Petition — Connor v. Flynn

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8 ) - 6 50 P Sapetie Court, U.S,

FILED

No. OCT 20 1980

Mirvuars no.

wren tee RUDAR, JR., CLERK

IN THE aaa ae

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

JOHN R. CONNOR, Petitioner,

EDWARD J. FLYNN

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME CCURT OF NEW JERSEY

John R. Connor, Pro se

380 Wyoming Avenue

Millburn, New Jersey

(201) 762-5587

QUESTIONS PRESENTED

1. Where a party, during the pendency of

an appeal in the Appellate Division of the

Superior Court of New Jersey, moves before

the trial court under Rule 2:5-5(a) Motion

to Settle the Record, and where, due to the

death of the party, no order is entered dis-

posing of such motion, may the appellate court

resume jurisdiction and adjudicate the appeal

rior to the substitution of the non-party

Survivor under Rule 4:34-1(b) where the issues

raised by the motion to settle the record re-

main unresolved by the trial court and, if so,

may the appellate court do so without substan-

tially prejudicing the "due process" rights

of the non-party survivor in violation of the

Due Process Clause of the Fourteenth Amendment?

2. Whether the non-party survivor has a

fundamental "due process" right, upon his sub-

stitution as plaintiff-appellant under Rule

4:34-1(b), to secure, under Rule 2:5-5(a)

Motion to Settle the Record, the transcript

he deems necessary for the prosecution of his

appeal and to secure transcript which is pro-

perly certified and admissable as evidence

and, if so, and where said right has been a-

bridged, whether there has been a substantial

violation of the "due process" rights of the

non-party survivor in violation of the Due

Process Clause of the Fourteenth Amendment?

PARTIES TO THE PROCEEDING ARE:

John R. Connor (Non-party survivor)

380 Wyoming Avenue

Millburn, New Jersey 07041 |

Edward J. Flynn (Defendant-Respondent)

245 Main Street

Millburn, New Jersey 07041

TABLE OF CONTENTS

Questions presented .....cccccccccecs

Parties to the proceeding ...........

Jurisdiction eeeeeseeeaeeeeeeeeneeeeeeeee

Constitutional provisions and court

EE <i knees % 666 6000 eeece

Statement eeeeseoeeseeeeeeeeeeeeeeeneeeenee

Reasons for granting the writ .......

Conclusion eeeseseeeeeeeeeeeeeeeeeeeeee

Ne i ethene

Appendix B eeereeveeeee eee eeeeeeeeeeeee

Appendix

eo et@ sp &*& ws aww e& aes le

wail

Page

10a

13a

15a

17a

18a

19a

22a

24a

27a

TABLE OF AUTHORITIES

Cases: Page

Allen B. DuMont Laboratories v.

Marcalus st Co., 30 Ne de 290,

A. 59) e*eee@ee@*eee#ee#*ee#ee@eee#*ee#*e#ee#ee#es¢ 35

Baird v. Peoples Bank & Trust Co.

of Westfield, 120 F.2d 1001, 136

ecae Me ea Ed. Oe OS wa bes ocean ee

Brown v. Ryder, 42 N. J. Eq. 358

(Prerog. ae 1886) eee7e7ee7#see8s3#ee#e#e###e#e#e 37

Buchanan v. Buchanan, 75 N. J. Eq.

oi ae: Mx ie i) eae

Chidester v. City of Newark, 162 F.2d

ce A. 3) eeeee7nee#seeeen8teenseee#ensee#*eee#e#e 35

Cobb v. Chatham Trust Co., 136 N. J.

Eq. 191, 41 A.2d 137 (ch. 1945) .... 35

Dation v. Ford Motor Co., 314 Mich.

152, 22 N.W.2d 252, 258 (1946) ..... 39

Davenport v. Davenport, 68 N. J. Eq.

611 (E. & A. 1904) eeeeeesees8se#see#e7seseen#ee 28,37

DeFeo v. Recorder's Court of the Town

of Belleville, 129 N. J. L. 549,

30 A.2a 507 (1943) eeeeeeeeeeeeeneeeee 42

Dupuy v. Tedora, 204 La. 560, 15 So.2d

6, 890 (1943) eeeeeeveeve ee eee ee ee eee 39

Frazier v. Moffat, 239 P.2d 123, 108

C. A. 379 (2d Dist. Ct. App. 1951)... 42

Garnick v. Serewitch, 39 N. J. Super.

486, 121 A.2q 423 (Ch. 1956) ....... 36

iii

Page

In re East Windsor Mun. Util. Auth.

v. Shapiro, 57 N. J. 169, 170

eoeeeeoeeeveeeeeeeeeeeeeeeeeneenesene 32

In re Norrell, 137 N. J. Eq. 207

tE. & A. 1945) eoeeeeoeeeeeeeneeneeeeee 28,37

Insurance Co. of North America v.

