# Petition — Brunwasser v. Office of Disciplinary Counsel

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 870

## 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

i

PAGE

38

51

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

ii

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
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

Vv

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

vi

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

TT

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.

10
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.

en

11
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.’’

,

12
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.

13
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.

(c) On September 1, 1977 (docket entry number
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

14
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.

15
Statement of the Case

(c) Between then and August 3, 1977, Harris, who
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

16
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

17
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.

(c) Amotion (paragraphs 1-24) to dismiss the com-
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)

18
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.

19
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.

20
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 ;

21
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.”’

22

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,

23
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

24

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-

25
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-

26

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.

27
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-

28
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.

29
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:

30
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-

31
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).

32

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.”

33
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

34
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-

35
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:

36
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

37
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.

39
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.

40
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

41
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.

42
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 |

43
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.

44
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?

45
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.)

47
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-

48
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-

49
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-

50
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) .

51
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.

52
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.

55
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.

56
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

57
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

58
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.

59
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

60
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-

61
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.

62
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,

63
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

la
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

2a
Letter, Dated January 27, 1977

Received
Jan 28 1977

The Disciplinary Board
of the
Supreme Court of Pennsylvania

3a
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.

4a
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

5a
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

6
: 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

7a
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

8a
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

9a
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

o
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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0745%3A1. Public record. Not legal advice.