (Petitioner) , insofar as it affected her ex-

perience with him in a tax case where she represented the

City and he was the target of her suit.

Petitioner’s problem grew out of his protest to a City

business privilege tax which levied an assessment on pri-

vate attorneys but not those who were government em-

ployed even though the latter were able to contribute this

tax-free income to their non-government employed law firm

associates or partners who then divided it free of tax.

On September 24, 1974, at No. C4-73-351, Disci-

plinary Counsel sent Petitioner a letter asking him to give

his version of the complaints which had been narrowed

to:

(1) Filing a preliminary objection to a rule to

show cause.

(2) Joining equity and trespass in one sum-

mons.

(3) Threatening to sue an assistant in the of-

fice of the Court’s Clerk if he did not remove a default

Statement of the Case

judgment entered in direct violation of a Harris and

Petitioner stipulation.’

(4) Improperly referring to a case involving

the domestic affairs of Eugene B. Strassburger, III,

Esquire (Strassburger) , Harris’s superior in the City

Law Department.”

(5) Requesting, under a statute permitting it,

that counsel for the City file a warrant of attorney

showing their representation was properly authorized

but only filing the original of the pleading in one of

the two pending cases although copies were served

on opposing counsel in both cases. Stated another

way, for some reason the Clerk had only docketed the

warrant of attorney demand in one case although ser-

vice was made in both.

Petitioner filed a written response within twenty days

and the matter laid dormant.

B. At No. C4-76-487, and on January 6, 1977, Pe-

titioner was asked to reply to a complaint filed by Shirley

and Morris Kronzek, claiming he had improperly refused

to endorse two insurance settlement checks totaling

$750.00.

On January 19, 1977, Petitioner explained that his

client of 25 years, Srul Kronzek (Srul), had brought his

son and daughter-in-law in for an opinion on a case which

another lawyer had lost. As was his custom, Srul paid the

fee in post-dated checks.

1 When evidence was taken before the Committee, James F.

Fitzgerald, Esquire, the Clerk’s Solicitor, gave undenied testi-

mony that the Assistant Clerk’s conduct was improper and con-

trary to orders issued both by him and the elected Clerk.

2 This charge was dismissed.

Statement of the Case

Petitioner gave an opinion and went on to settle the

case, but before the insurance checks arrived, Srul died

and his estate, run by Shirley for her three busy executor

brothers-in-law, refused to pay three, Srul-issued, outstand-

ing checks in a total amount of $650.00.

Petitioner claimed he had an attorney’s lien on the

checks (see Greek Catholic Union of Russian Brother-

hoods of the U.S.A. v. Russin et al., 1940, 340 Pa. 295)

and that his client was Srul and not Morris and Shirley.

Shirley was given the two insurance checks and the

three estate checks and promised to have the latter pay its

checks in return for Petitioner’s promise to endorse the

insurance checks. However, she shortly changed her mind

and, after threatening criminal and disciplinary action, de-

manded the insurance checks be endorsed and the estate

checks forgotten.”

At the evidentiary hearing before the Committee, it

turned out that Harris and Kronzek had discussed the dis-

ciplinary case when the former consulted with her con-

cerning a water charge made by the City Water Authority

on which Harris sat.

C. Petitioner Was never able to open the judgment

by default because, instead of petitioning the Court prompt-

3 By way of interest, Shirley and Morris entered an action in

assumpsit against petitioner and when the matter came up for

trial, the calendar control judge ordered the executors in and they

admitted that Shirley was putting family pressure on them not

to pay $650.00 which they wanted to pay. The case was settled

with the understanding that the estate would pay the $650.00 and

petitioner would endorse the insurance checks.

Although petitioner kept his part of the bargain, Shirley and

Morris did not so it was necessary to present a petition to enforce

the settlement. After argument the Court ordered the $650.00

paid and the Kronzeks sent a check by letter dated June 19, 1979.

Statement of the Case

ly, he thought a mistake had been made, awaited the return

of Harris from her vacation and then tried persuasion with-

out success until it was too late.

Harris issued about eight executions but could not col-

lect. One of them, directed against Petitioner’s office, was

served December 14, 1976.

The next day, Harris postponed the sale (t. 1508,

1527, 1528, 1541-1544) and later the Clerk’s Solicitor,

James R. Fitzgerald, advised Petitioner that both he and

the Sheriff’s attorney had decided the levy was illegal and

that no sale would occur so that Petitioner could forget

about it (t. 1347, 1349). And Petitioner did forget about

it.

But on January 5, 1977, while engaged in a trial, Pe-

titioner was advised by his secretary that the City Treasur-

er, Joseph L. Cosetti, a Deputy Sheriff and movers were at

his office to sell and transfer everything including his file

cabinets, with the case files in them, to a warehouse and

thus effectively put him forever out of business (t. 1378-

1383).

Unable to contact either the Clerk’s Solicitor or his

Sheriff counterpart, Petitioner had his daughter, now a

Bryn Mawr student, but then functioning as a legal intern,

file a claim of goods on behalf of the landlord who had a

lien, under Pennsylvania law, for rent due on the lease

which expired April 30, 1977.

This stopped the sale and Administrative Judge of the

Civil Court Division, John P. Flaherty, Jr. (now Justice

Flaherty of the Pennsylvania Supreme Court), staved all

future sales or executions.

So Petitioner had won his case. But Harris, who now

could not collect her improperly entered default judgment,

asked the Board for disciplinary vengeance.

Statement of the Case

Later, another Assistant City Solicitor, who had been

involved on the tax cases, D. R. Pellegrini, Esquire, filed a

complaint charging Petitioner with ethical violation in fil-

ing the claim of goods which stopped the proposed Sheriff

sale.

D. But unknown at the time to Petitioner, powerful

wheels were secretly meshing gears behind the scenes.*

(1) On January 13, 1977, Harris sent a letter

(3a) to then Chief Justice Benjamin R. Jones, but did

not mail a copy (see DR 7-110(B) (2)*) to Petitioner.

(2) On October 2, 1977, Harris sent a letter (14a)

to the present Chief Justice, Michael J. Eagen, without mail-

ing a copy to Petitioner. This communication disclosed a

previous February, 1977 contact but the Chief Justice has

refused to release it and Petitioner is in no posture to fight

about it. But, see March 30, 1977 letter from Allen B. Zer-

foss, Chief Prosecutor, to the Chief’s secretary (5a).

(3) On October 6, 1977, the Chief Justice, in effect,

directed Chief Disciplinary Counsel Zerfoss, whom he

could remove at will, to act (16a).

(4) On January 18, 1978, Petitioner asked (17a)

former Chief Justice Jones, who had resigned to join a

4Most of this was discovered when Petitioner was, after a

unique motion, permitted to look into his administrative file con.

trary to the usual practice in disciplinary proceedings.

5“*(B) In an adversary proceeding, a lawyer shall not com-

municate or cause another to communicate, as to the merits of the

eause with a judge or an official before whom the proceeding is

pending, except: *** (2) In writing if he promptly delivers a

copy of the writing to opposing counsel or to the adverse party if

he is not represented by a lawyer.’’

Statement of the Case

prestigious Philadelphia law firm, for copies of this ma-

terial but that jurist never responded.

Petitioner was able to secure what is included in this

petition by service of a subpoena duces tecum on Alex-

ander Unkovic, then Chairman of the Pennsylvania Dis-

ciplinary Board.

(5) Joseph L. Cosetti, the City Treasurer (Cosetti)

and a member of the bar, complained to the Allegheny

County Bar Association Ethics Committee (t. 1368-1369) ,

the Supreme Court disciplinary people (t. 1357, 1362,

1363, 1365-1366, 1372), the Administrator of the Penn-

sylvania Supreme Court (t. 1373), Carl E. Glock, Esq.,

then Pa. Bar Association President (t. 1375), and talked

the case over with Strassburger (t. 1376).

(6) On July 15, 1977, Alexander Unkovic (Un-

kovic), still Chairman of the Pennsylvania Supreme Court

Disciplinary Board, entered his appearance for Strass-

burger and the firm of Berger, Kapetan & Malakoff, Es-

quires, $607,200.00 fee-seeking lawyers in a class action

filed in the United States District Court for the Western

District of Pennsylvania at Civil Action No. 72-968 (see

docket entry number 204, 97a) .

(a) Strassburger was a behind-the-scenes mover in

the disciplinary case, a witness at the evidentiary hearing

before the Committee (t. 961-1092), and Petitioner’s

main adversary in the tax case which was the seed of this

trouble.°

(b) On July 19, 1977, as a class member, Peti-

tioner filed an objection to the Strassburger and Berger

* Petitioner had also successfully opposed Strassburger in

numerous other major litigation ordered by the City’s Mayor.

Statement of the Case

counsel fees (see docket entry number 215, 97a) and, on

August 19, 1979 (see docket entry number 217, 97a) , Un-

kovic filed on behalf of his clients an answer which raised

as a second defense a severe criticism of Petitioner’s con-

duct in the above-described tax case and other City-oriented

litigation.

226, 97a), petitioner filed a motion to strike the appear-

ance of Unkovic plus his law firm, Meyer, Unkovic &

Scott, because: —

(i) Unkovic’s posture as Chairman of the

Pennsylvania Disciplinary Board was inconsistent

with his representation of Berger and Strassburger

and a veiled threat that petitioner had better back up

in his counsel fee objections.

((a)) Under Rule of Disciplinary Enforcement

17-5(C) (1), the Chairman, on his own motion, has

power to open a file on Petitioner, Berger or Strass-

burger.

((b)) Under Disciplinary Enforcement Rule 17-

5(C) (2) he appoints Disciplinary Counsel and his

staff.

((c)) That a member of his firm is involved on

the same side and has filed a joint answer with Strass-

burger in litigation where Petitioner represents the

opposition (G.D. 77-16349 in Allegheny County

Common Pleas Court, Civil Division) .

((d)) If Berger and Strassberger disclosed un-

ethical conduct to Unkovic in the class action fee

case, he would be required to prosecute them under

Disciplinary Rule 17(C) (1) but would be barred

from doing so under the confidential restriction of

Statement of the Case

ABA Canon 4 and the attorney-client privilege of

17 PS 32 especially if the 22% requested {ee is

declared exorbitant within the meaning of DR 2-106

or an improper splitting prohibited by DR 2-107.

Petitioner cited ABA Informal Opinion 1066,

decided September 19, 1968, to back his motion up.

(ii) Petitioner and Unkovic filed briefs in

which the latter renewed his ethical attack on the

former and in particular his City tax case conduct.

(iii) But on October 11, 1977, Unkovic volun-

tarily withdrew his appearance (docket entry no. 230,

97a) and from that point Berger and Strassburger

have represented themselves.

(7) Unkovic, Harris and Carl E. Glock, Jr., Es-

quire, then cooperated to bring the four above charges to

the posture of a formal written complaint before the

Board.

(a) Glock had been review officer on three of the

four charges but, after making and filing his recommen-

dation on the third, withdrew from that particular case

because of alleged difficulty involving petitioner and his

firm, Reed, Smith, Shaw & McClay, Esquires, the largest

law office in the Western District of Pennsylvania. How-

ever, he left his recommendation in the office of Discipli-

nary Counsel so the review member who succeeded him

could see it.

(b) On July 15, 1977, it should be remembered,

Berger and Strassburger had retained Unkovic, the Board

Chairman, as their personal counsel (docket entry number

204, 97a) in the class action fee request at Civil Action No.

72-968 in the United States District Court for the Western

District of Pennsylvania.

Statement of the Case

together with Strassburger and Pellegrini, had participated

in the tax case, sent a letter to Glock, then President of the

Pennsylvania Bar Association (8a) .

Although Petitioner’s name was not on this communi-

cation, it somehow ended up in his administrative file with

other papers described below, all of which were brought

in by Unkovic under subpoena duces tecum.

(d) Glock then had the letter sent (9a) to J. C.

Ostrow, Esquire, who he said he thought was Board Chair-

man. But it turned out Unkovic had replaced him (11a).

A copy was also sent to Chief Prosecutor Zerfoss.

(ce) On August 15, 1977, Unkovic then sent the

material on to Zerfoss whom he could remove at will

(11a).

Although he had filed an answer and brief directly

related to this problem in the Berger/Strassburger Fed-

eral Court fee proceeding, Unkovic said “I have no idea

what her complaint is, but assume that you would wish

to follow this through.”

E. Zerfoss got the message and on October 17, 1977,

a formal ‘Petition for Discipline’ was filed by him with

the Board. It covered everything except the Pellegrini

claim of goods complaint. It was numbered 43 DB 77.

F. Petitioner objected to the procedures in D and E

in a “Motion to Dismiss Proceeding because of Violation

of the Doctrine of Fair Notice and Due Process of Law”

filed with the Board on or about September 29, 1978.

Petitioner also requested an evidentiary hearing on

possible Unkovic selection of the Committee. He men-

tioned, inter alia, that when a witness at the Committee

Statement cf the Case

- proceedings Unkovic was asked (paragraphs 10-11) if he

had discussed Petitioner’s disciplinary proceeding with

Strassburger in order to determine the Unkovic/Strass-

burger impact on the issuance of the complaint, Unkovic

refused to answer under attorney-client privilege (para-

graph 11), that he was directed to do so but refused (para-

graph 12), and that the Committee avoided the confronta-

tion by later deciding the evidence was irrelevant (para-

graph 13).

Petitioner’s request for an evidentiary hearing was de-

nied (paragraphs 26-29) .

Petitioner raised the Chief Justice Jones and Eagen

problem in paragraph 18 of the petition, asked for an evi-

dentiary hearing about it (paragraph 19), and addressed.

the Harris, Glock, Unkovic, Zerfoss letter interchange in

paragraphs 20-22 and requested an evidentiary hearing in

paragraph 23.

The issue was preserved in Petitioner’s brief filed

with the Disciplinary Board at page 137, in his October

27, 1978 “Brief on Exceptions” filed to the decision of

the Board (pp. 2-3), and in his ‘‘de novo” appeal to the

Chief Justice which followed as of course when he refused

to accept a private reprimand (see March 14, 1979 letter

from Secretary of the Board to the Chief Justice, 92a) .

G. On December 12, 1977, a Committee 4:05,

composed of three out of court lawyers who Petitioner

had never met before, was selected to hear the three

charges covered by No. 43 DB 1977.

Petitioner filed the following motions:

(a) Motion for an open hearing. The Committee

ruled anyone could come but set the hearing at the 36th

Statement of the Case

Floor local Disciplinary Counsel office in the Mellon Bank

Building where a prospective attender would have to run

the gauntlet of an outside hall door and a waiting room,

be admitted through the general office door and then have

the closed door of the hearing room opened by someone

inside.

A room in Federal Court was reserved for the over-

flow. But, of course, only a few of those who would have

preferred the anonymous and convenient entry into a Fed-

eral courtroom were willing to be identified and request

ushering into the closed hearing.

(b) A motion for a pre-trial hearing. This was

held January 6, 1978 and the merit evidentiary hearing

scheduled for January 31, 1978.

plaint because of unconstitutional bias within the mean-

ing of the 5th and 14th Amendments to the U.S. Consti-

tution and Article I, Sections 1, 9 and 25 of the Pennsyl-

vania Constitution.

This pleading pointed out the litigation between Co-

setti, Strassburger, Pellegrini and Harris on one side and

petitioner on the other, observed that Unkovic’s attorney

son represented Cosetti in an election case in which peti-

tioner appeared for his opponent, and the participation by

Unkovic for Strassburger and Berger in the Federal Court

class action where the former said:

“12. Brunwasser’s petition is part of his con-

tinuing campaign of intimidation against government

officials, attorneys and judges who have been in-

volved in suits seeking to require him to pay City

of Pittsburgh taxes.”’ (paragraph 5)

Statement of the Case

Unkovic’s brief, filed on behalf of the fee seeking

lawyers expanded on this allegation (paragraph 10) and

concluded:

* * *

“With this as a prospective, the instant petition

can be seen for what it is—another attempt to harass

and intimidate a member of the City Law Depart-

ment into failing to enforce the tax laws against Mr.

Brunwasser.”’ (paragraph i1)

After observing the possible conflict position between

Unkovic representing his clients in the fee action and be-

ing required to discipline them if they were wrong (para-

graphs 6-9), Petitioner claimed Unkovic bias (paragraph

12), cited disciplinary rules giving Unkovic complete

Board Rule control of the proceedings against him up to

that point, including the power to investigate, appoint all

staff (see also paragraph 20), the Committees and decide

which ones should hear the case against Petitioner, the

power to assign a review member who could overrule dis-

ciplinary counsel, the right to review that decision (para-

graphs 15, 17) and choose the Board Panel members to

whom the Committee decision could be appealed (para-

graph 21).