Allied Crude Vegetable O11 Refin-

N. J. Super. 518,

A. 579 (1965) eeeeeveeeevee eee 34

Mosely v. Carswell, 152 S.E. 856,

41 Ga. App. 267 (Ct. App. 1930) ... 48

Niemaseck v. Bernett Holding Co.,

Inc., et al., 125 N. 7 tra,

4 Ald 797 (Ch. 1939) e*eeeee#e3#7#ee#eee#ee¢#es 26

Norback v. Board of Directors of

Church Extension Soc., 84 Utah 506,

37 P.2a 339 (1934) eeeeneeeveeeeeneeenene 42

People v. Foster, 58 N. Y. S. 574,

Misc. 576, 582 (Sup. Ct. 1899).. 48

Piscataway Assoc., Inc. v. Townshi

of Piscataway, 73 N. J. Eq. 7

) eeeeeeeeeeeeeeeeeeeeeeeeeeee 28

Sinclair v. Sinclair, 196 Tenn. 538,

268 S.W.2a 573, 575 (1954) eeeeeeee 39

Skolnick v. Spolar, 317 F.2d 857,

cert. denied, rehearing denied,

D GAEMG baS och ehebede Vidkab een cee. 3

State v. Williams, 9 Gil. 128 (Md.

CS. App. 1850) eeeeeeeese¢e3«#e#*#*ee#7#e#ee#e#e#es 29,37

Thatcher v. Jerry O'Mahony, Inc.,

39 N. J. Super. 330, ot A.2d 50

(1956) eoeeeseeoeeeeeeeeaeeeeeeeeeeeneee8 35

Page

Tidewater Oil Co. v. Mayor and

Council of Cartaret, 44 N. J.

338, 342, 209 A.2da 105, 106

Ce cian owaied BOO 6ERE MOSER oeceee on

United Lacquer Mfg. Corp. v. Maas

& Waldstein Co., Tit F. Supp.

139 (Uv. S. D. Se 1953) eeeeneee#s3#s8#8eee 34

; Washington Nat. Ins. Co. v. Board .

of Review of N. J. Unemployment

Compensation Commission, 1 N. J.

g BE Meee SSS ULUEES ccccccccce 3

Williams v. Georgia, 349 U. S. 375,

). ccccvcccccccccccccccccse 47

Constitution, statutes and court rules:

United States Constitution:

Fourteenth Amendment .......2+++ 2,3,33,

27,52

New Jersey Statutes:

N.J.S.A. 2A:136-1 ..cccccceceee 8

N.J-S.A. 2C821-4 wcccccccccccee 8

New Jersey Rules:

C.P.R. 2:2-3 eeeeoeeeeeneenetenseeee 46

om FF 2:4-1(a) eeeeeeeeeee eee 10

C.P.R. 2: 8-3 (a) eeeseeeeeenerensteeee 27

C.P.R. 2:9-1 eee eoeoeeeensteseenreeeees 40

Page

C.P.R. 4:34-1(b) eeereeeeeeeees 3,33,34,

36,38,39

Miscellaneous:

Administrative Regulations Govern-

ing Reporters in the New Jersey

Courts eeeeseeeseeeeeeeeeeeneeeeneee 15,48

4A Cc. J. S. Certifications,

§30 (1978) eeeeeenweeeneeeeneeneseeee 49

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

In the matter of

MARY A. CONNOR, Individually

and as Executrix of the

Estate of Mary Ellen Flynn,

Plaintiff-Appellant,

Vv.

EDWARD J. FLYNN,

Defendant-Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

Petitioner John R. Connor, beneficiary of

Decedent Mary A. Connor's interest in the

above-entitled litigation, hereby petitions

for a writ of certiorari to review the judg-

ment of the Supreme Court of New Jersey in

this case.

(1)

JURISDICTION

On June 25, 1980 the New Jersey Supreme

Court successively entered Orders dismissing

the within appeal on respondent's motion

(App. A, infra, p. la), dismissing Petition-

er's Motion for Summary Reversal of the

Appellate Division judgment (App. B, infra,

p. 2a) and dismissing Petitioner's cross-

motion for certification nunc pro tunc (App.

C, infra, p. 3a). On July 23, 1980 the New

Jersey Supreme Court denied a Petition for

Rehearing (App. D, infra, p. 4a).

The jurisdiction of this Court is in-

voked under 28 U. S. C. §1257(c). The

opinions herein are not reported.

CONSTITUTIONAL PROVISIONS

AND COURT RULES INVOLVED

The Fourteenth Amendment to the United

States Constitution provides in part:

No state * * * shall deprive

any person of life, liberty, or

property, without due process of

law; nor deny to any person with-

in its jurisdiction the equal

protection of the laws.

N. J. Sup. Ct. C.P.R. 2:5-5(a) provides:

If any party questions whe-

ther the record fully and truly

discloses what occurred in the

court or agency below, he shall

apply on motion to that court or

agency to settle the record. The

appellate court, on motion, may

review such determination or may,

on its own motion, order a cor-

rection of the record or may

direct the court or agency to do

so. The making of a motion pur-

suant to this rule shall toll

the time for serving and filing

the next brief due, but the re-

maining time shall again begin

to run fom the date of entry of

an order disposing Of such a

motion. (emphasis added)

N. J. Sup. Ct. C.P.R. 4:34-1(b) Non-

Party Survivors states:

If a party dies and the claim

is not thereby extinguished, the

court shall on motion order sub-

stitution of the proper parties.

The motion for substitution may

be made by the successors or rep-

resentatives of the deceased par-

ty or by any party, and notice

thereof shall be served on parties

as provided by R. 1:5-2 and on

persons not parties in the’ man-

ner provided by either R. 4:4

(service of original process)

or, if the court directs, R.

4:67-3 (service of orders to

show cause. (emphasis added)

STATEMENT

In order to relate the facts requisite

for an informed decision on the within Peti-

tion, it will be necessary to discuss at

some length the historical background of

this litigation. Encompassing over twelve

years now in the New Jersey courts, Connor

v. Flynn stands, without peer in the Garden

State, when it comes to the corrupt and

criminal extremes to which a defendant, aid-

ed and abetted by the courts, will resort

in order to "win" a case and obstruct a

plaintiff in her efforts to obtain a just

adjudication of her claims.

The within matter, entitled Mary A.

Connor, Individually and as Executrix of

the Estate of Mary Ellen Flynn v. Edward J.

Flynn, was originally filed in the Chancery

“

Division of the Superior Court of New Jersey

in 1968. A suit for an accounting of part-

nership profits, plaintiff claimed that her

brother, the defendant, had "skimmed" in

excess of $200,000.00 in unreported profits

from the business of Flynn's Tavern in Mil-

lburn, New Jersey over a 20-year period

from 1948-1968. This case, hereinafter re-

ferred to as Connor v. Flynn, went to trial

in 1972.

Originally, plaintiff was represented by

Mr. Albert G. Besser, Esq. [Hannoch, Weis-

man, Stern & Besser, 744 Broad Street,

Newark, New Jersey 07102], but due to this

attorney's failure to complete discovery --

confirmed eventually in the trial court's

opinion -- plaintiff was forced to retain

other counsel for trial. The latter (Fred

Blackwell, Esq., District of Columbia bar)

represented plaintiff during the evidenciary

1 Gonnor v. Flynn, Docket No. C-2565-68

(trial); Docket No. A-2853-74 (Appellate

Division); Docket No. 16,605 (Supreme Court)

phase of the trial, but because plaintiff

declined to accept a settlement offer, re-

signed from the case before oral argument.

At this point, plaintiff decided not to re-

tain additional counsel but to represent

herself pro se. [In point of fact, Peti-

tioner, son of now-deceased plaintiff, was

thereafter permitted by the trial court to

file all necessary pleadings and briefs

and to make all court appearances on be-

half of his mother.]

The trial court's opinion, while award-

ing nominal, compensatory damages of

$6,408.80 to plaintiff, decided against

her on her claim for an accounting for

"skimmed" profits. However, due to the fact

that the most signifigant and heavily-con-

tested issue in the case, i.e., whether a

partnership legally existed between plain-

tiff and defendant in the business of Flynn's

Tavern, was not decided, but was left unde-

cided, by the trial court, plaintiff elected

to appeal the decision to the Appellate

Division of the Superior Court.

erm 2 @ ©

What is unique about this litigation is

the fact that the defendant went to every

unlawful, criminal extreme to literally de-

stroy plaintiff Mary A. Connor's case at

both trial and appellate levels.

During the latter phase of the trial

litigation, when Petitioner was appearing

for his mother in court, John A. Lombardi,

Esq., defendant's attorney, submitted an

Affidavit to the court wherein he swore

under oath that a transcript of a hearing

before the New Jersey Division of Alcoholic

Beverage Control (A.B.C.) proved that this

Petitioner was "completely arrogant, hos-

tile, irrational and arbitrary in all re-

spects"* and requested that the court refuse

‘ The specifics of this and other mat-

ters discussed herein are more fully set

out in the record which Petitioner has,

under Supreme Court Rule 19.1, requested

be certified and transmitted to the U. S.

Supreme Court.

‘

to allow further appearances by Petitioner

for plaintiff. [See: Exhibit "X," Petition-

er's Supreme Court Appendix, pp. 34-61A]

Unfortunately for defendant, Petitioner,

having long since suspected that transcripts

were being "doctored" in this case, had

taken the precaution of taping the A. B. C.

hearing on a hidden Sony recorder and he

filed a corrected verson of the massively-

doctored transcript in response to defen-

dant's affidavit. The alteration of tran-

script is a criminal violation of N.J.S.A.

2A:136-1 (now N.J.S.A. 2C:21-4). The effort

to remove Petitioner from the court came to

an abrupt end.

2. 2: 2 2 2

The first affirmative attempt to destroy

plaintiff's appeal of the trial court's

judgment in Connor v. Flynn occurred when

plaintiff and Petitioner decided to retain

counsel for the specific and limited purpose

of securing the entry of a proper form of

judgment in this case.

The attorney retained [Robert B. Cherry,

Esq., Cherry and Petrie, 152 Market Street,

Paterson, New Jersey 07505] took it upon

himself, without the knowledge and author-

ity of plaintiff, to file two Notices of

Appeal of the Connor v. Flynn decision with

the Clerk of the Appellate Division. The

first was an appeal from the final judgment,

itself, while the second was an appeal from

the trial court's order denying plaintiff's

motion for a new trial.