After confessing lack of facts to prove his bias point

(paragraph 16), and objecting to the Board Rule conclu-

sive presumption that everything had been done correctly

whether it had been or not (paragraph 19), Petitioner re-

quested a complete investigation of Unkovic’s role, made

no direct charges and relied in the first instance on ‘the

appearance of justice” (see wherefore clause) and cited

United States Supreme Court cases for each point.

Statement of the Case

(d) A motion to dismiss because the charges vio-

late the freedom of speech and right to litigate provisions

of the Ist and 14th Amendments to the U.S. Constitution

and Article I, Sections 7, 11 and 26 of the Pennsylvania

Constitution (pages 9A-9F of the petition) and deprive

petitioner, because he is an attorney, of his right to have

the Kronzek matter decided by a jury (paragraph A) and

sanction and chill him for resisting an improper demand

by Morris and Shirley Kronzek plus punish him for ob-

jecting to and attempting to defeat an improper snap judg-

ment, relegate him to second class citizenship just because

he is a lawyer and foreclose giving himself the same

spirited defense he would be obliged to give a client (para-

graph B).

(e) A motion to dismiss because the ABA Disci-

plinary Rules are unconstitutionally vague within the mean-

ing of the 5th and 14th Amendments to the U.S. Consti-

tution and Article I, Sections 1, 9 and 25 of the Pennsyl-

vania Constitution (pages 9F-9G) .

(f) A motion to dismiss because the charges do not

violate the rules (page 9H).

_ (g) A motion to investigate the background under

which the charges were filed (page 9H).

Petitioner then answered on the merits and denied any

conduct which would subject him to discipline.

H. On January 31, 1978, a second petition for dis-

cipline verified by Assistant Disciplinary Counsel on Jan-

uary 25, 1978 was filed with the Board and served on Pe-

titioner February 9, 1978. It grew out of the Pellegrini

matter.

Statement of the Case

This complaint covered the claim of goods filed by

Petitioner “on behalf of’ his landlord to protect the rent

lien for the balance of the term and said the claim was un-

authorized and the levied upon property belonged to pe-

titioner not the landlord.

On February 13, 1978, Petitioner moved to consoli-

date this case with the other one, incorporated by refer-

ence his motions filed at 43 DB 77, complained about

splitting this phase of the case from charges 2 and 3 in

the other case (paragraphs 3-4) and protested (paragraphs

4-7) being tried and judged exclusively by Bar Association

oriented hearing committees and Disciplinary Board mem-

bers as an invidious discrimination violative of the Sth and

14th Amendments to the U.S. Constitution and Article I,

Sections 1, 9, 25 and 26 of the Pennsylvania Constitution

and then detailed how the selection method guaranteed

this result and prevented a fair cross section of the legal

community from sitting in judgment as hearing commit-

tees, review members or as members of the Disciplinary

Board functioning as a Court of Appeals and then request-

ed an evidentiary hearing to prove it.

He also presented other objections which he will

abandon here and answered on the merits arguing that he

did not say he owned the goods under levy and did not

file as attorney for the landlord but only “‘on behalf of

as Pennsylvania Rule of Civil Procedure 3202 (b)* and

controlling cases permit.

7‘*(b) The claim shall be signed by the claimant or some one

his behalf, and shall set forth: e pis

cintensien (1) a list of the property claimed sufficient to identify

it;

(2) an estimate of the value of the property ;

Statement of the Case

At the committee hearing, an executive of the land-

lord said he knew of the claim from the date it was filed

but never raised a protest, all of which Petitioner claimed

to be a ratification.

At the hearing, Petitioner mentioned that he was ad-

mitted February, 1950 and, although he had an extensive

practice extending into fourteen states and all over the

Commonwealth of Pennsylvania, that he had never before

been disciplined or even given an informal admonishment.

Within the time provided by the rules, both Disci-

plinary Counsel and Petitioner filed briefs.

On September 25, 1978, the Committee lodged an

opinion and said, “It recommends Public Censure By The

Supreme Court, With . . . Probation”, (30a-31a) and

in its “Recommended Disposition” said (71a-76a) :

“The four charges against Respondent dealt with

in these proceedings cover essentially three legal mat-

ters, small portions of the time and effort expended

by a very busy trial lawyer over a period of six years,

from 1971 to 1977. The conduct we have found to

violate the Code of Professional Responsibility is

clearly not of the most obvious and flagrant level,

i.e., embezzlement. And yet, there is a thread running

through Respondent’s behavior as evidenced in this

Record which is disconcerting . . . even alarming to

this Hearing Committee.

It seems fair to state that Respondent is not a

lawyer in the conventional mold. Practicing by him-

self out of a small office with minimum staff and fa-

(3) a statement of the source of the claimant’s owner-

ship of the property.”’

Statement of the Case

cilities, he maintains a large and active practice. His

unorthodox methods involve the filing of pleadings,

motions, petitions, briefs and other tools of the pro-

fession in great profusion. His recital of authority is

very extensive, if not always accurate and precise.

His energy and tactics in the representation of

his clients, his frequent resort to personal lawsuits

against others, and his liberal use of appeals have

proved disconcerting and frustrating to many lawyers

and judges. But it must be clear the disciplinary sys-

tem is not a measure of last resort for lawyers and

judges who cannot cope with an energetic and inno-

vative practitioner. Only where a lawyer’s behavior

violates the Code and in so doing has inflicted harm

on his client or has been abusive of the rights of other

litigants, lawyers, judges, or the legal system, should

the diciplinary system be resorted to. The great temp-

tation to use the disciplinary system simply out of

frustration must be avoided. Only conduct actually

amounting to violations should ever merit discipline.

We therefore approached the disposition of these

charges with a resolve on the one hand that the pro-

ceedings not become a weapon against Respondent

by frustrated opponents, but instead, that it be ex-

clusively a forum for measurement of his conformity

with the rules of conduct to which all lawyers are

bound by law and rule. Having determined violations

of the Code occurred, we must now address the .evel

of disciplinary action.

A disciplinary hearing is held to determine the

continued fitness of a lawyer to practice law. In Re:

Alker, 157 A.2d 749 (1960) . Its purpose is not alone,

Statement of the Case

or even principally, to punish, but rather to insure

the present and future protection of others who are

entitled to protection. We have examined the totality

of Respondent’s conduct, as reflected by the evidence

in the Record, since isolated instances of misconduct

may not warrant severe disciplinary sanction. Office

of Disciplinary Counsel vs. Campbell, 345 A.2d 616

(175).

What is the apparent future risk if Respondent

continues to practice law as in the past? Exploring

the thought processes and legal philosophy of Re-

spondent based on an eighteen hundred page Record

offers much assistance in measuring his capacity for

good ... or mischief.

Respondent insisted on representing himself

through a long and involved proceeding despite re-

peated reminding by the Committee that he was en-

titled to legal counsel. For various reasons (cost,

time required to prepare counsel, etc.) he refused.

It is doubtful that the basic fallacy of a lawyer repre-

senting himself will ever be more dramatically demon-

strated than in this case. The technical difficulties in

separating his questions, answers, objections, argu-

ments, etc., were substantial. But the fundamental -

difficulty in applying objective appraisal to emotion-

al issues simply proved too much for him.

Respondent’s view of the proceedings is unortho-

dox. He insisted that Disciplinary Counsel had a duty

to open his files completely, to provide Respondent

with evidence, witnesses and even copies of Respon-

dent’s own exhibits, and to investigate whether wit-

nesses had told the truth. (TR 826, 937). Out of an

Statement of the Case

abundance of caution, the Hearing Committee allowed

Respondent considerable latitude, by giving access

to Disciplinary Counsel’s file, in presenting his case,

in the questions allowed, in allowing him to call wit-

nesses out of order, and in tolerating the mixture of

argument and testimony with which the Record

abounds. All of this contributed to a Record which

was unnecessarily long and burdensome.

Respondent revealed many novel theories relat-

ing to the practice of law. Among these were his view

that a clerk in a public office has a duty to erase and/

or correct entries on public records, even judgments,

on the assertion of error by an attorney (TR 928-9).

This Committee is convinced this is not the law and

indeed is an invitation to such mischief the integrity

of the recording and filing systems might well be im-

paired.

Respondent theorized at one point the Rules of

Civil Procedure were inapplicable because the right

of waiver, reserved by the Court in Pa. R.C.P. 126,

means that no Rule is enforceable until the Court

decides not to utilize its right of waiver. (Respon-

dent’s Brief, Page 97). Such an interpretation is

clearly erroneous, but is so unorthodox as to cause one

to be legitimately concerned about the standards and

practices of its proposer.

Respondent during one vigorous exchange on a

ruling by the Committee expressed the view that,

‘when you are a lawyer, you are a warrior. You are

engaged in war with the other side.’ (TR 801). Un-

expressed was the corrollary that ‘all is fair in...

and war.’ This view is certainly consistent with Re-

Statement of the Case

spondent’s undisciplined behavior revealed in this

record.

Respondent appeared as a supremely confident

attorney who glories in his individuality. He views

with indifference customary rules on keeping records.

Indeed, his record-keeping of client payments is clear-

ly inadequate. Yet he seems unaware, even uncon-

cerned about this, even though this failing was at the

heart of his trouble with the Kronzeks. In matters of

practice, he seems unaware that while his unortho-

dox tactics may rarely equate themselves with bril-

liance, they will most often be merely bad, even dan-

gerous practice, with his clients suffering the ulti-

mate loss.

This Committee believes the above examples

from its experience in this case warrant the judgment

we have reached. Having carefully considered Re-

spondent’s conduct based on the believable testimony

in this case, having carefully observed his conduct in

the course of seven eventful days of hearings, and hav-

ing read and thought through the revelations in his

exhaustive brief, the Committee is brought to the in-

evitable conclusion that this defendant does not fol-

low the law or respect it. He uses it, bends it, twists

it and turns it to achieve his own chosen goals. There

is danger to the private litigants, to officers of the

Court, to the Court itself, indeed to the very system

we describe as the Rule of Law in such disregard and

disrespect. ;

What discipline can be exerted that others may

not suffer the torment of the Kronzeks, the Grzelkas,

yes and of the Harrises and Strassburgers? Can Re-

Statement of the Case

spondent adjust his habits of practice to a more ra-

tional and acceptable pattern? Can he forego the

use of legal process for purposes of harassment?

This Committee has balanced many factors.

These are the first formal charges against him before

the Disciplinary System. Moreover, as Disciplinary

Counsel pointed out in his Brief, Charges 2 and 3

arise out of lawyer-disagreements dating back a num-

ber of years. And yet, Respondent has never made

the Kronzeks, the private complainants, whole by

paying them money clearly due them.* And the sim-

ple truth is that Respondent has played fast and loose

with the legal system, bending it to his own purpose.

Respondent’s attitude toward these proceedings and

the legal system have been extremely negative. One

does not cure an apparent contempt for the law by

a sprinkling of professions of respect, as Respondent

is so wont to do. Accordingly, this Committee recom-

mends ‘Public Censure By The Supreme Court, With

... Probation’ (PRDE §85.8(3)) as the appropriate

discipline to be meted out to Respondent. The Com-

mittee does not believe that any level of private cen-

sure will be sufficiently impressive to Respondent.

But for reasons above noted, neither suspension nor

disbarment at this point seems justified.

Our recommendation of probation reflects our

confidence that a period of observation and orienta-

tion for Respondent will be necessary to assist him

to making necessary adjustments in his mode of prac-

‘ tice.”

* But see footnote 3, supra, and pages 35-37, infra.

Statement of the Case

The only trouble is that your petitioner was not

charged with the conduct found to be so offensive by the

Committee and the testimonial record gave these findings

no support.

Stated another way, your Petitioner was convicted of

charges not made and not proved.

On September 29, 1978, Petitioner filed a “Motion

to Dismiss Proceeding Because of Violation of the Doctrine

of Fair Notice and Due Process of Law”. This pleading

complained that he had been found guilty of charges never

made, relied on In Re Ruffalo, 1968, 88 S.Ct. 1222, 390

U.S. 544 and said:

“1. That on September 25, 1978 a Disciplinary

Opinion and Recommendation was filed by Hearing

Committee 4.05 comprised of Charles C. Keller, Es-

quire, Chairman and Chester H. Byerly and Herbert

Margolis, Esquires, Committee Members.

2. That the findings and charges of the said

Committee exceeded the formal charges filed in the

written complaint and also went beyond the charges

and considered matters beyond the charges all in vio-

lation of Due Process of Law and fair notice as de-

fined by Article I, Sections 1, 9 and 25 of the Penn-

sylvania Constitution and the 5th, 6th and 14th

Amendments to the Constitution of the United States.

In Re Ruffalo, 1968, 88 S.Ct. 1222, 390 U.S. 544.

3. Petitioner then listed the twelve findings

which appear on pages 21-26, supra, of this petition

and concluded:

4. It is apparent that the Committee based its

recommendation on the above matters which not only

were not charged but wete not supported by the tes-

Statement of the Case

timonial record when it said, ‘accordingly, this Com-

mittee recommends public censure by the Supreme

Court with... probation.’

5. Asaresult, the recommendation of the Com-

mittee and its findings in other respects were based

on findings not supported by the record and charges

which were never made all in violation of the re-

quirements of due process and fair notice as defined

by the 5th, 6th and 14th Amendments to the US.

Constitution and Article J, Sections 1, 9 and 25 of the

Pennsylvania Constitution. In the Matter of Ruffalo,

supra.”’

On the same date he also filed a “Motion for Eviden-

tiary Hearing Concerning the Manner in which the Hearing

Committee was Chosen and How They Made the Findings

Described in the Previous Motion Without any Evidence

in the Record and To Determine If Any ex Parte Communi-

cation Was Made by Third Persons to Them at Anytime

Previous to Their Appointment and the Above Decision”’.

In this motion, Petitioner again detailed the Unkovic

role and complained again about the matters detailed in

this petition, supra.

He also filed a ‘Motion to Terminate Proceedings Be-

cause of Appearance of Impropriety”’ which said:

“37. That the Board is respectfully urged to

find that the Committee Members must practice law

and are subject to termination after a period of ser-

vice and will be under the jurisdictional eye of disci-

plinary counsel in regard to their practice both when

they serve as committee members and review officers

and subsequent to the time their service terminates.

Statement of the Case

38. .That since Disciplinary Counsel has the ab-

solute right to dismiss or process a charge in the first

instance, the committee members, no matter how hard

they try, cannot help but be pressured by the fact that

Disciplinary Counsel and his Assistants may in the

future have a decision to make on whether to prose-

cute them or not and therefore cannot help but be

influenced by this subtle pressure.

39. That it is respectfully suggested that the

Committee members and the review officers should

be an Administrative Judge who is not subject to dis-

cipline by a lawyers committee but only by the Board

of Inquiry and Review and who is not subject to any

discretionary judgment by Disciplinary counsel or

any Assistant Disciplinary Counsel.

40. That because of this, Respondent respect-

fully suggests that the hearing process lacks the ap-

pearance of justice, lack of pressure and impartiality

all in violation of Due Process of Law as defined by

the 5th and 14th Amendments to the U.S. Constitu-

tion and Article I, Sections 1, 9 and 25 of the Penn-

sylvania Constitution.

41. That, of course, having no ability to inves-

tigate, Respondent is making no charges but merely

states that the appearance of justice and propriety

requires that practicing lawyers, subject to prosecu-

tion at the discretion of Disciplinary Counsel and As-

sistant Disciplinary Counsel, should not function as

Judges in a Disciplinary proceeding.”

Finally, he filed a “Motion for Evidentiary Hearing

Concerning any Contact Between Disciplinary Counsel,

any Witness and/or Chairman Unkovic” and complained:

Statement of the Case

“53. That Respondent respectfully requests

that an evidentiary hearing be held concerning what

influence, if any, was placed upon Disciplinary

Counsel or Assistant Disciplinary Counsel concerning

the filing and prosecution of the above charges.

54. That an attempt was made to investigate

into this at the Committee level but was denied.

55. That Respondent is making no charges but

has examined his administrative file and many of the

things said against him clearly indicate that it could

only come from outside sources and he believes that

if any pressure was placed on any prosecutor in this

case that it would deprive him of the right to an im-

partial prosecutor all in violation of Article I, Sec-.

tions,1, 9 and 25 of the Pennsylvania Constitution

and*the 5th and 14th Amendments to the Constitu-

tion of the United States.”’

On January 20, 1978, after observing he only obtained

the facts January 16, 1978 at a pre-trial conference where

he was allowed to examine his administrative file, Peti-

tioner filed a motion to dismiss the disciplinary case in

toto.

Although this pleading raised many issues, your peti-

tioner desires to confine himself to:

(1) The ex parte communications between com-

plainant, Grace S. Harris, Esquire, and a former and a

present Pennsylvania Supreme Court Justice the latter hav-

ing, without requested oral argument or briefing, sum-

marily affirmed the recommendations of the Disciplinary

Board (3a, 14a). Petitioner alleged:

“6. That, in addition, communication has been

received to and from the Chief Justice of Pennsyl-

Statement of the Case

vania, Michael J. Eagen and his secretary, Mrs. Ruth

P. Strauss, and, in addition Mrs. Harris, the com-

plainant, indicates in her letter of October 2, 1977

that she communicated directly with former Chief

Justice B. R. Jones concerning this matter.