Plaintiff, in the meanwhile, totally un-

aware Of Attorney Cherry's filings, had

filed her own Notice of Appeal pro se,

which the Appellate Division retu: ».ed to

plaintiff because of the Cherry filings.

Petitioner then visited the Appellate

Division's clerk's office and discovered

that the first Cherry Notice of Appeal from

the final judgment had been "voided" by the

Clerk while the second Chexsry Notice of Ap-

peal was duly docketed. Attorney Cherry,

acting without any authority, and in col-

lusion with the appellate clerk's office,

had arranged that Mary A. Connor was to

have no appeal from the Connor v. Flynn

final judgment on file when the 45-day time

limit for docketing such an appeal expired

on April 25, 1977. (R. 2:4-la) All plaintiff

was to have on file was a meaningless appeal

from a uenial of a motion for a new trial!

Plaintiff immediately fired the Attorney

Cherry and, on April 25, 1975, returned her

pro se Notice of Appeal to the Appellate

Division for filing and docketing. The

Division Clerk, Elizabeth McLaughlin, then

proceeded to "sit on" this notice of appeal

for nearly a month, until May 19, 1975, when

it was finally filed effective the date of

its original receipt in the Appellate Divi-

sion, or April 21, 1975. [See: Appellant

Mary A. Connor's brief filed with the Appel-

late Division, Appendix C-5]

. 2 .2f-28 @

At first glance, it appeared to plain-

tiff, and Petitioner, that they had some-

how emerged “unscathed" from the attempt

by Cherry to destroy their appeal of the

Connor v. Flynn judgment. Subsequent events

were to prove the assumption unfounded.

An earlier (1972) judgment in a compan-

ion case to Connor v. Flynn [Flynn v. Connor,

Docket No. C-3138-68] had ordered Flynn's

Tavern to be sold at a sheriff's sale. The

successful bidder, the defendant Flynn, was

compelled to comply with the terms of the

Judgment for Partition and had to deposit

the entire bid price of $90,000.00 into the

trust fund of the Superior Court -- even

though he already owned 2/3 of the business

versus plaintiff's 1/3 share. The judgment,

which was never appealed by defendant, pro-

vided that the monies were to remain on de-

posit with the court as security for plain-

tiff's affirmative claims against defendant

in Connor v. Flynn.

R. 4:57 et seq. governs the procedure for

the deposit and withdrawal of funds from

the Superior Court's trust fund and R. 4:57-

5 specifically provides that withdrawal of

such monies "shall be made only by order of

the court, which may be withheld pending ex-

piration of the time to appeal and during

the pendency of the appeal."

One year later, on July 13, 1976, plain-

tiff and Petitioner found out that on May l,

1975 (during the "interregnum" between the

return of plaintiff's pro se Notice of Ap-

peal on April 25, 1975 and its docketing on

May 19, 1975), the Clerk of the Superior

Court had released the defendant's two-

thirds (2/3) share, plus interest, or the

amount of $59,198.90, from the trust fund:

Had plaintiff's pro se Notice of Appeal

been promptly docketed by the Clerk of the

Appellate Division on its April 25, 1975 re-

ceipt, such a withdrawal could not have oc-

curred because on April 1, 1975 the Clerk

of the Superior Court had notified counsel

for defendant that the release of the mon-

ies would "not be approved until the expir-

ation of the time to appeal the order to

pay; provided, however, that no appeal is

taken." No copy of this letter, or notice

of the application, was ever sent to plain-

tiff, in violation of R. 4:57-5, and plain-

tiff only discovered the withdrawal a year

later after a routine inquiry to the Clerk

of the Superior Court on the current status

of the fund. [See: Appellant's Motion to

Compel Re-deposit of $59,198.90, With Inter-

est, to Superior Court Trust Fund, by Defen-

dant E. J. Flynn et al.>]

se. = 2 2

Failing to destroy plaintiff's appeal

outright, via the Cherry maneuver, albeit

succeeding in fraudulently removing the

$59,198.90 from the court trust fund, the

defendant next embarked on a strategy of

3 Motion was denied by Justice Robert A.

Matthews, P.J.A.D., Part G, Superior

Court-Appellate Division, on June 20, 1977.

"doctoring" and otherwise delaying the pro-

duction of the transcript plaintiff needed

for the prosecution of her appeal.

The file in the office of the Clerk of

the Appellate Division contains no less than

six (6) voluminous motions of deceased plain-

tiff Mary A. Connor to compel production of

the transcript she deemed necessary for the

prosecution of her appeal. The filing dates

of these motions were: December 9, 1975,

February 19, 1976, April 6, 1976, July 19,

1976, November 12, 1976 and January 3, 1977.

Every single motion was denied by the Appel-

late Division and, in particular, by Justice

Robert A. Matthews, P.J.A.D., who is the

Presiding Judge of Part G which sits in

Hackensack, Bergen County.

As a result of the denial of her last

transcript motion on January 28, 1977,

plaintiff filed her brief and appendix with

the Appellate Division on March 14, 1977.

On April 29, 1977 defendant Flynn filed a

response brief.

However, plaintiff found herself in the

position where she was not only proceeding

to appellate review of the trial court's

judgment in Connor v. Flynn without all

the transcript she had ordered and paid for,

but also with transcript whose certifica-

tions, for the most part, were legally in-

sufficient.

According to the Administrative Regula-

tions Governing Reporters in the New Jersey

Courts, all certified shorthand reporters

must use the following form of certifica-

tion:

"I certify the foregoing to be

a true and accurate transcript of

the testimony and proceedings in

the above-entitled cause."

With a single exception, not one of the

(eight) reporters who transcribed for this

case properly certified his or her tran-

script, employing, instead, various and

sundry certification forms wherein they cer-

tified only to their "stenographic notes" --

instead of to the testimony and proceedings

in Connor v. Flynn. [See: Exhibits "L"-"U"

of Petitioner's Supreme Court of New Jersey

Appendix]

To plaintiff and Petitioner, reading

transcripts that were virtually incoherent

in areas of critical testimony, these "free-

form" certifications were not erroneous but

deliberately contrived to "cover-up" whole-

sale transcript alteration. Moreover,

plaintiff had the evidence to prove her

charge of transcript "doctoring."

a ee

On May 2, 1977, before filing her reply

brief, Mary A. Connor moved, under R. 2:5-5

(a) Motion to Settle the Record in the

Chancery Division (trial court) for an or-

der to compel production of transcript.

Over the next six months Appellant filed

and argued several motions in the trial

court, with the last order being entered on

November 7, 1977 -- 17 days before the death

of plaintiff in Overlook Hospital, Summit,

New Jersey following unnecessary surgery.

(App. E, infra, p. 5a)

According to the terms of the November un

1977 Order: "Plaintiff's Motion to Settle

the Record [was] continued pending the re-

ceipt of transcript." (emphasis added)

Specifically, at the time of her death,

the following material portions of plain-

tiff's pending transcript motion remained

undecided or unresolved by the trial court:

1) the transcript certifications had not

been amended to conform with the required

form of certification and 2) plaintiff's

pending motion to incorporate two (2) tape

recordings [August 17, 1973 and April 27,

1973] into the trial record to prove her

allegations of transcript "doctoring," to

support her argument for a new trial in the

appellate court, had not been decided.

Furthermore, Reporter Ira S. Rubenstein had

not, in spite of a provision in the afore-

mentioned order of November 7, 1977, turned

over to plaintiff the transcript for the

defendant's expert accounting witness, Mr.

Richard Goldfinger, C. P. A.

This was the precise posture of Connor v.

Flynn when plaintiff Mary A. Connor died

suddenly on November 24, 1977 as a result

of cardiac shock following unnecessary

surgery at Overlook Hospital, Summit, N. J.

zxkeek*ketk

[In a separate Petition for Certiorari,

filed October 15, 1980 with the U. S.

Supreme Court, Petitioner recounts how the

trial court, after Mary A. Connor's death,

proceeded on the application of Hannoch,

Weisman, Stern & Besser to summarily ap-

point an Administrator to the Estate of

Mary A. Connor and how Petitioner, declining

to accept the validity of that appointment,

appealed the decision in the New Jersey

courts. ]

By terms of the Last Will and Testament

of Mary A. Connor Petitioner is not only ap-

pointed executor of his mother's estate but

also is bequeathed her interest in Connor v.

Flynn. Immediately after plaintiff's death,

Petitioner withheld probate of his mother's

will because of an erroneous death certifi-

cate. Later, after the trial court's sum-

mary action in appointing an administrator,

probate was withheld pending a final decision

on Petitioner's appeal of that appointment.

Petitioner also was of the opinion that it

was his duty as executor in pais to protect

this estate from an administrator who was,

and has proven to be, nothing more than a

Surrogate for Hannoch, Weisman, Stern & Bes-

ser (decedent's former counsel) whose func-

tion was to assist that firm in its never-

ending fraudulent schemes to plunder dece-

dent's estate, and, in particular, the trust

fund in the Superior Court which amounted to

approximately $50,000.00.°

4 On May 11, 1977 Albert G. Besser, Esq. had

a $28,657.94 award in attorneys' fees re-

As heretofore related, when plaintiff

passed away On November 24, 1977 Connor v.

Flynn was pending at the trial court on

plaintiff's motion to settle the record.

R. 2:5-5(a) Motion to Settle the Record spe-

cifically provides that: "The making of a

motion pursuant to this rule shall toll the

time for serving and filing the next brief

due, but the remaining time shall again be-

gin to run from the date of entry of an

order disposing of such a motion."

No order finally disposing of plaintiff's

motion had been entered by the trial court

when plaintiff passed away.