7. That after clearing with Assistant Disci-

plinary Counsel, Edward A. Burkardt, Respondent

phoned the Office of the Chief Justice in Philadelphia

and requested from Mrs. Strauss that all information

concerning this matter be released. On January 18,

1978, this request was denied by Mrs. Strauss.

8. That a written communication has been sent

to former Chief Justice Jones requesting the same

material. Since this communication was mailed Janu-

ary 18, 1978, no allegation can be made concerning

the result.’

(2) The participation of the former and present

Chief Justice in the processing of a case where either of

them’ would ultimately make the final determination.

Petitioner objected, in a ““Motion to Dismiss Proceed-

ings Because of Lack of Separation of Judicial and Prose-

cution Functions’, that:

“1. The Court and the Board are respectfully

requested to observe the communications to and from

the present Chief Justice and the communications

from Mrs. Harris concerning what she has done.

2. That it is respectfully submitted that the ju-

dicial and prosecution functions have now merged

and that due process of law as defined by Article I,

8 Chief Justice Jones never answered.

® Chief Justice Michael J. Eagen did make the final deter-

sninations in this case (94a, 95a).

Statement of the Case

Sections 1, 9 and 25 of the Pennsylvania Constitu-

tion and the 5th and 14th Amendments to the Con-

stitution of the United States prevent further prose-

cution of this case. [nm the Matter of Schlesinger, 1961,

404 Pa. 584, 172 A.2d 875.

3. That Respondent respectfully suggests that

he would be ill-advised to investigate into any back-

ground of this case because he certainly is in no

position to take an adverse stand against the highly

respected Supreme Court or any member thereof or

criticize or comment on any conduct of any Supreme

Court Justice and in filing this motion he is making

no comment or criticism but only in an orderly and

respectful manner attempting to protect his position

in a proceeding challenging his right to continue as

a member holding the privileged position as attorney

in the Honorable Supreme Court of Pennsylvania, a

position he highly values.

4. That, in addition, it is respectfully submit-

ted the mere inquiry by a member of the Supreme

Court or a member of his staff would have a preju-

dicial to respondent effect which the appearance of

justice requires be resolved by dismissing the petition.

Accardi v. Shaughnessy, 1953, 347 U.S. 261, 266, 74

S.Ct. 499.

Respondent respectfully wants to state again that

in filing this section of the motion he is not in any

way criticizing any conduct of any Chief Justice of

the Supreme Court or any member in the staff of

said Supreme Court Chief Justice but is only, in an

orderly manner, defending himself against what he

respectfully believes to be unfounded disciplinary

charges.”

Statement of the Case

Petitioner also filed a ‘‘Motion to Provide for Sepa-

rate Adjudication of this Motion” and requested that a

separate hearing committee be appointed to receive evi-

dence and adjudicate the problem. He complained:

“5. That Respondent respectfully suggests that

having the merit panel hear the material in this mo-

tion and the bias motion would be a violation of the

right to a fair trial within the meaning of due process

of jaw and Article 1, Sections 1, 9 and 25 of the

Pennsylvania Constitution and the 5th and 14th

Amendments to the Constitution of the United States.”

But on December 9, 1978, after refusing the January

20, 1978 motions, the Board rejected the recommendation

of the Committee and ordered a private reprimand (83a).

On October 27, 1978, Petitioner had also filed a time-

ly ‘Brief on Exceptions” with the Disciplinary Board as

the rules permitted. He reasserted the arguments and posi- |

tions detailed supra. This motion was filed to the findings

of the Hearing Committee but the Board affirmed and, as

indicated, reduced the penalty to a private reprimand.

On February 6, 1979, Petitioner filed a motion ob-

jecting to the publication of the September 25, 1978 Hear-

ing Committee report by his adversaries in the United

States District Court for the Western District of Pennsyl-

vania at C.A. 72-968 all in violation of Disciplinary Board

Rules 17-9, 17-23 and Board Rule 93.102(1) which say

in relevant part:

“Complaint submitted to the Board or counsel

shall be confidential.” (Disciplinary Rule 17-9)

* * *

“All proceedings involving allegations of mis-

conduct by or disability of an attorney, shall be kept

Statement of the Case

confidential until and unless the Supreme Court en-

ters its order for the imposition of public discipline

or the respondent-attorney requests that the matter

be public.” (Disciplinary Rule 17-23).

* * *

“(A) General Rule. Enforcement Rule 17-23

provides that all proceedings involving allegations of

misconduct by or disability of an attorney shall be

kept confidential until and unless: (1) The Supreme

Court enters its order for the imposition of public dis-

cipline. (2) The Respondent requests that the matter

be made public.” (Board Rule 93.102(A) (1) and

(2)). (Emphasis supplied.)

As can be clearly observed, Petitioner had no objec-

tion to an open hearing but did protest publication of the

Committee opinion unfounded on evidence and based on

charges never made.

After observing that he was protesting the counsel

fee claimed by Judge Eugene B. Strassburger, III, Michael

P. Malakoff and the firm of Berger, Kapetan, Malakoff &

Meyer (paragraphs 2 and 3), all previously represented

by Alexander Unkovic, Chairman of the Supreme Court

Disciplinary Board (paragraph 4), he claimed that an

ex parte request for the Hearing Committee report and all

other papers had been made of the Board, that he objected

to release and by October 17, 1978 communication

(81a) was advised nothing would be given. Petitioner

said that, although he asked the evidentiary hearing be

open, this did not cover the opinion, etc.

However, ex parte and without notice, the Board held

a January 19, 1979 secret meeting and directed Disci-

Statement of the Case

plinary Counsel in Pittsburgh to release everything or any-

thing to anyone (paragraphs 8 and 9) (see 86a-89a).

Subsequently, Mr. Malakoff and his firm published

the material in the Federal Court case and were severely

reprimanded by District Judge Hubert I. Teitelbaum for

doing so (paragraphs 10-11), whereupon the report was

impounded.

Although not of record because the Disciplinary Hear-

ing Committee proceedings are over, Malakoff subsequent-

ly published the opinion to a prominent Philadelphia law-

yer and representives of the Gannett Newspaper chain.

Another Attorney, Robert Seewald, representing the

Kronzeks, has obtained a copy of the opinion for publica-

tion.

After objecting to the ex parte and improper past

and future use of the opinion, Petitioner asked the order

be revoked and the opinion be impounded especially since

it goes beyond the charges made and is unsupported by evi-

dence.

The petition was denied (90a) and the Hearing

Committee opinion is now available to anyone for ulterior

use.

Petitioner also filed a February 12, 1979 motion to

remand to the Hearing Committee because of after-discov-

ered evidence.

He said that Shirley and Morris Kronzek had sued

him for the $750.00 insurance money in the Common

Pleas Court cf Allegheny County, Pennsylvania at No.

7069 of 1977 and that, when the case was called for jury

trial, conciliation was attempted by Calendar Control Judge

Nicholas P. Papadakos where the following occurred:

Statement of the Case

(1) An unsuccessful attempt was made to ex-

tort $250.00 from your Petitioner in exchange for the

$650.00 payment by the Estate of Srul Kronzek.

(2) The Judge ordered the executors to appear.

(3) Shirley Kronzek insisted, without giving a

reason, that the executors (all of whom were her

brothers-in-law) not pay but gave no reason for her

demand.

(4) But the executors agreed to pay.

Petitioner also alleged (paragraphs 17-18) that he

now has evidence Shirley Kronzek was and had affirma-

tively used family pressure to prevent payment of the

$650.00 claimed against the estate and thus precipitated

the very situation which led to her disciplinary complaint.

(See fn. 3.) He said:

“18. That your petitioner respectfully suggests

that the resolution of the above dispute and the

conduct of Shirley Kronzek should be considered in

evaluating whether your petitioner has violated any

Canon of Professional Ethics. Stated another way,

Shirley Kronzek, who complained against your peti-

tioner, has affirmatively been successful up to and in-

cluding February 9, 1979 in preventing the Estate

from paying the claim which is justly due and thus

has precipitated the confrontation between herself

and your petitioner.’

He also had obtained evidence that Shirley and Mor-

ris Kronzek did not own the bar/cafe (paragraphs 20-22)

which they claim petitioner was hired to represent.

Stated another way, he wanted an evidentiary hearing

to determine if the cafe/bar originally purchased for

.os

Statement of the Case

Shirley Kronzek by Srul Kronzek was owned by Srul and

the children mere straw parties.

If the latter, Srul, who paid, not Shirley and Morris

Kronzek, would be petitioner’s client and the Shirley and

Morris complaint they were would disappear.

On March 1, 1979, the motion was denied (90a).

On March 14, 1979, the case was certified to the

Supreme Court for de novo disposition (92a) .

On April 26, 1979 the Chief Justice of Pennsylvania

affirmed (94a). A May 7, 1979 motion for oral argu-

ment and argument before the entire Supreme Court

was denied by the Chief Justice on May 10, 1979 (95a).

The Board and the Supreme Court refused to stay the

private reprimand scheduled before the former on June

15, 1979. But Petitioner will argue here that the issues

are still viable and not moot.

Reasons for Allowance of the Writ

REASONS FOR ALLOWANCE OF THE WRIT

1. Do the 5th and 14th Amendments to the Consti-

tution of the United States Protect an Attorney From a

Unique, Unexpected and Unusual Interpretation of the

ABA Disciplinary Rules When the Court’s Decision Is

Applied to His Conduct Retroactively?

DR 7-101 concerns “representing a client zealously”.

The Committee (Opinion, pp. 42a-43a) said, “Thus,

the Respondent violated DR 7-101 (A) (2) and DR 7-

101 (A) (3) by initially failing and later refusing to endorse

the two insurance settlement checks, the proceedings of

which in their entirety belonged to the Kronzeks despite

having been requested by his clients to do so.”

DR 7-101 (A) (2) directs, ‘A lawyer shall not inten-

tionally fail to carry out a contract of employment entered

into with a client for professional services but he may

withdraw as permitted under DR 2-110, DR 5-102 and

DR 5-105.”

DR 7-101 (A) (3) directs, ‘A lawyer shall not inten-

tionally prejudice or damage his client during the course

of the professional relationship, except as required under

DR 7-102 (B).”

DR 7-102(B) concerns disclosure of client fraud

which takes place during the lawyer’s representation and

is irrelevant here.

Reasons for Allowance of the Writ

Petitioner respectfully suggests any lawyer reading the

above canons would never construe them to cover a fee

dispute. They are directed at “representing a client zeal-

ously” which is exactly what was done here.

A case lost by another lawyer was turned around to

one that generated money. Shirley did not say she hired

Petitioner “for representing the Kronzeks on the Duquesne

Light case” generally. She said he was only hired to give

an opinion if future pursuit of the case was worthwhile.

“Q. What was Mr. Brunwasser to do for you?

A. He was to check the transcript of the hear-

ing and give us an opinion on it.

Q. What do you mean by an opinion?

A. He was to read it and give us what he

thought, whether it was worthwhile to pursue the

thing further.” (t. 29)

Petitioner turned his three unpaid fee checks plus the

two unendorsed insurance checks over to her and retained

nothing except the claim his checks be paid.

Petitioner relied on his lien rights apparently granted

by Greek Catholic Union of Russian Brotherhoods of

America v. Russin, 1940, 172 A.2d 402, 340 Pa. 295, after

remand, 1943, 346 Pa. 236, 239 (attorney can assert lien

for fees other than case represented by asset in his posses-

sion) .

Thus, Petitioner did more than he was required to do.

He was too zealous. If he had only given the opinion, his

obligation would have been fulfilled. His successful effort

to recoup the $1,000.00 fee less the costs of the transcript

(t.41) unexpectedly proved his undoing.

Reasons for Allowance of the Writ

DR 9-102 (B) (3) directs:

‘“‘A lawyer shall maintain complete records of

all funds, securities, and other properties of a client

coming into the possession of the lawyer and render

appropriate accounts to his client regarding them.”’

Petitioner advised the Kronzeks the two insurance

checks had arrived and turned them over subject to dis-

position of the fee dispute.

He told them his endorsement was to be withheld un-

til $650.00, given him by the man who had hired him,

was paid and turned all five checks over to them.

Thus, they knew what had been received, had posses-

sion of all of it, and were advised exactly whai Petitioner

wanted.

Petitioner respectfully suggests no lawyer would ever

predict that this canon covers anything other than protec-

tion against stealthful theft by a lawyer of his client’s

funds.

DR 1-102 (A) (6) advises:

‘A lawyer shall not engage in any other conduct

that adversely reflects on his fitness to practice law.”

Petitioner respectfully suggests no reasonable lawyer

would ever predict that an honest fee dispute would bring

him within the ambit of these canons.

DR 102(B) (4) does not exist. But this did not pre-

vent the Committee from deciding Petitioner was in viola-

tion.

However, they may mean DR 9-102(B) (4) which

says:

‘A lawyer shall promptly pay or deliver to the

client as requested by a client the funds, securities, or

Reasons for Allowance of the Writ

other properties in the possession of the lawyer which

the client is entitled to receive.”” (Emphasis supplied.)

Petitioner respectfully suggests the key word is “‘en-

titled’. Not only did he deliver the two insurance checks

but his own three estate checks, endorsed to Shirley, as

well.

He respectfully suggests no reasonable lawyer would

be put on notice that his refusal to also endorse the checks

under the facts in the record, especially when he eventually

prevailed in his argument and received payment in full

June 19, 1979 at the direction of the Calendar Control

Tudge before whom the case was adjusted, would result in

a professional sanction under this rule.

The Committee opinion devotes twenty pages to

charge 2 (pp. 43a-63a) and concludes Petitioner to be

in violation of three disciplinary rulee—DR 7-102 (A) (1),

DR 1-102 (A) (5) and DR 1-102 (A) (6).

DR 7-102 (A) (1) warns that:

“In his representation of a client, a lawyer shall

not file a suit, assert a position, conduct a defense,

delay a trial, or take other action, on behalf of his

client, when he knows or when it is obvious that such

action would serve merely to harass or maliciously

injure another.” (Emphasis supplied.)

Petitioner respectfully suggests that nowhere in these

charges did he represent a client'® and no reasonable at-

torney would know or believe it obvious that what the

1° On page 70a of its opinion, the Committee refused to find

a violation of this rule as charge 4 did not involve represen‘a‘ion

of a client and has thus interpreted the rule exactly opposite in

charge 2 and charge 4.

Reasons for Allowance of the Writ

Committee said he did was ‘‘merely’’ for harassment or

malicious injury.

DR 1-102(A) (5) directs that, ‘‘a lawyer shall not

engage in conduct that is prejudicial to the administration

of justice’ and DR 1-102 (A) (6) forbids him to “engage

in any other conduct that adversely reflects on his fitness

to practice law.”” (Emphasis supplied.)

Petitioner respectfully suggests that no reasonable

attorney reading these two canons would ever predict they

would be applied to what the Committee said was done in

the tax litigation which led to Petitioner’s discipline.

In the assumpsit action, where Disciplinary Counsel

withdrew the charges (Opinion, p. 51a) Petitioner is

criticized for his failure to act by not filing a motion for

sanctions in re the City’s answer to his interrogatories (p.

44a), not filing an answer (p. 44a), not promptly pre-

senting a petition to remove the default judgment (pp.

44a, 50a) and not bringing the interrogatory question to

the attention of the pre-trial Judge (p. 46a).

In the equity case, Petitioner was criticized for not

filing a complaint or obtaining the stay which Judge Sil-

vestri refused to grant (p. 48a), not taking depositions

which Pa. R.C.P. does not require be taken but makes op-

tional (p. 49a) , not placing the case at argument when his

opponent had the same prerogative which he exercised

(p. 49a), not obtaining an order for the filing of a war-

rant of attorney which the statute and case law do not re-

quire (Meyer v. Littell, 2 Pa. 170, 180, 1845; Stitzel’s Es-

tate, 1908, 70 A. 749, 221 Pa. 227, 230; Fisler v. Reach,

1902, 51 A. 599, 202 Pa. 74, 76 (warrant of attorney stat-

ute, 17 PS 1632 and 1633 self-executing and require no

order of court) ).