Nevertheless, the Appellate Division, on

March 8, 1978, proceeded to schedule oral

argument on Connor v. Flynn. On April 10,

1978 Petitioner advised Justice John F.

Lynch, P.J.A.D., Presiding Judge of Part "A"

versed by the Appellate Division (monies pay-

able out of the court trust fund); this at-

torney, in order to give the trial court jur-

“isdiction, filed his motion in the Cherry

appeal [A-2714-74] but the decision was hand-

ded down in plaintiff's pro se appeal, which

carried Docket No. A-2853-74! —

of the Appellate Division of the Superior

Court of New Jersey that jurisdiction of

the case remained in the trial court and

that Petitioner was not ready, at that time,

to substitute himself as party-plaintiff

for Mary A. Connor. (App. F and G, infra,

pp. 8-12a) No further action was taken by

Part "A" on Connor v. Flynn. [It is perti-

nent to note at this point that New Jersey

has neither a statute nor any’ court rule

that requires the substitution of a non-

party plaintiff within a given period of

time. ]

Petitioner proceeded to duly perfect his

appeal of the administrator's appointment

[Estate of Mary A. Connor, Docket No. A-

4484-77] and the following year, the Appel-

late Division scheduled oral argument on

same for September 11, 1979 -- along, again,

with Connor v. Flynn. (App. H, infra, p. 13a)

However, instead of being before Justice

Lynch, both appeals were now assigned to

Part "G," whose Presiding Judge, Robert A.

Matthews, had heretofore: denied plaintiff

Mary A. Connor's several motions for the

production of transcript; denied plaintiff's

motion to compel defendant Flynn to redepos-

it the $59,198.90 back into the court trust

fund; and declined to rule on Petitioner's

motion to disqualify himself from deciding

Connor v. Flynn, for reasons of "bias and

prejudice" but, instead had another judge

of his Part (Ard) deny the motion:

On September 5, 1979 Petitioner advised

Justice Matthews (as he had Justice Lynch

the year before) that Connor v. Flynn was

still legally pending in the trial court

and that Petitioner would not appear before

him for oral argument on September 1l, 1979

because he lacked jurisdiction in the mat-

ter. (App. I, infra, p. 15a)

On September 11, 1979, before court

commenced, Petitioner, having received no

response from the court to his letter of

September 5, 1979, again explicitly warned

Justice Matthews, via telegram, that Connor

v. Flynn was legally pending at the trial

level and that there had still been no sub-

stitution of parties for deceased plaintiff

Mary A. Connor. (App. J, infra, p. 17a)

| **xek*«ee

Totally failing in their many attempts

to negate, destroy or otherwise delay prose-

cution of this appeal, defendant's next stra-

tegy comprised a two-pronged wketiale on Peti-

tioner's legal position by the Administra-

tor and the court.

On Saturday, September 22, 1979, Peti-

tioner received in the mail a copy of the

Appellate Division's judgment in Connor v.

Flynn (affirming the trial court's decision),

which Justice Matthews had decided, notwith-

standing his lack of jurisdiction and the

fact that Petitioner had never been substi-

tuted for deceased plaintiff Mary A. Connor.

(App. K, infra, p. 18a)

On Sunday, September 23, 1979, Administra-

tor Warren secured Petitioner's arrest on a

year-old, outstanding bench warrant which he

had secured from the Chancery court when

Petitioner, because he was appealing the

administrator's appointment, properly de-

clined to attend an estate hearing in court.

The Chancery court, which kept Petitioner

incarcerated in jail until Wednesday, Sep-

tember 26, 1979, on that date, ordered

Petitioner's indefinite incarceration in

jail until he would agree to "turn over"

Mary A. Connor's will, and all estate assets,

to the court.

In order to gain his freedom, Petitioner

was compelled to comply with the court's or-

der, since bail was not available, and he

surrendered possession of decedent's will

and estate assets, which the court then

promptly turned over to the administrator,

who then delayed probate until December 4,

1979.

In the interim, the time to appeal the

Appellate Division's September 24, 1979 final

judgment in Connor v. Flynn was running.

Administrator Warren, in possession of

decedent plaintiff's will, delayed its pro-

bate from September 26, 1979 until December

4, 1979 -- November 8, 1979 being the last

day for filing an appeal with the New Jersey

Supreme Court in Connor v. Flynn.

Petitioner, unable to effect a substitu-

tion of parties in that case because of the

deliberate delay in probate, took advan-

tage of an exception to the general (New

Jersey) probate rule that only a personal

representative can litigate for an estate

by ordering the Administrator to file an ap-

peal in Connor v. Flynn on October 28, 1979.

(App. L, infra, p. 19a)

Naturally, the Administrator refused to

file the appeal -- on November 8, 1979, the

last day an appeal could have been filed.

(App. M, infra, p. 22a)

Petitioner, on the same date, however,

was prepared to, and did file with the New

Jersey Supreme Court, his own appeal of the

September 24, 1979 Appellate Division judg-

ment in Connor v. Flynn, A-2853-74.

In doing so, Petitioner relied upon an

"exception" to the general rule enunciated

in Niemaseck v. Bernett Holding Co., Inc.,

et al., 125 N. J. Eq. 284, 4 A.2da 797 (Ch.

1939) which states that: "[a] residuary

legatee can maintain suit for the benefit

of the estate when the administrator ne-

glects or refuses to sue." Accord:

Buchanan v. Buchanan, 75 N. J. Eq. 274 (E &

A, 1909).