- es |

Reasons for Allowance of the Writ

In the equity action, he was criticized for filing one

Suit joining equity and trespass rather than splitting them

into two cases even though the pleading was only a sum-

mons and case law permits this practice. Eldredge v. Gour-

ley, 3 Cir., 1974, 505 F.2d 769''; Fountain Hill Underwear

Mills v. Amalgamated Clothing Workers’ Union of Ameri-

ca, 1958, 393 Pa. 385, 393, 143 A.2d 354, 359; Wortex

Mills v. Textile Workers’ Union of America, 1954, 109

A.2d 815, 819, 380 Pa. 3, 12; Curtis v. Loether, 1974, 94

S.Ct. 1005, 1009, Fn. 11, 415 U.S. 189, 196, Fn. 11 (re-

quest for injunction and jury trial for damages in same suit

proper) ; Simodejka v. Williams, 1948, 360 Pa. 332, 333

(joinder rule enacted to avoid multiplicity of suits) .

In the Court of Common Pleas of Allegheny County,

Pennsylvania joinder of equity and trespass has been ap-

proved in two different cases. Rosenberg v. Rosenberg,

M-226 of 1976 (Opinion by Judge Eugene B. Strassburger,

III, who was the complaining party as a lawyer in the dis-

ciplinary case) ; Juzwick v. Ryan Homes, Inc., decided Oc-

tober 27, 1976 at G.D. 76-24212, in an Opinion by Judge

Rolf Larsen who is now a Justice of the Supreme Court of

Pennsylvania.

The Committee says the motivation to harass or mali-

ciously injure must be the “‘sole” motivation of Petitioner

who respectfully suggests the charge must be dismissed if

all they say is true.

Petitioner was finally successful (t. 1509, 1602) in

obtaining an order from Administrative Judge John P.

Flaherty, Jr. (now Justice of the Supreme Court Flaherty)

enjoining the collection of this improperly entered judg-

1 Disciplinary Chairman Unkovie joined the equitable and

legal cases in this claim.

Reasons for Allowance of the Writ

ment by default and the City took no appeal. So, on the

merits, he has prevailed but still must suffer the unjustified

stigma of discipline.

The Committee stamps Grzelka’s conduct as perfect

(t. 16-17, 20) but does not even mention the undenied and

unimpeached testimony of the Clerk’s Solicitor, Jim Fitz-

gerald, that it was both improper and contrary to orders

(t. 1299-1355) and ignored the restrictions placed on

Grzelka’s future conduct concerning Petitioner and any

litigation he had in the office where Grzelka functioned

(t. 79-84, 907-909) .

“Q. Mr. Fitzgerald, if Mr. Grzelka had called

you before the default judgment was entered, would

you have allowed it to be entered without the approval

of the Court after argument with both parties present?

A. No. If I had been called before the judg-

ment was entered, I would have had both of you be-

fore the Court.” (T. 1332-1333)

* * *

“Q. When I made the request to take the judg-

ment off, what was his duty?

A. Healso should have called me.

Q. He shouldn’t have made the decision him-

self, should he?

A. Not on that, no.’’. (Mr. Fitzgerald respond-

ing to interrogation at t. 1314-1315)

* * *

“Q. Upon examination of the stipulation and

the answers to 9, 15 and 16, what was Mr. Grzelka

to do before taking any action on the request for judg-

ment?

Reasons for Allowance of the Writ

* * *

The Witness: He should have called me.”’ (Mr.

- Fitzgerald testifying at t. 1314-1315)

The Committee’s conclusion that equity has no power

to open a judgment by default is contrary to Pennsylvania

case law. Sherwood Brothers Company v. Kennedy, 1938,

132 Pa. Superior Ct. 154.

The Committee says preliminary objections to a rule

to show cause are improper (Opinion, p. 59a) but the

Pennsylvania courts of appeal disagree. Howell v. Franke,

1958, 393 Pa. 440, 143 A.2d 10, 11; Advanced Manage-

ment Research, Inc. v. Emanuel, 1970, 439 Pa. 385, 266

A.2d 673, 675; Carey v. Carey, 1936, 121 Pa. Superior Ct.

251, 253, and the lower Courts are of the same opinion.

Tonuci v. Lennon, 1958, 13 D. & C. 2d 791, 798 (prelimi-

nary objection to rule to show cause why attachment should

not issue treated as answer when no record objection) ;

Consolidated Real Estate Company v. Northumberland

County, 1950, 72 D. & C. 23, 25-26 (preliminary objec-

tion to rule to show cause why property should not be re-

deemed treated as jurisdictional objection when no record

objection even though protest made orally at argument) ;

Hollinger v. Penn Harris Real Estate, Inc., 1966, 39 D. &

C. 2d 201, 205 (preliminary objection to rule treated as

jurisdictional challenge); Wargo v. Wargo, 1961, 57

Schuykill 32, 35 (preliminary objection to rule to show

cause why party should not be substituted considered even

though improper); Weatherguard Company vy. Hallan-

baugh, 1961, 8 Lebanon 188, 189 (preliminary objection,

even though erroneously filed to rule to show cause why

judgment should not be opened considered under Pa.

R.C.P. 126 as an answer; right to answer granted after

preliminary objection dismissed) .

46 ;

Reasons for Allowance of the Writ

In sum, the Committee members, using hindsight, dis-

agreed with Petitioner’s procedures. Com. v. Charleston,

1977, 251 Pa. Superior Ct. 311, 380 A.2d 795, 797. Peti-

tioner respectfully suggests nothing in the above rules

warned him of this risk and, if this decision is approved,

the practice of law will indeed become a jeopardy profes-

sion.

Charge 4 concerned the claim of goods. The person-

al property sale scheduled for Petitioner’s office had been

postponed by Harris (t. 1508, 1527, 1528, 1541-1544)

on December 15, 1976 and declared illegal by the Clerk’s

Solicitor and his Sheriff counterpart (t. 1347, 1349, 1343-

1344, 1346). James R. Fitzgerald, the Clerk’s Solicitor

said:

“Q. Did you tell me that you and Mr. Wolken

came to the decision that the levy was illegal and

should not have been issued in the first place?

A. What I did here is, I also contacted Belletti

and Mrs. Harris, and she was to proceed by petition

and order to permit you to have an opportunity—

whatever you filed—to show that the writ was ille-

gal.”

The instructions were never changed.

“Mr. Byerly: But you haven’t changed your in-

structions to the Sheriff’s Deputy?

The Witness: No, sir, 1 haven’t.”

(Committee Member interrogating Mr. Fitzger-

ald at t. 1349.)

The commentators plus the limited case law in this

area support what Petitioner has done.

Pa. R.C.P. 3202 (b) controls this situation and says:

“The claim shall be signed by the claimant or someone on

his behalf.” (Emphasis supplied.)

Reasons for Allowance of the Writ

Anderson on Civil Practice, page 192 in the Pocket

Parts says, “A property claim in Sheriff’s interpleader must

be signed by the claimant or someone on his behalf.”

Ballentine on page 129, has defined, “behalf” as “in

the name of; on account of; for the benefit, advantage, in-

terest, profit or vindication of”’.

Neither Black nor Ballentine define ‘‘on behalf of”

but Black defines “behalf”? on page 197 as “benefit, sup-

port, defense or advantage”.

Webster's Third New International Dictionary at

page 198 defines “‘behalf” as “in the interest of, as the

representative of”’.

Texas v. Eggerman, 81 Texas 569, 572, discussed Dis-

trict Courts having constitutional jurisdiction ‘‘of all suits

in behalf of the state” and said:

“The word ‘behalf’ means ‘in the name of; on

account of; benefit; advantage; interest; profit; de-

fense; vindication.’ ”

Petitioner would respectfully suggest that the words

“on behalf of” clearly indicate filing a claim in the name

of Oliver Realty Inc., as he has done.

If the Supreme Court wanted Pa. R.C.P. 3202(b) to

be restricted only to an authorized representative of the

claimant, it would have said so. However, it did not. It

said, “some one on his behalf” and it is respectfully sug-

gested that no attorney should be criticized or disciplined

for reading those words and applying them exactly as they

appear.

It would have been a simple matter for the Supreme

Court to say that the claim could only be filed, “by an

authorized representative” or identical language. Respon-

Reasons for Allowance of the Writ

dent respectfully hopes the United States Supreme Court

will not interpret these words in a unique and unexpected

way (see p. of this brief) .

Standard Pennsylvania Practice, Section 151, page

400, says:

“The statute makes no provision as to any for-

malities in the notice of a claim which should be

given, (cases cited) and in the absence of a rule of

Court on the subject of notice to the Sheriff of the

claim of the third person is sufficient. A written no-

tice of claim by a third person has been held suffi-

cient (cases cited). A notice of adverse claim may

be sufficient even if it is signed on behalf of the claim-

ant by a third person.” (Cases cited.) (Emphasis sup-

plied.)

Footnote 3, page 100 says:

“It is not necessary to the validity of a property

claim signed by a third person that the third person

be acting under a power of attorney.”

In Welsch v. Grossman, 1935, Montgomery County,

25 D. & C. 394, 395, a son, who was defendant in execu-

tion, filed a claim on behalf of his mother who was in New

York. He wrote her name without a power of attorney

but the Court held this sufficient and mentioned, 25 D. &

C. at 396, that interpleader was only for the protection of

the Sheriff citing Lamberton National Bank vy. Kineston,

1934, 114 Pa. Superior Ct. 365, in which the dismissal of

a sheriff’s interpleader was reversed after a mother said

some of the execution goods belonged to her.

The Court, in discussing the purpose of interpleader,

said (114 Pa. Superior Ct. at 367):

“The purpose of the preliminary inquiry in inter-

pleader cases .. . is to protect the sheriff not to set-

Reasons for Allowance of the Writ

tle contending titles; that question arises after the

issue is framed... .”

* * *

“*.. . The Court on a preliminary inquiry does

not go into the merits, other than to see that the

claim is ‘not merely colorable, frivolous or collusive,

but may be the basis of bona fide suits... .’ ”

In conclusion, Petitioner respectfully suggests that ‘‘or

someone on his behalf’’ clearly means exactly that, that the

claimant is not required to sign. Rule 3202(b) does not

say someone “authorized on his behalf’’ but merely sets

up a way to bring to the attention of the Sheriff that some

reason exists to hold up the sale pending inquiry. The im-

pact of a rule protecting the landlord on his lease would

have been brought to the attention of the Committee if

they had allowed Petitioner to tell them about his own

personal experience as a former collection lawyer.

Petitioner respectfully suggests no reasonable lawyer

would predict or believe that the relied upon disciplinary

rules would ever be interpreted in this fashion.

Petitioner relied on Harris’s stay of the execution plus

the promise of two fellow lawyers representing the Clerk

and the Sheriff that the levy was illegal and would not

proceed.

When unexpectedly faced with an emergency, he alert-

ed the Sheriff to the landlord’s claim as the law allowed

and respectfully suggests he was not warned by DR 1-

102 (A) (4) or (5), relied upon by disciplinary counsel,

that what he did would be improper. This rule says:

“‘A lawyer shall not engage in conduct involving

dishonesty, fraud, deceit or misrepresentation”’ or “‘en-

Reasons for Allowance of the Writ

gage in conduct that is prejudicial to the administra-

tion of justice.”

Petitioner respectfully suggests nothing was dishonest

or a misrepresentation or deceitful. Everything was done

openly, Petitioner prevailed in the filing of his claim and

justice, under the circumstances detailed in this record,

was served rather than prejudiced. Petitioner respectfully

suggests it would have been a miscarriage of justice for

the sale to go ahead and he be put out of business under

the factual circumstances of this case.

Petitioner respectfully suggests that the Comrittee’s

interpretation of the involved canons, as affirmed by the

Board and Chief Justice Eagen, clearly disclose a unique,

retroactive and unusual interpretation which he could not

possibly foresee, all in violation of the 5th and 14th Amend-

ments to the U.S. Constitution. Douglas v. Buder, 1973,

93 S.Ct. 2199, 412 U.S. 430 (unforeseeable state construc-

tion of criminal statute applied retroactively to punish de-

fendant for past conduct violates fair warning due pro-

cess of 5th Amendment) ; Com. v. Pope, 1974, 455 Pa. 384,

389, fn. 9, 317 A.2d 887, 889; Bouie v. City of Columbia,

1964, 378 U.S. 347, 352, 84 S.Ct. 1697, 1702 approved;

Mullaney v. Wilbur, 1975, 95 S.Ct. 1881, 1885, fn. 10,

421 U.S. 684, 690, fn. 10.

Petitioner also respectfully suggests that the outcome

of this case was a judicial ex post facto law prohibited by

Ex Parte Garland, 1866, 4 Wall 333, 377, 71 U.S. 3353,

377 (attorney disbarment judicial act which court must

perform only for cause; proper conduct cannot be made

improper retroactively) ; Cummings v. Missouri, 1806, 71

US. 277, 325, 4 Wall 277, 325 (Garlana rule includes

state action) .

Reasons for Allowance of the Writ

2. Does Fifth and Fourteenth Amendment Due Pro-

cess Foreclose Discipline of a Lawyer When He Does What

Appellate Court Decisions Tell Him He Must Do in His

Function as Counsel?

A. Petitioner had case authority for everything he

did in the Kronzek and City tax case. He really believed

in good faith that his procedures were proper. No case he

could find or has found, other than his own, advised him

he would be disciplined for doing what the cases said he

could do. He cited these cases in his State Court briefs.

In regard to the charges involving the alleged’ harassment

of charge two, even the Supreme Court of the United States

had advised him that “mere” or “merely” have been de-

fined as “sole” as ‘the sole basis”, U.S. v. Seeger, 1965,

380 U.S. 163, 186, 85 S.Ct. 850, 868.

B. In regard to his obligation to present issues* vig-

orously, he had been advised that even if erroneous it was

proper and his duty to present the issues.

(1) He had been told that he owes his client a

“spirited defense’, Com. v. Bellamy, 1977, 380 A.2d 429,

431, 251 Pa. Superior Ct. 165, and that he had a right to

ask outdated law be repealed. Greenfield v. Kolea, 1977,

475 Pa. 351, 380 A.2d 758, 760; Com. v. Slimick, 1977,

33 Pa. Commonwealth Ct. 63, 380 A.2d 950, 951: Com.

v. Brady, 1969, 255 A.2d 537, 538, 435 Pa. 229, 232.

(2) He had been told that improper motivation is

irrelevant just so the cause of action is good. Johnson y.

Land Title Bank & Trust Company, 1938, 198 A. 23, 329

* Of course, Petitioner does not believe that he went anywhere

near the line of activity permitted by the decisions on which he

relied.

Reasons for Allowance of the Writ

Pa. 241, 242; Stofflett v. Kress, 1941, 47 A. 519, 342 Pa.

332, 335.

(3) He was told that a person representing himself

has the same leeway as an attorney representing that per-

son. In the Matter of Little, 1972, 92 S.Ct. 659, 404 US.

553.

(4) He had been told that lack of merit is not evi-

‘dence of friviolity, Com. v. Liska, 1977, 252 Pa. Superior

Ct. 103, 380 A.24 1303, 1305, fn. 9, even though an ap-

peal court decides the case has no merit and affirms it per

curiam without opinion. Maness v. Meyers, 1975, 95 S.Ct.

584, 591, fn. 7, 419 U.S. 449, 459, fn. 7 (lawyer has right

to press claim “even if it appears farfetched and untenable

and he will be protected”’).

In fact, the Supreme Court advises, 95 S.Ct. at 595,

fn. 16,419 U.S. at 466, fn. 16, that ABA Standards require

courage and zeal on the part of counsel. And further ob-

ith e ill ormi tion

serves that a good faith error will not permit a sanc

against the lawyer who has made it, 95 S.Ct. at 596, 419

U.S. at 467. *

In the area of criminal law, this Court and the Su-

preme Court of Pennsylvania has directed that counsel

must proceed on appeal even though the appeal is frivo-

lous. Anders v. California, 1967, 386 U.S. 738, 87 S.Ct.

1396: Com. v. Baker, 1968, 429 Pa. 209, 239 A.2d 201;

Com. v. Walker, 1978, Pa. Superior Ct. , 393 A.2d

817. .

It is respectfully suggested that these directions have

not been overruled by the disciplinary canons and that no

reasonable lawyer could conclude that they have been.

Cc. A lawyer's disciplinary case 1s quasi-criminal,

In Re Ruffalo, 1968, 88 S.Ct. 1222, 1226, 390 U.S. 544.

- 53

Reasons for Allowance of the Writ

D. Petitioner respectfully suggests and urges the Su-

preme Court of the United States to declare that advising

him that what he was doing was correct and then punish-

ing him for believing it is a due process violation within

the meaning of the 5th and 14th Amendments to the Con-

stitution of the United States. Raley v. Ohio, 360 U.S. 423.

437-438, 79 S.Ct. 1257, 1265-1266 (commission advises

witness he has privilege not to answer; can’t convict him

for taking the advice); Cox v. Louisiana, 379 U.S, 559,

85 S.Ct. 476 (individual told by police he can demonstrate

“near” courthouse; improper to punish them for taking

this advice) ; U.S. v. Caceres, decided April 2, 1979,

USS. , 99 S.Ct. 1465, 1472, fn. 15 and cases collected.

E. Petitioner respectfully suggests this is an unusual

disciplinary case. His enemies have been sufficiently pow-

erful to have him disciplined for winning a case against

them.

He respectfully suggests this is a precedent that should

be stopped in its tracks before the idea of retrying your

victorious opponent in the Disciplinary Board catches

vogue. Powell v. McCormick, 1969, 89 S.Ct. 1944, 1969,

fn. 6, 395 U.S. 486, 531, fn. 60.

3. Does Sixth and Fourteenth Amendment Fair No-

tice Foreclose Convicting a Lawyer of Charges Which were

Never Made Within the Meaning of In Re Ruffalo, 1968,

88 S.Ct. 1222, 390 U.S. 544?

A. At page 25 (60a) of its opinion, the Committee

expresses concern about the impact of charge 2 conduct

upon Petitioner’s clients and worries:

54 }

Reasons far Allowance of the Writ

“ .. but the thought that these consequences

might be visited on an innocent and unknowing client

is a sobering thought this committee must at least

contemplate.”

In its ‘Recommended Disposition” (Opinion pp. 38-

42, 7la-76a) it expands this concern to find him guilty

of conduct never charged nor approved and tells him “Re-

spondent’s attitude toward these proceedings and the legal

system have been extremely negative” (Opinion, page 42,

76a).

B. Both the United States Supreme Court in Ruffalo,

supra, and the Pennsylvania Supreme Court Jn the Matter

of Rosenbaum, decided April 28, 1978, 478 Pa. 93, 385

A.2d 1329, have condemned this type of procedure.

But neither case, brought to the attention of the Com-

mittee, the Board and Chief Justice Eagen, did Petitioner

any good.

C. Although the reprimand was private, the Com-

mittee opinion is available to the general public and un-

limited publication has been allowed by an ex parte Board

decision in which Petitioner was not allowed to partici-

pate. (See letters of October 11, 1978, October 13, 1978

and January 22, 1978, 77a, 79a, 86a).

In his motion for oral argument and argument en

banc, Petitioner raised the issue of the improper release

of the Disciplinary Board opinion (paragraphs 10-14) but

the Chief Justice refused to do anything about it in his May

10, 1979 order (95a).

Petitioner’s request the January 22, 1979 order be re-

versed or a hearing held in which he could make his posi-

tion known was denied.

Reasons for Allowance of the Writ

Since the public is not aware of Ruffalo and Rosen-

baum or what happened in this case, Petitioner respectfully

suggests these authorities have a far greater impact than

they would have on the ordinary case.

The page 25 (60a) and 38-42 (71a-76a) findings

can be distributed everywhere and forever to Petitioner’s

continued prejudice and he can do nothing about it.

Petitioner respectfully suggests that this should not be

allowed and that certiorari should be granted for briefing

and oral argument on this important issue,

The Committee were complete strangers to Petitioner.

He had never heard of them before. How did they obtain

the information which appears in pages 38 and 42 of the

opinion (71a, 76a). Petitioner respectfully suggests that

Willner v. Committee on Character and Fitness, 1963, 83

S.Ct. 1175, 1181, 373 U.S. 96, 105, applies (lawyer’s ad-

mission to bar prevented by ex parte evidence presented

to Hearing Committee; procedures condemned) .

Petitioner also respectfully alerts the Supreme Court

of the United States that when Ruffalo petitioned for cer-

tiorari in his State Disciplinary problem, he did not raise

the issue of fair notice and, therefore, that the case found

in 85 S.Ct. 328, 379 U.S. 931, would not foreclose cer-

tiorari directed to the State Supreme Court in this case.

Reasons for Allowance of the Writ

4. Does the Participation of Former Chief Justice

B. R. Jones, Present Chief Justice M. J. Eagen, Disciplinary

Board Chairman Alexander Unkovic and Review Member

Carl E. Glock, Jr. in the Pre-Formal Complaint Events

Create Such a 5th and 14th Amendment Barred Appear-

ance of Injustice Which Requires the Conviction Be Re-

versed Within the Meaning of U.S. Ex Rel. Accardi v.

Shaughnessy, 1954, 347 U.S. 260, 74 S.Ct. 499?

A. Harris’s charge against Petitioner was made in

October, 1973. Nothing happened until she ex parte com-

municated with then Chief Justice Jones and later present

Chief Justice Eagen.

B. Her communication to Carl Glock, Jr., Esquire,

then President of the Pennsylvania Bar Association, who

had also functioned as Review Member in three of Peti-

tioner’s disciplinary cases, helped to get the ball rolling

when Unkovic was also Chairman of the Supreme Court

Disciplinary Board and, as indicated by the Federal Court

docket entries, also counsel for Berger and Strassburger,

Petitioner’s powerful opponents.

C. The limited material Petitioner has been able to

accumulate is partial evidence of what happened behind

the scenes.

D. Petitioner is well-aware of the danger awaiting

his comment on this material. So he will make none but

respectfully requests that the mere existence of it is suffi-

cient to void the decision against him. U.S. ex rel. Accardi

vy. Shaughnessy, 1954, 347 U.S. 260, 266, 74 S.Ct. 499,

503 (decision of independent immigration board reversed

when opinion of Attorney General, who can appoint and

remove them at will, is brought to their attention before

Reasons for Allowance of the Writ

adjudication entered; same result necessary even though

Board would rule against defendant without attorney gen-

eral opinion) .

E. Petitioner raised this issue before the Committee

(t. 592-594, 596, 597, 662, 742-743) as soon as he be-

came aware of it, in his exceptions filed with the Board

and preserved it by refusing to accept the reprimand which

caused the case to be certified to Chief Justice Eagen and

also in his motion for oral argument and argument en

banc (paragraphs 6, 8 and 9).

His request for an evidentiary hearing and investiga-

tion made in his September 29, 1978 board motion was

summarily denied.

F. Rule of Disciplinary Enforcement 17-5 (c) (2)

gives Unkovic the right with other members of the Board

to appoint Chief and Assistant Disciplinary Counsel, their

pie and all hearing committees and to generally run the

show.

As a matter of practical procedure, Unkovic does it

himself by Supreme Court Rule 17 and Board Rule

93.23 (a) (9) delegation plus the authority given under

Board Rule 87.33 (c) right to appoint hearing committees

and disciplinary counsel review member and Board Rule

93.29(a) and (b) right to assign the cases and appoint

Hearing Committee Chairman.

G. Inhis February 13, 1978 “Motion to Dismiss and

for Other Relief’’, Petitioner objected to the invidious dis-

crimination of being tried by bar association chiefs as re-

quired by Supreme Court Rule 17-5 (c) (9) which says:

“The Board shall, to the extent it being feasible,

consult with officers of local bar associations in the

Reasons for Allowance of the Writ

counties affected concerning any appointment to

which it is herein authorized to make.”

Petitioner relied upon Gibson v. Berryhill, 1973, 411

U.S. 564, 93 S.Ct. 1689 and Turner v. Fouche, 90 S.Ct.

532, 396 US. 346.

Petitioner respectfully suggests that the entire disci-

plinary procedure in Pennsylvania is establishment con-

trolled and the creature of Bar Association oriented law-

yers. He is not a Bar Association lawyer and respectfully

objects to being tried by his competitors and those who do

not share his posture at the bar. Friedman v. Rogers, de-

cided February 21, 1979, 99 S.Ct. 887, 898 (right of fair

hearing in disciplinary charges discussed; appeal court can

examine personal interests of regulatory board but princi-

ple not applied because case not disciplinary oriented) .

H. Petitioner respectfully suggests that he has a

right to an evidentiary hearing in order to investigate the

impact of at least Unkovic and Glock in this situation.

He takes the position that powerful opponents are out to

destroy him just as did the successful petitioner in Willner

v. Committee on Character and Fitness, 1963, 83 S.Ct.

1175, 1179, 373 U.S. 96, 101, and he respectfully suggests

that the only method to resolve this is to have Mr. Unkovic

and Mr. Glock plus Miss Harris and others involved sworn

and asked exactly what participation took place when Peti-

tioner was not available to observe it.

Petitioner in Ruffalo, as shown by page 14 of that

brief filed at 85 S.Ct. 328, 379 U.S. 931, also took the

position that the unusual procedure of convicting him on

a charge never made was caused by powerful railroads at-

tempting to remove him from practice.

Reasons for Allowance of the Writ

5. If the Supreme Court of Pennsylvania Promises

Review of the Disciplinary Proceedings de Novo, Must

This Promise Be Fulfilled Within the Meaning of 5th and

14th Amendment Due Process?

A. A state is not required to give an appeal but

“when an appeal is afforded, however, it cannot be grant-

ed to some litigants and capriciously or arbitrarily denied

to others without violating the Equal Protection Clause.”’

Lindsey v. Normet, 1972, 92 S.Ct. 862, 876, 405 U.S. 56,

77.

B. Article V, Section 9 of the Pennsylvania Consti-

tution gives the right of appeal from an administrative or

non-court agency to a court and gives it as a matter of

right.

“There shall be a right of appeal in all cases to

a court of record from a court not of record; and there

shall also be a right of appeal from a court of record

or from an administrative agency to a court of record

or to an appellate court, the selection of such court

to be as provided by law; and there shall be such

other rights of appeal as may be provided by law.”

C. The Supreme Court of Pennsylvania, in every

reported case, has clearly indicated that a lawyer disci-

plined by a hearing committee and/or the Disciplinary

Board has an absolute right of appeal de novo. Section 57

of Vale Digest, Attorney-Client, collects cases on discipline

in the Supreme Court of Pennsylvania and each one says

the review is de novo.

Petitioner also respectfully suggests that since disbar-

ment or discipline is a judicial act, that a court decision

is required. Garland, supra, Supreme Court Rule of Dis-

ciplinary Enforcement

Reasons for Allowance of the Writ

D. The distinction between a de novo hearing and

one in which the appeal court merely examines the record

to determine if it is correct is clear. Ruffalo, supra, 88 S.

Ct. at 1225, 390 US. at 549.

The Pennsylvania Courts of Appeal have determined

that “de novo” means an entirely new proceeding. Con-

trast Appeal of Sullivan County Joint School Board, 1963,

410 Pa. 222, 189 A.2d 249, with Batrus’s Appeal, 1942,

148 Pa. Superior Ct. 587, 595, 26 A.2d 121, 124, where

26 P.S. 1126(j) gives an employee teacher a de novo

hearing but not the employer school board.

Appeal of Sullivan County, supra, observed that the

non-de novo hearing for the Board only gives a determina-

tion on appeal if discretion was abused whereas the em-

ployee de novo appeal under 24 P.S. 11-1132 (b) gives the

employee an entirely new hearing. See also: Civitello, Jr.

v. Commonwealth, Department of Transportation, 1974,

11 Pa. Commonwealth Ct. 551, 556, 315 A.2d 666, 667.

The Supreme Court is bound to accept the interpreta-

tion by the State Supreme Court of its own law. Horton-

ville Joint School District v. Hortonville Education Asso-

ciation, 1976, 96 S.Ct. 2308, 2312, 426 U.S. 482, 488.

Petitioner respectfully suggests that when the Supreme

Court says he gets a hearing de novo that this is not pro-

vided by the summary affirmance of the Board by an opin-

ionless order of the Chief Justice, apparently acting alone.

6. Has the Appeal Been Mooted by the Action of the

Board in Already Imposing Discipline on June 15, 1979?

Petitioner requested both the Board and the Supreme

Court of Pennsylvania to withhold discipline pending peti-

Reasons for Allowance of the Writ

tion for certiorari te this Honorable Court. However, these

motions were denied and discipline was imposed by giving

a private reprimand in Harrisburg before the Board on

June 15, 1979.

Petitioner respectfully suggests that the receipt of dis-

cipline does not moot his appeal.

A. The stigma of discipline after thirty years of

blemishless practice is a mark against the reputation of

your Petitioner especially since the opinion can be widely

disseminated by order of the Board affirmed by the Su-

preme Court.

B. Although it is not a matter of record, petitioner

has been an affirmative target of Disciplinary Counsel in

his district. These lawyers have been affirmatively solicit-

ing people to file complaints against him. For example:

(1) On June 9, 1976, Korey discharged your Pe-

titioner as its lawyer and retained Alexander Unkovic in

a case called Korey v. Korey subsequent to which a disci-

plinary complaint was filed at No. C4-76-430 on January

27, 1977 requesting that the fees paid to Petitioner by

Korey be disgorged.

Mr. Unkovic was Chairman of the Disciplinary Board

at the time but the charges were dismissed on December

30, 1977.

(2) On February 14, 1978, John E. Quinn, Esquire,

Assistant Disciplinary Counsel, actually solicited Irving

Bails, Director of the Neighborhood Legal Service, to file

a complaint against your Petitioner. However, this attor-

ney refused to do so.

Reasons for Allowance of the Writ

(3) At C4-76-507, nine charges were made concern-

ing improper procedure. The complaint was dismissed on

December 30, 1977.

Upon inquiry being made concerning how these

charges were solicited, Disciplinary. Counsel on October

13, 1977 said-he could not figure out how the charges ever

got started. Obviously, they were produced sua sponte

by Disciplinary Counsel under Board Rule 87 (b).

(4) At No. C4-77-420, a letter of December 7, 1977

advised petitioner on his request, that sua sponte an in-

vestigation was Open concerning a case called Black v. Co-

setti. However, the charges were dismissed on December

2, 1977 as unfounded.

(5) On December 23, 1977, Disciplinary Counsel,

as requested by Petitioner, advised that at C4-77-379 a

sua sponte file had been opened on Petitioner involving

charges having nothing to do before the Supreme Court at

the present time.

C. Petitioner thus respectfully suggests that with the

Disciplinary Board affirmatively looking to put him in

trouble that what has occurred in this case will reoccur

and might evade review and, therefore, he respectfully

suggests that the receipt of punishment has not mooted his

appeal both because of the professional and personal stig-

ma which has widely been disseminated in the media, the

release of the hearing committee opinion and the risk that

it will happen again so that the procedural problems

should be adjudicated. Linmark Associates, Inc. v. Town-

ship of Willingboro, 1977, 97 S.Ct. 1614, 1615, fn. 1,

US. ; Gilligan v. Morgan, 1973, 93 S.Ct. 2440,

Reasons for Allowance of the Writ

2443, 413 U.S. 1,5; Nebraska Press Association v. Stuart,

1976, 96 S.Ct. 2791, 2797, 427 U.S. 539, 548.

Petitioner respectfully suggests that, in the event the

Supreme Court of the United States believes merit exists

in this petition, certiorari should be granted and the issues

determined. Otherwise the Disciplinary Counsel and the

powerful establishment enemies of your Petitioner will

only be encouraged to continue on with sua sponte inves-

tigation of matters that have absolutely nothing to do with

the disciplinary rules but do expend the time of your Pe-

titioner and divert him from his other professional obliga-

tions.

CONCLUSION

Petitioner respectfully requests the Supreme Court of

the United Siates to grant Certiorari.

Respectfully submitted,

ALLEN N. BRUNWASSER,

Attorney for Petitioner

Letter, Dated January 2”, 1977

APPENDIX

SUPREME COURT OF PENNSYLVANIA

464 City Hall

Philadelphia, Pa. 19107

Benjamin R. Jones January 27, 1977

Chief Justice

Disciplinary Board

100 Pine Street

P. O. Box 806

Harrisburg, Pa. 17108

Gentlemen:

Chief Justice Jones has asked me to refer to you for

reports the enclosed copy of letter dated January 13, 1977,

from Attorney Grace S. Harris concerning a complaint

against Allen N. Brunwasser, Esquire, and copy of letter

dated January 14, 1977, from concerning

a complaint against , Esquire.

Sincerely,

(s) (Mrs.) Ruth P. Strauss

Ruth P. Strauss

Secretary to Mr. Chief Justice

Benjamin R. Jones

Enclosures

Letter, Dated January 27, 1977

Received

Jan 28 1977

The Disciplinary Board

of the

Supreme Court of Pennsylvania

Letter, Dated January 13, 1977

GRACE S. HARRIS

Attorney at Law

6567 Bartlett Street

Pittsburgh, Penna. 15217

Area Code 412

421-9624

255-2014

January 13, 1977

The Honorzole Benjamin R. Jones

Chief Justice, Supreme Court of Pennsylvania

464 City Hall

Philadelphia, Pennsylvania 19104

In Re: District 1V Office,

Disciplinary Board, File #C4-73-351

Dear Justice Jones,

In October of 1973, shortly after he filed frivolous

personal actions against me and a clerk of the prothono-

tary’s office for performing our legal duties as public ser-

vants, I filed a complaint with the District IV office of the

Disciplinary Board against Allen N. Brunwasser, Esq.