The "squeeze" play on Petitioner, engi-

neered by the Administrator and the Justice

Matthews, by forceably removing decedent's

will from Petitioner's possession and delay-

ing its probate until it was too late to

file an appeal, met the same unsuccessful

fate as its predecessor -- the "Cherry" man-

euver.

Petitioner's as of right (pro se) appeal

to the New Jersey Supreme Court was filed,

of necessity, in his capacity as a benefic-

iary [Connor v. Flynn, Docket No. 16,605].

Petitioner then filed a motion, under R.

2:8-3(a) Motion for Summary Disposition,

to reverse the Appellate Division's judg-

ment in Connor v. Flynn and specifically

predicated his claim for reversal on the

argument that Petitioner's Fourteenth A-

mendment "due process" rights had been vio-

lated when the appellate court decided the

case before substitution of parties and

under circumstances where the appellate

court lacked the. necessary jurisdiction in

the first place.

On November 20, 1979 Defendant filed a

motion which, although it did not challenge

Petitioner's "standing" to maintain this

appeal as a beneficiary, requested the dis-

missal of the appeal for lack of a substan-

tial constitutional question.

On December 3, 1979 Petitioner replied

to defendant's motion, by submitting in

question form, the identical constitutional

issues raised in his brief filed in support

of his motion for summary reversal. At the

same time, Petitioner also filed a cross-

motion for certification nunc pro tunc on

the ground that the issue of transcript "doc-

toring" was a question of "general public im-

portance" sufficient to qualify for certi-

fication on the court's own motion, under

the doctrine enunciated in Piscataway Assoc.,

Inc. v. Township of Piscataway, 73 N. J. Eq.

547 (1977).

Petitioner's Motion for a Summary Reversal

was "ready" for disposition by the New Jersey

Supreme Court as early as the first week of

December, 1979 -- however, the court took no

action. In the meanwhile, Petitioner filed

an appeal of the Administrator's probate of

Mary A. Connor's will, which action had the

operative effect of suspending the will.

Davenport v. Davenport, 68 N. J. Eq. 611 (E &

A, 1904). In re Norrell, 137 N. J. Eq. 207

(E & A, 1945). State v. Williams, 9 Gil.

128 (Md. Ct. App. 1850).

xreekek tk

Finally, six months later, Petitioner

filed a motion in Connor v. Flynn with the

Chancery court under R. 2:5-5(a) Motion to

Settle the Record, to complete the motion

that was pending in this case before that

court when plaintiff Mary A. Connor died

on November 24, 1977.

Petitioner specifically moved for the

following relief:

* * * for an order: 1) ad-

mitting into evidence in the

within cause of action a tape

recording of the August 17,

’ 1973 hearing before the New

Jersey Division of Alcoholic

Beverage Control and a tape

recording of the April 27,

1973 motion hearing before the

Honorable John A. Ackerman, J.S.C.

and 2) ordering Ira S. Rubenstein,

C.S.R. to transcribe the trial

testimony of Richard Goldfinger,

C.P.A., within 30 days, and hold-

ing him in contempt of court

under Rule 1:10-2 for disobeying

the court's order of November 7,

1977.

Within one week of this motion being

= 30

filed with the trial court on June 18, 1980,

the New Jersey Supreme Court, on June 24,

1980, dismissed the within appeal on re-

spondent's motion (App. A, infra, p. la),

dismissed Petitioner's motion for summary

reversal (App. B, infra, p. 2a), and dis-

missed Petitioner's cross-motion for cer-

tification nunc pro tunc (App. C, infra,

p. 3a).

Petitioner filed a Petition for Recall

and Rehearing, which was denied by the New

Jersey Supreme Court on July 23, 1980.

(App. D, infra, p. 4a).

REASONS FOR GRANTING THE WRIT

The first point to be made in this

Petition is that Petitioner is not asking

the U. S. Supreme Court to grant certiorari

in order to review Connor v. Flynn on the

merits. Petitioner is requesting that this

Court grant certiorari to review certain ac-

tions of the New Jersey courts which have

injuriously deprived Petitioner of his "due

process" right to be substituted, as a non-

party survivor, for deceased plaintiff Mary

A. Connor in this case.

Petitioner's basic "due process" argument

herein is that the Appellate Division of the

Superior Court of New Jersey decided Connor

v. Flynn before a necessary substitution of

parties had occurred and also, when the ap-

pellate court lacked the necessary jurisdic-

tion in the matter, its September 24, 1979

decision (App. K, infra, p. 18a) thereby sub-

stantially violating Petitioner's Fourteenth

Amendment "due process" rights.

The June 25, 1980 Order of the New Jersey

Supreme Court, which is the subject of this

Petition, dismissed Petitioner's appeal

[Connor v. Flynn, Docket No. 16,605] on re-

spondent's motion, which had argued for dis-

missal on the sole ground that "there had

been no showing * * * of any substantial

constitutional question."

| Under New Jersey law, an appellant is en-

titled to a second appeal as of right only

"where the record reveals a substantial

rather than merely a colorable question a-

rising under the federal or state constitu-

tions that has not been the subject of a

conclusive judicial determination." In re

East Windsor Mun. Util. Auth. v. Shapiro, 57

N. J. 169, 170 (1970). The constitutional

points raised must not be palpably insubstan-

tial. Tidewater Oil Co. v. Mayor and Council

of Cartaret, 44 N. J. 338, 342, 209 A.2d 105,

106 (1965).