Although Mr. Brunwasser’s violations of the Code of

Legal Ethics have grown more flagrant and more numerous

in the three and one-quarter years that have elapsed and

although many persons have offered additional documen-

tary evidence to the Board to support my complaint, the

Board has not yet acted. It was not until I threatened to

take legal action to compel movement on my file that the

office required Mr. Brunwasser to answer my charges, and

that was a year ago October.

Letter, Dated January 13, 1977

Mr. Burkhardt and his staff have been exemplary in

investigating and acting on other matters. I cannot under-

stand how they can delay acting in this case, when so

many people have sent evidence of Mr. Brunwasser’s con-

tinuing serious violations. I have complained to Mr. Burk-

hardt on many occasions about the Board’s failure to act;

I feel as if I am turning into a nag. Can you discover the

source of the Board’s reluctance to act in this particular

matter?

Thank you for your cooperation.

Very truly yours,

(s) Grace S. Harris

Grace S. Harris

gsh/m

Respondent’s Exhibit Q.

D.N. West

2/2/78

Letter, Dated March 30, 1977

THE DISCIPLINARY BOARD OF THE SUPREME

COURT OF PENNSYLVANIA

100 Pine Street

P. O. Box 806

Harrisburg, Pennsylvania 17108

(717) 232-7525

March 30, 1977

Chief Disciplinary Counsel

Allen B. Zerfoss

Assistant Disciplinary Counsel

John R. Arney, Jr.

Edward A. Burkhardt

Deborah A. Cackowski

Roger E. Craska

John W. Herron

Gary Lawlor

Charles F. Lieberman

Samuel D. Miller, III

Jeffrey P. Paul

Received

Apr 01 1977

The Disciplinary Board

of the

Supreme Court of Pennsylvania

: Letter, Dated March 30, 1977

Mrs. Ruth P. Strauss

Secretary to Mr. Chief Justice

Michael J. Eagen

Supreme Court of Pennsylvania

464 City Hall

Philadelphia, Pennsylvania 19107

Re: Complaint Against Allen N. Brunwasser,

Esquire (C4-73-351)

Dear Mrs. Strauss:

In response to your follow-up call yesterday to Mrs.

Nan M. Cohen, Secretary of the Disciplinary Board, and

your previous letter dated January 27, 1977 to the Board

I provide the following information concerning the com-

plaint of Grace S. Harris, Esquire, against Allen N. Brun-

wasser, Esquire. 7

The matter of Ms. Harris’ complaint was the subject

of review referred to a “Reviewing Member” of a hearing

committee in the latter part of last year and approved by

such member for prosecution of formal charges. For a

number of reasons the Petition for Discipline has not been

filed to date among which are the resignation in December

1976 of the Assistant Disciplinary Counsel (Roger Craska,

Esquire;—position still not filled) to whom the case was

assigned; the heart attack of the Assistant se

Counsel-in-Charge of District IV, Edward A. wes :

Esquire, early in January (expected return mid-April) ; on

the fact that other charges against Mr. Brunwasser were the

subject of investigation and possible inclusion for hearing

with the Harris charge. |

The complaint of Ms. Harris it should be noted is a

rather complex one which will become apparent to any one

“oe

Letter, Dated March 30, 1977

reviewing the voluminous file in this matter. We anticipate

a bitter hearing with a determined defense presented. We

can not predict the outcome but since the matter may even-

tually be presented to the Supreme Court for adjudication,

I decline at this time to provide the form DB-3 analyzing

the case and containing the “Reviewing Member’s”’ deter-

mination and the basic file unless the Court directs me to

do so.

I suggest you inform Ms. Harris that her complaint

has been approved for prosecution of formal charges and

that a Petition for Discipline will probably be filed con-

cerning her charge in April 1977 according to present

plans. A hearing should follow shortly thereafter.

I trust this will serve adequately as the report you

requested.

With kind personal regards.

Very truly yours,

(s) A.B. Zerfoss

A.B. Zerfoss

Chief Disciplinary Counsel

ABZ/jb

cc: Edward A. Burkhardt, Esquire, Assistant Disciplinary

Counsel

Nan M. Cohen, Secretary, The Disciplinary Board

J. Leonard Ostrow, Esquire, Chairman, The Disci-

plinary Board

Letter, From G. H. Harris, Esq.

Do you have a question about a PBA service? A sug-

gestion? A problem? A complaint?

Carl Glock wants to hear about it. Use this folder

to write to him.

Dear Mr. Glock:

I do not believe that the local Disciplinary Board is

carrying out its duties when it sits on disciplinary actions

for almost four years without holding hearings and with-

out following up evidence and case law that is presented

to it at regular intervals.

The disciplinary board apparently acts only when

fraud against clients is shown and turns the other cheek

when lawyers regularly violate canons of legal ethics. I

think some sort of investigation is in order.

Name: Grace S. Harris Phone: 412-421-9624;

Address: 6567 Bartlett Street 255-2014

City: Pittsburgh Zip: 15217

Letter, Dated August 3, 1977

PENNSYLVANIA BAR ASSOCIATION

100 South Street

Harrisburg, Pennsylvania

Post Office Box 186 17108

Area Code 717-238-6715

Frederick H. Bolton, Executive Director

Olivia Pickard Kistler, Administrative Assistant

August 3, 1977

Grace S. Harris, Esquire

6567 Bartlett Street

Pittsburgh, Pennsylvania 15217

Dear Grace:

Mr. Glock has asked me to acknowledge and thank

you for your response to our pamphlet, “The President of

the Pennsylvania Bar Association Is Anxious to Hear From

You.”

Due to the nature of your response, I am forwarding

a copy to the Chairman and Chief Disciplinary Counsel of

the Disciplinary Board of the Supreme Court of Pennsyl-

vania and to the Chairman of our Committee on Legal

Ethics and Professional Responsibility for their considera-

tion.

Thank you for taking the time to write to us. We

appreciate your continued interest: and support.

10a

Letter, Dated August 3, 1977

With very best regards,

Sincerely yours,

Olivia Pickard Kistler

OPK: see

cc w/enc: J. Leonard Ostrow, Esquire

Allen B. Zerfoss, Esquire

Victor L. Drexel, Esquire

lla

Letter, Dated August 15, 1977

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA

100 Pine Street

P.O. Box 806

Harrisburg, Pennsylvania 17108

(717) 232-7525

Office of the Secretary

Nan M. Cohen Members of the Board

Alexander Unkovic,

Chairman

Charles V. Henry, III,

Vice-Chairman

Thomas J. Foley, Jr.

Henry T. Reath

Dennis C. Harrington

John C. Anderson

Herbert J. Johnson, Jr.

Raymond Pearlstine

Pasco L. Schiavo

August 15, 1977

Allen B. Zerfoss, Esquire

The Disciplinary Board of the

Supreme Court of Pennsylvania

100 Pine Street

P.O. Box 806

Harrisburg, Pa. 17108

Dear Allen:

I am sending you a note from Leonard Ostrow, to-

gether with copies of the correspondence pertaining to a

memorandum from Attorney Grace S. Harris, of Pitts-

12a

Letter, Dated August 15, 1977

burgh, to Carl Glock, President of the Pennsylvania Bar

Association.

Miss Harris is an Assistant City Solicitor for the City

of Pittsburgh. She was a recent candidate for the Common

Pleas Court and is active in the Pennsylvania Bar Associ-

ation. I have no idea what her complaint is, but assume

that you would wish fo follow this through.

Will you also have someone call the Pennsylvania Bar

Association so that they are aware that I have replaced

Leonard as Chairman. You will note the admonition of

our former Chairman.

If you believe that I should respond directly to this

letter, I have no hesitation in doing so.

Sincerely yours,

Alexander Unkovic

AU/bv

Encls.

cc: J. Leonard Ostrow, Esquire

EX U

MEMO

From the Desk of

ATTY. J. LEONARD OSTROW

Alec—

Some people are very reluctant to let me retire grace-

fully as Chairman of the Disciplinary Board.

Best regards,

Len

Keep up the good work. And don’t “sit on disciplinary

action for 4 years.”” What are we paying you for?

l3a

Letter, Dated August 15, 1977

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA

100 Pine Street

P.O. Box 806

Harrisburg, Pennsylvania 17108

(717) 232-7525

Office of the Secretary

Nan M. Cohen Members of the Board

Alexander Unkovic,

Chairman

Charles V. Henry, III,

Vice-Chairman

Thomas J. Foley, Jr.

Henry T. Reath

Dennis C. Harrington

John C. Anderson

Herbert J. Johnson, Jr.

Raymond Pearlsiine

Pasco L. Schiavo

August 15, 1977

J. Leonard Ostrow, Esquire

G. Daniel Baldwin Building

Erie, Pa. 16501

Dear Leonard:

Thanks for calling the Harris matter to my attention.

It is evident that it will take some time for me to be recog-

nized as the Chairman, following in the footsteps of a very

illustrious predecessor.

Sincerely,

Alexander Unkovic

AU/bv

Encl.

l4a

Letter, Dated October 2, 1977

GRACE S. HARRIS

Attorney at Law

6567 Bartlett Street

Pittsburgh, Penna. 15217

Area Code 412

421-9624

255-2014

Sunday, October 2, 1977

The Honorable Michael J. Eagen

Chief Justice, Supreme Court of Pennsylvania

Courthouse

Scranton, Pennsylvania 18503

Dear Mr. Chief Justice,

Because your intention that the legal profession police

itself was stressed in your interview with the Pittsburgh

Press that appeared today, I am writing again to remind

you that it is now four years since I first filed a complaint

with the Disciplinary Board against Allen N. Brunwasser,

Esq., for suing a Prothonotary’s clerk merely because that

clerk refused to expunge a Judgment without an Order of

Court.

Delay of four years in any proceeding is prejudicial to

the Complainant and inexcusable but it is particularly rep-

rehensible in an action against a attorney whose modus

operandi consists mainly of efforts to delay, delay, delay.

Mr. Brunwasser has continued to violate the Code through-

out this. period during which I have written the Board re-

peatedly, spoken to Mr. Burkhardt often, and submitted

reams of evidence. I even wrote the former Chief Justice

Jones before I appealed to you last February.

15a

Letter, Dated October 2, 1977

I have seen the Board move rapidly on occasion, even

where the charges involved were speculative, to say the

least. The Board, however, like many attorneys and judges,

seems to be intimidated by Mr. Brunwasser’s practise of

suing anyone who does not agree with him. His strategy

includes the allegation of falsehoods and half-truths (as he

argued in regard to me before your Honorable Court last

Friday) and the “right” to pursue the truth through dis-

covery (which he does not initiate properly). Meanwhile,

he releases his Complaints to the newspapers which are

free to report his allegations, i.e. the scandalous attack on

the character of Judge Wekselman.

Although he has sued me on non-existant grounds five

times, I am not concerned for myself. My good reputation

with the Allegheny County Bar is secure and I do not have

to protect a private practice. I am, however, very con-

cerned about the reputation of the legal profession and its

ability to exist with dignity and respect in Pittsburgh.

What should I tell my daughter in law school when she asks

why the Bar does not police itself?

Very truly yours,

(s) Grace S. Harris

Respondent’s Exhibit P

D.M.—West 2/2/78

l6a

Letter, Dated October 6, 1977

SUPREME COURT OF PENNSYLVANIA

Michael J. Eagen

Chief Justice

October 6, 1977

Allen B. Zerfoss, Esq.

Chief Disciplinary Counsel

The Disciplinary Board

Supreme Court of Pennsylvania

100 Pine Street, Box 806

Haz» sburg, Pennsylvania 17108

Dear Mr. Zerfoss:

Mrs. Harris seems to have good reason to complain.

Sincerely,

(s) M. J. Eagen

MJE: Icf

Enclosure: Harris letter

Received

Oct 10 1977

The Disciplinary Board

of the

Supreme Court of Pennsy!vania

17a

Letter, Dated January 18, 1978

January 18, 1978

B. R. Jones, Esquire

Suite 2600, 123 South Broad Street

Philadelphia, PA 19107

Dear Chief Justice Jones:

I am sorry to bother you or even attempt to divert you

from what I know must be very responsible activity.

However, I am facing disciplinary complaint with a

hearing set for January 30, 1978.

The hearing committee gave me broad discovery on

my argument that bias might be involved in the filing of the

charges.

I received various letters including one from Chief

Justice Eagen and a letter to him from Chief Disciplinary

Counsel Zerfoss.

Without going into this material, a letter dated Octo-

ber 2, 1977 from Grace Harris to Chief Justice Eagen in-

dicates that she had communicated to you because she did

not believe the ciiarges filed against me in 1973 were pro-

gressing in a manner satisfactory to her.

She indicates that the communication was February,

1977.

I would respectfully request a copy of each and every-

thing wi.ich Mrs. Harris sent to you plus eny reply from

your office. I would also respectfully request that any

other communication with your office or anyone associated

with your office concerning any disciplinary complaint

18a

Letter, Dated January 18, 1978

against me or complaint of any nature against me from

Mrs. Harris or anybody associated with her be sent on to

- my Office.

I realize that any comment I make will do more harm

to me than good because I am a mere member of the bar

without any influence of any type whatsoever and I cer-

tainly do not intend or desire to get into this position.

However, due process of law as defined by Article 1,

Sections 1, 9 and 25 of the Pennsylvania Constitution plus

the 5th and 14th Amendments require that I receive a copy

of anything sent to a Judge, especially when he is the dis-

tinguished Chief Justice of the State in which I am admitted

to practice.

Additionally, DR 7-110(b) requires I receive a copy

of each and every communication to a Judge.

Ordinarily I would not care. However, this material

was evaluated in determining that a formal complaint

should be made against me and I will require it in present-

ing a case of possible disciplinary rule violation, etc.

I want to again emphasize that I am leveling no criti-

cism against the Court. I am only attempting to defend

myself against what I believe to be unfounded charges and

to do so within the area of permissible defense.

I cannot send on a copy of any of the letters because

I have been instructed by the hearing committee that the

discovery is not to be exposed to anyone including my own

secretary. In making a photograph of the letter she would,

of course, be able to observe it and I do not want to risk

any violation of the instructions given me by the hearing

committee.

19a

Letter, Dated January 18, 1978

Trusting your Honor will comply with this request

and again apologizing for any inconvenience, I remain,

Respectfully yours,

ALLEN N. BRUNWASSER

ANB/dc

cc: Edward A. Burkardt, Esquire,

Assistant Disciplinary Counsel

20a

Letter, Dated January 23, 1978

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA

100 Pine Street

P.O. Box 806

Harrisburg, Pennsylvania 17108

(717) 232-7525

Office of the Secretary

Nan M. Cohen Members of the Board

Alexander Unkovic,

‘Chairman

Charles V. Henry, III,

Vice-Chairman

Thomas J. Foley, Jr.

Henry T. Reath

Dennis C. Harrington

John C. Anderson

Herbert J. Johnson, Jr. -

Raymond Pearlstine

Pasco L. Schiavo

January 23, 1978

Allen N. Brunwasser, Esq.

903B Grant Building

Pittsburgh, Pa. 15219

RE: Office of Disciplinary Counsel

v. Allen N. Brunwasser, Esq.

No. 43 DB 77

Dear Mr. Brunwasser:

This will respond to your telephone request of Janu-

ary 18, 1978 for copies of correspondence referred to in

21a

Letter, Dated January 23, 1978

the file which you reviewed in the District IV Office of the

Disciplinary Board, pursuant to what you characterized as

a “Discovery Order” granted by Hearing Committee 4.05.

It is my understanding you are requesting this office

to furnish copies of correspondence of ex-Chiéf Justice

Benjamin R. Jones; Chief Justice Michael J. Eagen; Mrs.

Ruth Strauss, Secretary to the Chief Justice; and Allen B.

Zerfoss, Esq., Chief Disciplinary Counsel, regarding Grace

Harris’ communications with the Court. You indicated in

the phone conversation that Mrs. Strauss reported back to

you that the Chief Justice would not make those letters

available to you.

On reviewing the matter with Charles V. Henry, III,

the Vice-Chairman of the Disciplinary Board, he requested

that I advise you that since we are subordinate to the Su-

preme Court, and the Chief Justice has apparently deter-

mined not to make the correspondence available, we can-

not overrule the decision of the Court not to make available

to you its correspondence to the Board.

Following your call to me I contacted Chief Disci-

plinary Counsel to inquire as to whether any correspon-

dence from the file of the District IV Office had been made

available to you incident to the prehearing conference

held on January 16, 1978. Mr. Zerfoss, Chief Disciplinary

Counsel, inquired of his assistants in District IV and

learned that two of his (Mr. Zerfoss’) letters—one to Mrs.

Strauss dated March 30, 1977 and the other to Chief Jus-

tice Eagen dated October 10, i977 were made available

to you at the direction of the Hearing Committee by John

E. Quinn, Esq., Assistant Disciplinary Counsel. Mr. Zer-

foss advises that there is no other correspondence from

22a 23a

Letter, Dated January 23, 1978 Letter, Dated January 30, 1978

him to representatives of the Supreme Court in regard to

this matter.

Very truly yours,

(s) Nan M. Cohen

Nan M. Cohen

Secretary

NMC/np

cc: Charles V. Henry, III, Esq., Vice-Chairman, The Dis-

| ciplinary Board

A.B. Zerfoss, Esq., Chief Disciplinary Counsel

Edward A. Burkardt, Esq., Assistant Disciplinary

Counsel

Members of Hearing Committee 4.05

Charles C. Keller, Esq., Chairman

Herbert Margolis, Esq.

Chester H. Byerly, Esq.

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA

100 Pine Street

P.O. Box 806

Harrisburg, Pennsylvania 17108

(717) 232-7525

Office of the Secretary

Nan M. Cohen

Members of the Board

Alexander Unkovic,

Chairman

Charles V. Henry, III,

Vice-Chairman

Thomas J. Foley, Jr.

Henry T. Reath

Dennis C. Harrington

John C. Anderson

Herbert J. Johnson, Jr.

Raymond Pearlstine

Pasco L. Schiavo

January 30, 1978

Alexander Unkovic, Esq.

Chairman

The Disciplinary Board of the

Supreme Court of Pennsylvania

3606 Mellon Bank Building

525 William Penn Place

Pittsburgh, Pa. 15219

24a

Letter, Dated January 30, 1978

RE: Office of Disciplinary Counsel

v. Allen N. Brunwasser

No. 43 DB 77

Dear Mr. Unkovic:

Regarding your request for Brunwasser documents, I

received the enclosures today from Mrs. Ruth P. Strauss,

Secretary to Mr. Chief Justice Michael J. Eagen. We had

not previously received copies of these items. Copies are

enclosed for Mr. Brunwasser and the other persons desig-

nated below. It is my understanding that you will give

these to the people involved at the disciplinary hearing

before Hearing Committee 4.05.

Very truly yours,

(s) Nan M. Cohen

Nan M. Cohen

Secretary

/nme

Enclosures

cc: Allen N. Brunwasser, Esq., Respondent (with enclos-

ures)

Mrs. Ruth P. Strauss (without enclosures)

Allen B. Zerfoss, Esq., Chief Disciplinary Counsel

(with enclosures)

John E. Quinn, Esq., Assistant Disciplinary Counsel

(with enclosures)

Members of Hearing Committee 4.05

Charles C. Keller, Esq., Chairman (with enclosures)

Herbert Margolis, Esq. (with enclosures)

Chester H. Byerly, Esq. (with enclosures)

EX V

25a

Letter, Dated January 27, 1978

SUPREME COURT OF PENNSYLVANIA

464 City Hall

Philadelphia, Pa. 19107

Received

Jan 30 1978

The Disciplinary Board

of the

Supreme Court of Pennsylvania

Michael J. Eagen

Chief Justice

January 27, 1978

Mrs. Nan Cohen

Disciplinary Board

100 Pine Street

P.O. Box 806

Harrisburg, Pa. 17108

Dear Mrs. Cohen:

In accordance with our conversation today and pur-

suant to instructions from Chief Justice Eagen, I am en-

closing copies of correspondence from this office to Grace

S. Harris, Esquire. The Chief Justice authorizes your of-

fice to show this material to Mr. Brunwasser. The follow-

ing letters are enclosed:

1. Letter dated January 27, 1977, from me as

secretary to Chief Justice Jones;

2. Letter dated April 22, 1977, from Chief

Justice Eagen;

26a

Letter, Dated January 27, 1978

3. Letter dated October 24, 1977, from me as

secretary to Chief Justice Eagen.

Sincerely,

(s) (Mrs.) Ruth P. Strauss

RUTH P. STRAUSS

Secretary to

Mr. Chief Justice Michael J. Eagen

Enclosures

464 City Hall

. Philadelphia, Pa. 19107

January 27, 1977

Grace S. Harris, Esquire

6567 Bartlett Street

Pittsburgh, Pa. 15217

Dear Ms. Harris:

Chief Justice Jones has asked me to respond to your

letter of January 13, 1977, and to advise you that he is re-

questing the Disciplinary Board to submit a report to him

concerning your complaint.

Yours very truly,

RUTH P. STRAUSS

Secretary to

Mr. Chief Justice Benjamin R. Jones

27a

Letter, Dated January 27, 1978

464 City Hall

Philadelphia, Pa. 19107

April 22, 1977

Grace S. Harris, Esquire

6567 Bartlett Street

Pittsburgh, Pa. 15217

Dear Ms. Harris:

Your letter of January 13, addressed to The Honor-

able Benjamin R. Jones concerning the complaint filed

against Allen N. Brunwasser, Esquire, with the Disciplinary

Board of the Supreme Court was called to my attention

yesterday.

It appears that Chief Justice Jones wrote to the Board

concerning your complaint and was informed that the mat-

ter was under investigation and that formal charges and a

Petition for Discipline “‘will probably be filed . . . in April

1977.”

When further word is received from the Board I will

write you again.

Sincerely,

28a

Letter, Dated January 27, 1978

464 City Hall

Philadelphia, Pa. 19107

\ October 24, 1977

Grace S. Harris, Esquire

6567 Bartlett Street

Pittsburgh, Pa. 15217

Dear Ms. Harris:

Chief Justice Eagen has requested that I send to you

the enclosed copies of letters dated March 30 and October

10, 1977, from the Disciplinary Board concerning your

complaint against Allen N. Brunwasser, Esquire.

Sincerely,

RUTH P. STRAUSS

Secretary to

Mr. Chief Justice Michael J. Eagen

Enclosures

29a

Report of Hearing Committee

THE DISCIPLINARY BOARD OF THE

SUPREME COURT OF PENNSYLVANIA

100 Pine Street, P.O. Box 806,

Harrisburg, Pennsylvania 17108

Form DB-10 1/74

TRANSMITTAL OF REPORT OF HEARING

COMMITTEE

Docket Number 43 DB 77—3 DB 78

OFFICE OF DISCIPLINARY COUNSEL

Petitioner

vs.

ALLEN N. BRUNWASSER

Respondent

To: Office of the Secretary

The Disciplinary Board of the

Supreme Court of Pennsylvania

100 Pine Street, P.O. Box 806

Harrisburg, Pa. 17108

On behalf of Hearing Committee 4.05, the under-

signed Chairman transmits herewith the following:

* X Report of Hearing Committee in the above pro-

ceeding.

30a

Report of Hearing Committee

X The complete original Transcript of Testimony

and the original of all Exhibits.

X Other Petitions For Discipline and Respondent’s

Motions.

(s) Charles C. Keller

Chairman, Hearing Committee 4.05

Date September 20, 1978

Filed Sep 25 1978

The Disciplinary Board of the

Supreme Court of Pennsylvania

(s) Nan M. Cohen

Secretary

* Effective July 1, 1975, The Disciplinary Board is request-

ing that hearing committee reports be prepared on 81/2” x

11” size paper.

SUMMARY

Two petitions, including four charges, were filed by

Disciplinary Counsel against Respondent, an Allegheny

County attorney.

The first charge arose out of the representation of pri-

vate clients and the failure to turn over the proceeds of an

insurance settlement.

The remaining three charges arose out of Respondent’s

conduct in opposing a tax judgment entered against

him personally by the City of Pittsburgh. This conduct

was allegedly malicious and harassing in nature and in-

3la

Report of Hearing Committee

cluded the filing of an equity suit against opposing coun-

sel and a prothonotary’s clerk, and a subsequent course

of conduct and tactics alleged to be harassing in the ex-

treme.

The final charge involved unauthorized assertion of a

landlord’s lien to forestall an execution against Respondent.

The charges include various kinds of misconduct un-

der DR 1-102, violations of duties to clients under DR 7-

101 and 102 and the appearance of impropriety under DR

9-102

The Hearing Committee finds violations of all three

disciplinary categories in the first, second and fourth

charges. It recommends Public Censure By The Supreme

Court, With ... Probation.

STATEMENT OF THE CASE

On October 17, 1977, Petitioner filed a Petition for

Discipline containing three charges of professional mis-

conduct concerning Allen N. Brunwasser, Esquire, (here-

inafter, ““Respondent’’) and the Petition was docketed at

No. 43 DB 77. The Petition for Discipline was duly

served upon the Respondent on October 19, 1977.

On November 8, 1977, the Respondent filed with the

Office of the Secretary of The Disciplinary Board a Mo-

tion for Additional Thirty Days to File Response to Dis-

ciplinary Complaint. The Secretary wrote to the Respon-

dent on that same day and informed him that the Vice-

Chairman of The Disciplinary Board, Charles V. Henry

III, Esquire, had granted the Respondent an additional

32a

Report of Hearing Committee

thirty days to answer the Petition for Discipline. The Sec-

retary also informed the Respondent in that letter that the

Vice-Chairman had ruled upon the Respondent’s request

because Alexander Unkovic, Esquire, Chairman of The

Disciplinary Board, had disqualified himself from any

participation in the disciplinary proceeding concerning the

Respondent. Since no answer had been received from the

Respondent on or before December 12, 1977, the matter

was referred to Hearing Committee 4.05 on that date.

On December 19, 1977, the Respondent did file a

document entitled Motion to Dismiss Complaint Because

of Unconsitutional Bias Within the Meaning of the 5th and

14th Amendments of the U.S. Constitution and Article 1,

Sections 1, 9, 25 and 26 of the Pennsylvania Constitution.

This document contained eight separate motions and an

answer on the merits as to the charges set forth in the Pe-

tition for Discipline. In her letter of December 20, 1977,

to the Members of the Hearing Committee, the Secretary

directed that the Hearing Committee ‘“‘should initially con-

sider and rule on all the motions made in the course of

their normal consideration of this matter.”

Subsequently, a prehearing conference was sched-

uled for January 10, 1978, and a hearing on the merits of

the Petition for Discipline scheduled for January 12, 1978.

However, by letter of December 27, 1977, the Respondent

requested that the Secretary continue the case because of a

trial conflict. Accordingly, the prehearing conference was

scheduled for and held on January 16, 1978.

At the prehearing conference, the Hearing Committee

ruled on the various motions raised by the Respondent in

the pleading which he had filed. The Respondent’s Mo-

tion for an Open Hearing was duly granted. The Respon-

33a

Report of Hearing Committee

dent’s Motion To Dismiss Complaint Because Of Uncon-

stitutional Bias was denied, with leave granted to the Re-

spondent to present whatever evidence might be relevant

in his case in chief at the hearing and renew his motion,

if appropriate. He did not renew his motion. The Re-

spondent’s Motion To Dismiss Because Charges Violate

The Freedom Of Speech And Right To Litigate Provisions

of the 1st and 14th Amendments To The U.S. Constitution

And Article 1, Sections 7, 11, And 26 Of The Pennsyl-

vania Constitution was denied. Respondent’s Motion To

Dismiss Charges Because Relevant Disciplinary Rules Are

Unconstitutionally Vague Under The Fact Situation Of

The Complaint was denied, as was the Respondent’s Mo-

tion To Dismiss Because Charges Do Not Violate Disci-

plinary Rules, but with the right to renew after presen-

tation of evidence. Respondent did not renew these mo-

tions. The other motions contained in his document which

the Respondent had earlier filed were not pursued by the

Respondent.

At the same prehearing conference, the Hearing Com-

mittee granted the Respondent’s request, over objection of

Petitioner, to review the complaint files and administrative

file pertaining to the disciplinary proceedings then under

adjudication. The Respondent was also permitted, again

over objection of Petitioner, to receive copies of any and

all documents contained in the file which the Respondent

desired to review, except those protected by the Rules. His

Motion for Limited Sequestering of Witnesses (witnesses

not to hear testimony of other witnesses or discuss testi-

mony with other witnesses) was granted. It was also de-

cided at the prehearing conference that hearing on the

merits of the Petition for Discipline would be scheduled

for January 31, February 1, and February 2, 1978.

34a

Report of Hearing Committee

On January 24, 1978, the Respondent filed a Motion

to Dismiss Complaint, which contained five new and sep-

arate motions. By letter of January 24, the Secretary, after

consultation with the Vice-Chairman of The Disciplinary

Board, referred the filing to the Hearing Committee for

consideration. These five motions were considered by the

Hearing Committee at the beginning of the hearing on

January 31, 1978. The Hearing Committee denied out-

right the Respondent’s Motion To Dismiss Complaint Be-

cause Matters Not Brought To The Attention Of Respon-

dent Were Considered In Processing And Approval Of

The Formal Charges and Motion To Dismiss Proceeding

Because Of Lack Of Separation Of Judicial And Prose-

cution Functions. The remaining motions (Motion To

Dismiss Complaint Because It Goes Beyond Charges Ap-

proved By Review Member; Motion To Provide For Separ-

ate Adjudication Of This Motion; and Motion To Strike

Recommendation Of Carl E. Glock, Jr., Esquire, Entered

July 28, 1976, Because Of Bias) were denied, with leave

granted to the Respondent to present evidence in his case

in chief and renew his motions if appropriate. Respondent

did not renew these motions.

Hearing was held as scheduled on January 31, Febru-

ary 1, and February 2, 1978. Charge 1 (the Kronzek com-

plaint) was completed, and Petitioner put in much of its

evidence and testimony in regard to Charges 2 and 3 dur-

ing these three days of hearing. The hearings were open

to the public and covered by various members of the

media.

Hearing on this matter was then continued until Feb-

ruary 21, 1978.

On January 31, 1978, a separate Petition for Disci-

pline was docketed concerning the Respondent at No.

35a

Report of Hearing Committee

3 DB 78, and a Petition for Discipline was served upon

the Respondent on February 9, 1978. On February 15,

1978, the Respondent filed with the Secretary a Motion

To Dismiss And For Other Relief and an Answer On the

Merits as to the Petition for Discipline at No. 3 DB 78.

(This Petition was commonly referred to as “Charge 4”

at hearing.) At the request of the Respondent, the Peti-

tion for Discipline was consolidated with the matter then

under adjudication (43 DB 77) and referred to the same

Hearing Committee (4.05).

The Respondent’s filing contained motions lettered

“A” through “‘M”’, which motions were considered by the

Hearing Committee before accepting evidence in regard

to Charge 4. The Respondent’s Motion to Consolidate

with No. 43 DB 77, Motion for Public Hearing, Motion

Incorporating All Previous Motions, Motion to Examine

Administrative File, and Waiver were granted by the

Hearing Committee. The Respondent’s Motion to Dis-

charge because of Splitting of Causes of Action, Motion

to Dismiss Proceeding Because of Relationship Between

Disciplinary Counsel and Hearing Plus Review Members,

Motion to Dismiss Proceeding Because of Violation of Ar-

ticle 1, Section 11 and 20 of the Pennsylvania Constitu-

tion, Motion for Prehearing Conference, and Motion to

have Decision by the Supreme Court of Pennsylvania were

all denied by the Hearing Committee. The Respondent’s

Motion to Dismiss Proceedings Because of Invidious Dis-

crimination and Choice of Triers, Motion to Dismiss Pro-

ceeding Because of Prejudicial Prosecutor, and Motion to

Discover Reason for Splitting No. 3 DB 78 from No. 43

DB 77, were all denied by the Hearing Committee, but

with leave for the Respondent to present evidence in his

36a

Report of Hearing Committee

case in chief, and renew the motions if warranted. Re-

spondent did not renew these motions.

The disciplinary hearing was continued on Febru-

ary 21, and held that day and February 22, 1978. Peti-

tioner concluded its case on Charges 2 and 3, and the Re-

spondent presented evidence in his case during these two

days of hearing. The hearing was then continued until

April 3, 1978, and held on that day and on April 4, 1978.

The hearing was concluded on April 4, 1978, and the rec-

ord closed, with both Petitioner and the Respondent hayv-

ing an opportunity to present oral argument to the Com-

mittee.

CHARGE 1

FINDINGS OF FACT

1. In about November, 1975, the Respondent

agreed to represent the Kronzeks in a trespass action

which had previously been instituted by other counsel

against the Duquesne Light Company aid the American-

Russian National Home Club (hereinafter, “The Du-

quesne Light case”) , which civil action involved fire dam-

age to a tavern owned and operated by the Kronzeks.

(N.T. 29, 137)

2. In regard to the Duquesne Light case, a com-

pulsory nonsuit had been granted at trial on or about No-

vember 12, 1975, and. the Kronzcks’ trial attorney had

filed with the court a Motion for New Trial and to Take

Off Compulsory Nonsuit on November 17, 1975. (N.T.

17)

37a

Report of Hearing Committee

3. Prior to November, 1975, and until July, 1976,

the Respondent represented Srul Kronzek, Morris Kron-

zek’s father, in many legal matters, and the Respondent

was usually paid by Srul Kronzek by post-dated checks.

(N.T. 230)

4. At or shortly after the time of his employment,

the Respondent agreed to represent the Kronzeks in the

Duquesne Light case for a fee of $1,000, plus the payment

of the cost of a transcript of the trial which had already

been held in the case. (N.T. 29, 236; PE 3, PE 4)

5. It was agreed to and known by both the Respon-

dent and the Kronzeks that Srul Kronzek was to pay the

Respondent’s legal fee for representing the Kronzeks in the

Duquesne Light case. (N.T. 31, 138, 236)

6. Sometime before Nove.aber 26, 1975 (PE 3),

the Kronzeks went to the Respondent’s office and deliv-

ered to him two checks totaling $500, which checks had

been given to them by Srul Kronzek, and were drawn

upon an account belonging to Srul Kronzek, in partial pay-

ment of the Respondent’s legal fee for representing the

Kronzeks in the Duquesne Light case. (P.E. 10A, 10B),

(N.T. 41-42, 138).

7. By letters of November 26, 1975 (PE 3) and

December 8, 1975 (PE 4), the Respondent demanded that

the Kronzeks pay the $500 balance of the fee then owed,

as well as $360 for the Respondent’s purchase of a tran-

script in their case.

8. The Respondent later agreed to accept only the

$1,000 fee and to pay for the transcript from his own

funds. (N.T. 237)

38a

Report of Hearing Committee

9. After receipt of the Respondent’s letter of De-

cember 8, 1975, Shirley Kronzek obtained a check from

Srul Kronzek in order to pay the balance of the fee then

owing the Respondent and delivered the check to the

Respondent herself. (N.T. 138-140; PE 10C)

914. By February 18, 1976, Respondent had Te-

ceived and cashed checks totalling $1,000, representing

payment of his fee in the Duquesne Light Company case.

10. On or about May 10, 1976, after the Respon-

dent had submitted a brief on behalf of the Kronzeks to

the court (PE 16), the Kronzeks’ Motion for Removal of

the Judgment of Compulsory Nonsuit was denied. (N.T.

17)

11. On May 18, 1976, the Respondent sent a letter

~ to Morris Kronzek informing him of the court’s decision

and indicating a possibility of securing a settlement offer

from the Defendants in the case. (PE 5)

12. On May 24, 1976, the Respondent sent a letter

to the Kronzeks informing them of a settlement offer in

the amount of $750, and requesting from the Kronzeks a

decision on to whether they desired him to accept the set-

tlement offer on their behalf. (PE 6)

13. A short time after their receipt of the Respon-

dent’s letter of May 24, 1976, the Kronzeks informed the

Respondent of their acceptance of the settlement offer

brought to their attention by this letter. (N.T. 47, 142,

323)

14. The Respondent did not at any time during his

representation of the Kronzeks demand any fee in addition

to the $1,000 which he had received. (N.T. 141, N.T. 48)

39a

Report of Hearing Committee

15. On July 13, 1976, Srul Kronzek died (N.T. 17)

16. In late August, 1976, the Respondent received

two separete checks from the respective insurers of Du-

quesne Light and the Russian Club, each in the amount

of $375 made payable to the Kronzeks and the Respon-

dent, as their attorney. (PE 9(a) and 9(b); PE 7)

17. After his receipt of these checks, the Respon-

dent did not endorse and forward them to the Kronzeks,

- although his entire $1,000 legal fee for his handling of the

Duquesne Light case had previously been paid. (N.T. 49,

143; PE 9(a) and 9(b); PE 7) Instead, the Respondent

sent a letter to Morris Kronzek on September 10, 1976,

and thereby transmitted to the Kronzeks the two settle-

ment checks which remained unendorsed. Also, in that

letter:

(a) The Respondent stated that he had been

unable to negotiate three checks, specifically de-

scribed in the letter, totaling $650 which had pur-

portedly been given to him by the late Srul Kronzek

for payment of legal fees;

(b) The Respondent requested that the Kron-

zeks endorse the two insurance settlement checks and

return the checks to him; and,

upon his receipt of the endorsed insurance settlement

checks, return to the Kronzeks the three checks total-

ing $650 which had been given to him by Srul Kron-

zek and which the Respondent could not negotiate

and would additionally forward to the Kronzeks his

personal check for $100. (PE 7; N.T. 142-143)

40a

Report of Hearing Committee

18. On September 14, 1976, Shirley Kronzek alone

visited the Respondent at his law office. At the ensuing

conference:

(a) Shirley Kronzek requested the Respondent

to endorse the two insurance settlement checks which

she had with her, and which she then presented and

brought to the Respondent’s attention;

(b) The Respondent refused to endorse the in-

surance settlement checks as requested by his client,

but repeated the proposal set forth in his letter of Sep-

tember 10, 1976;

referred to in his letter of September 10, 1976 (PE

11(A), 11(B), 11(C)), payable to Shirley Kronzek’s

order, and gave the checks to her;

(d) Shirley Kronzek told the Respondent that

she either would not or could not secure payment of

his legal fees from the representatives of the Estate

of Srul Kronzek. (N.T. 143-149)

19. On September 14, 1976, after Shirley Kronzek’s

meeting with the Respondent, the Kronzeks prepared, and

Shirley Kronzek mailed, a letter to the Respondent, where-

in demand was agai. inade of him that he agree to endorse

the two insurance settlement checks pertaining to their

Duquesne Light case. (PE 8; N.T. 143, 50)

20. On October 1, 1976, Shirley Kronzek filed a

disciplinary conplaint against the Respondent.

21. The Respondent persisted in his refusal to en-

dorse the two insurance settlement checks or to inform the

Kronzeks of his willingness to do the same, through the

time of disciplinary hearing. ;

4la

Report of Hearing Committee

CHARGE 1

DISCUSSION

Assistant Disciplinary Counsel contends that the Re-

spondent violated five separate sections of the Disciplinary

Rules as follows:

1. The Respondent violated DR7-101(A) (2) and

DR7-101 (A) (3) by initially failing and later refusing to

endorse the two insurance settlement checks, the proceeds

of which in their entirety belong to the Kronzeks, despite

having been requested by his clients to do so.

2. The Respondent violated DR9-102(B) (3) in

that he failed to render an appropriate account to his

clients regarding the settlement proceeds by wrongfully as-

serting a “lien” over the settlement checks, and never in-

forming the Kronzeks of his position as to what portion of

the proceeds, if any, represented fees not collected by the

Respondent.

3. The Respondent violated DR1-102(a) (6) and

DR9-102(B) (4) in failing to endorse and give over the

insurance settlement checks and thereby pay to the Kron-

zeks the proceeds of the settlement of their cause of action

in the Duquesne Light case.

Preliminarily, the Hearing Committee notes that the

proper standard of proof in disciplinary proceedings is not

proof beyond a reasonable doubt, but is a preponderance

of evidence which is clear and satisfactory. In Re Berlant,

328 A.2d 471 (1974).

The Respondent represented Srul Kronzek in many

legal matters and was usually paid with post-dated checks.

42a

Report of Hearing Committee

In November, 1975, the Respondent undertook to repre-

sent Morris and Shirley Kronzek in the Duquesne Light

case with the fee to be paid by Srul Kronzek. After the

initial meeting, all of the correspondence on the case origi-

nating from the Respondent was sent to Morris Kronzek.

PE 3, 4, 5, 6, 7. The letter from the Respondent dated

September 10, 1976 (P.E. 7) contains this sentence: “Of

course, the $750 is yours because Mr. Kronzek paid me a

fee to do the work.” The Respondent then attempted to

enlist Morris and Shirley Kronzek to act as his collection

agents in obtaining payment of three checks issued by Srul

Kronzek who had died on July 13, 1976. Said letter also

contained this sentence: “I would suggest that it is easier

for you to get the money from Mr. Golding (attorney for

the Srul Kronzek Estate) than for me to waste my valuable

time when the money, which I received for doing my work

is not now available.”

The Respondent seemingly contends that he is not

certain that his entire fee of $1,000 has been paid for the

Duquesne Light case or in the alternative that he was rep-

resenting Srul Kronzek in that case and had a right to

exercise a lien over the $750 insurance settlement because

of $650 due him for other cases, as represented by three

checks, one dated December 6, 1976 for $200, one dated

November 10, 1976 for $200 and one dated July 29, 1976

for $250. The Hearing Committee is satisfied by a pre-

ponderance of the evidence that the Respondent was paid

his fee of $1,000 for the Duquesne Light case months be-

fore September 10, 1976 and that he was representing

Morris and Shirley Kronzek.

Since the Hearing Committee finds that Morris and

Shirley Kronzek were Respondent’s clients in the Du-

43a

Report of Hearing Committee

quesne Light case, the assertion of a lien for money due

from Srul Kronzek in other cases is not justified.

Any confusion regarding the various checks issued

by Srul Kronzek would be avoided if the Respondent had

kept proper records of payments in a case by case basis.

This he did not do.

Thus, the Respondent violated DR7-101(A) (2) and

DR7-101 (A) (3) by initially failing and later refusing to

endorse the two insurance settlement checks, the proceeds

of which in their entirety belong to the Kronzeks, despite

having been requested by his clients to do so.

The Respondent violated DR9-102(B) (3) in that he

failed to render an appropriate account to his clients re-

garding the settlement proceeds by wrongfully asserting a

“lien” over the settlement checks, and never informing

the Kronzeks of his position as to what portion of the pro-

ceeds, if any, represented fees not collected by the Respon-

dent.

The Respondent violated DR1-102(A) (6) and DR

9-102 (B) (4) in failing to endorse and give over the in-

surance settlement checks and thereby pay to the Kronzeks

the proceeds of the settlement of their cause of action in

the Duquesne Light case.

CHARGE 2

FINDINGS OF FACT

1. On March 2, 1971, the City of Pittsburgh and

its Treasurer, Joseph L. Cosetti, filed a complaint in as-

44a

Report of Hearing Committee

sumpsit against the Respondent to collect delinquent bus-

iness privilege taxes allegedly owed by the Respondent

(PE 20-A).

2. In December, 1972, the Respondent served In-

terrogatories and Additional Interrogatories (PE 20-1)

upon Harris, and Harris and the Respondent eventually

entered into a stipulation dated December 29, 1972, re-

quiring that the Respondent file an Answer to the com-

plaint within twenty days after answers to the various in-

terrogatories had been filed and served (PE 20-H; N.T.

454-455).

3. On March 20, 1973, Harris filed and served on

Respondent, Answers to the Interrogatories and Addi-

tional Interrogatories which were complete on their face.

(PE 20-I; PE 30; N.T. 456).

4. No Motion For Sanctions or other form of chal-

lenge to the adequacy of the Answers to the Interrogatories

was filed of Record or orally discussed with Harris by Re-

spondent, prior to July 24, 1973 (PE 20; N.T. 464, 467).

5. Between March 20, 1973 and July 24, 1973,

Harris, on several occasions, orally reminded Respondent

that his Answer to the Amended Complaint in Assumpsit

in the City of Pittsburgh case was due according to the

terms of the Stipulation of December 29, 1972 (N.T. 465-

467).

6. On July 24, 1973, Harris presented a Praecipe

for Judgment of Default, which was duly filed in the

Office of the Prothonotary in the Arbitration Division

(PE 20-J; N.T. 467). Respondent was notified by Harris

of the default judgment by letter of July 24, 1973 (PE

31).

45a

Report of Hearing Committee

7. The default judgment was entered on the docket

of the City of Pittsburgh case and was duly indexed in the

judgment index. The judgment, as indexed, was regular

on its face.

8. The Praecipe for Default Judgment was accepted

for filing by Frances Grzelka, a Clerk in the Arbitration

Division of the Prothonotary’s Office.

9. During the period between July 24 and August

24, 1973, beginning one or two days after the filing of the

Praecipe for Default Judgment on July 24, 1973, Respon-

dent called Grzelka at least ten (10) times and urged him

to strike the judgment from the docket and from the Gen-

eral Judgment Index (N.T. 810-811).

10. Respondent asked Grzelka to deliver the origi-

nal Praecipe to him (N.T. 810, 875).

11. Respondent offered to provide ink eradicators

to Grzelka if he would remove the judgment entries from

the Record (N.T. 812, 943-4).

12. Shortly before August 24, 1973, the Respon-

dent orally threatened to sue Grzelka as a result of Grzel-

ka’s refusal to remove the default judgment in the City of

Pittsburgh case (N.T. 816).

13. Grzelka repeatedly advised the Respondent to

present a Motion or Petition to the Court to strike or open

the default judgment and further stated repeatedly to the

Respondent that he (Grzelka) did not believe that he had

the authority or power to remove or erase the default

judgment (N.T. 809-812).

14. Grzelka did not, under the circumstances, have

the power or authority to remove or erase the default judg-

ment (N.T. 1315, 1326).

46a

Report of Hearing Committee

15. As a result of these actions by Respondent,

Grzelka complained to Harris he was being “terrorized”

by Respondent (N.T. 861).

16. Between August 6, 1973, and August 13, 1973,

Harris and the Respondent exchanged letters as follows:

(a) By letter of August 6, 1973, Harris

warned the Respondent against further harassment of

Prothonotary “clerks” and requested that the Re-

spondent move to have the default judgment opened

by motion of the Court; (PE 33)

(b) By letter of August 8, 1973, the Respon-

dent informed Harris that he did not consider the In-

terrogatories fully answered; that he had intended to

bring the matter to the attention of the pretrial judge

“but did not have time available because I was en-

gaged daily in many trials”; that he would petition

the court to remove the judgment if Harris did not

agree to remove the same within 72 hours of the date

of that letter. (PE 34)

again wrote to Harris and requested to know whether

she agreed to open the judgment. (PE 35)

(d) In response to the Respondent’s letter of

August 13, 1973, Harris wrote the Respondent on the

same day, and informed him that she did not intend

to open or withdraw the default judgment which had

been entered in the case. (PE 36; N.T. 483)

17. The Respondent did not present a motion or

petition to the Court, or take any other action, to open or

remove the judgment in the City of Pittsburgh case until

October 12, 1973, when the Respondent filed and served

47a

Report of Hearing Committee

upon Harris a Motion to Strike and/or Open Judgment.

(PE 20-K)

18. On October 17, 1973, Judge John J. McLean,

Jr., entered an order refusing the motion of the Respon-

dent to strike or open the judgment, for the reasons set

forth in an Opinion attached thereto. (PE 20-L)

19. On August 24, 1973, the Respondent com-

menced legal action against the City of Pittsburgh, Harris,

and Grzelka by filing a praecipe for writ of summons in

equity and trespass (the “Brunwasser’” case). (PE 21-A).

Harris and Grzelka were sued in their individual capaci-

ties.

20. The writ of summons, if it was ever issued, was

never served on Harris or Grzelka (PE 21; N.T. 817).

21. On August 29, 1973, Counsel for the City of

Pittsburgh and Harris, (Strassburger), and counsel for

Grzelka (James R. Fitzgerald, Esquire), filed a praecipe

for rule to file complaint against the Respondent, which

rule was served upon the Respondent on August 30, 1973.

(PE 21; 21-B). By letter of September 7, 1973, Strass-

burger reminded Respondent of the impending judgment

of nonpros. (PE 39)

22. Respondent served on Strassburger a “Prelimi-

nary Objection to Rule to Show Cause” and Interroga-

tories with his letter of September 6, 1973. (PE 38, 21-C,

21-D). Respondent had not secured leave of court to file

his Interrogatories. Both papers were forwarded to the

Prothonotary for filing with Respondent’s letter of Sep-

tember 10, 1973 (PE 40). Both papers, due to inadver-

tence in the Prothonotary’s Office, were not properly filed

or docketed.

48a

Report of Hearing Committee

23. Strassburger filed objections to discovery on

September 14, 1973. (PE 21-E; N.T. 993).

24. The Respondent neither filed his complaint nor

secured a stay of the rule secured by Strassburger before

September 21, 1973. (PE 21).

25. On September 21, 1973, Strassburger filed a

praecipe for judgment of non pros, which judgment was

entered of record. (PE 21; 21-F; N.T. 997).

26. Sometime shortly thereafter, Respondent, by

ex-party action procured an order from the Prothonotary

striking the judgment of non pros, although the order was

never carried out on the Record. (PE 21-O). Respondent

orally notified Strassburger of that action. (N.T. 998).

27. Thereafter, Strassburger served upon the Re-

spondent a Motion for Judgment of Non Pros which was

scheduled for argument on October 12, 1973. (PE 41 and

42; N.T. 1000)

28. On October 12, 1973, Respondent submitted

to Judge Silvestri a Motion to Extend Time for Filing

Complaint (PE 21-H) which the judge refused. There-

after, the judge granted Strassburger’s Motion For Judg-

ment of Non Pros. (PE 21-G)

29. On October 16, 1973, upon petition of the Re-

spondent, the Court granted a rule on the City of Pitts-

burgh and Harris to show cause why a ju

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