Neither of the specific constitutional

questions presented in this case and Petition

has been the subject of a prior conclusive

judicial determination. Moreover, the New

Jersey Supreme Court's dismissal of Petition-

er's appeal is in conflict with many decisions,

discussed hereinafter, from other state courts

of last resort, as well as federal courts of

appeal, on the issue of what constitutes pro-

cedural "due process" under the Fourteenth

Amendment.

zx*eeekt

Under the terms of the Last Will and

Testament of Mary A. Connor, Petitioner re-

ceives deceased plaintiff's interest in the

case entitled Connor v. Flynn. [In the trial

court, plaintiff had already won $6408.80,

while on appeal, plaintiff was attempting to

reverse an adverse decision on a claim in

excess of $200,000.]

Accordingly, Petitioner had a right, under

R. 4:34-1(b) Non-Party Survivors, to be sub-

stituted as party-plaintiff.

R. 4:34-1(b) provides that:

If a party dies and the claim

is not thereby extinguished, the

court shall on motion order sub-

stitution of the proper parties.

The motion for substitution may

be made by the successors or

representatives of the deceased

party or by any party * * *

(emphasis added)

Accordingly, R. 4:34-1(b) is mandatory

and must be complied with because Petitioner

is an "indispensable party” to the litiga-

tion. An indispensable party is one with-

out whose presence no adequate judgment can

be entered determining the rights of parties

before a court. Insurance Co. of North Amer-

ica v. Allied Crude Vegetable Oil Refining

Corp., 89 N. J. Super. 518, 215 A.2d 579

(1965).

Such a party is so indispensable that

"without his presence and binding adjudica-

tion as to his rights the court cannot proceed."

United Lacquer Mfg. Corp. v. Maas & Waldstein

Co., 111 F. Supp. 139 (U. S. D. C. 1953).

(emphasis added) Accord: Cobb v. Chatham

Trust Co., 136 N. J. Eq. 191, 41 A.2d 137

(Ch. 1945). Allen B. DuMont Laboratories v.

Marcalus Mfg. Co., 30 N. J. 290, 152 A.2a

841 (1959). Thatcher v. Jerry O'Mahony, Inc.,

——

39 N. J. Super. 330, 121 A.2d 50 (1956).

The Appellate Division's September 24,

1979 final judgment deciding Connor v. Flynn

is in conflict with two decisions from fed-

eral courts of appeal on this particular

point. The Court of Appeals, Third Circuit,

held in Chidester v. City of Newark, 162 F.2d

598 (C. A. 3) that an indispensable party was

a party who has "such an interest in the con-

troversy that a final decree cannot be made

without either affecting their interests or

leaving the controversy in such a condition

that a final determination may be wholly in-

consistent with equity and good conscience."

Id., at 598.

Furthermore, "[a]n absent party who has

such a direct interest in the litigation * * *

is an ‘indispensable party' if the court

cannot render justice between the parties in

his absence, if the decree will have an in-

jurious effect on his interest, or if the

final determination of the controversy in

his absence will be inconsistent with equity

and good conscience." Baird v. Peoples Bank

& Trust Co. of Westfield, 120 F.2d 1001, 136

A. L. R. 693 (C. A. 3).

New Jersey courts have specifically held

that "[w]hen a court of equity undertakes to

settle a question at issue, it should do so

effectively and permanently by bringing be-

fore it all parties necessary for that pur-

pose." Garnick v. Serewitch, 39 N. J. Super.

486, 121 A.2d 423 (Ch. 1956).

As heretofore related by Petitioner (See:

Statement, infra) New Jersey has neither a

statute nor any court rule which mandates

the probate of a will within a specific time

period. Nor is there any rule requiring th>

substitution of a party, under R. 4:34-1(b),

within a certain time.

The fact of the matter is that, for the

most part, since decedent's passing, Peti-

tioner has been appealing the Administrator's

May 26, 1978 appointment by the trial court

and also appealing that administrator's

December 4, 1979 probate of the Last Will and

Testament of Mary A. Connor -- which appeals,

under New Jersey probate law, have the opera-

tive legal effect of suspending not only the

Administrator's powers but also the operation

of the will, itself. Brown v. Ryder, 42 N. J.

Eq. 358 (Prerog. Ct. 1886). Davenport v.

Davenport, 68 N. J. Eq. 611 (E. & A. 1904).

c In re Norrell, 137 N. J. Eq. 207 (E. & A.

1945). State v. Williams, 9 Gil. 128 (Md.

Ct. App. 1850). ,

Accordingly, only upon the final resolu-

tion of the aforementioned cases, would Pe-

titioner be in a position to substitute him-

self for deceased plaintiff in Connor v. Flynn,

under R. 4:34-1(b), and that motion for

substitution would have to be made, not in

the Appellate Division, but in the Chancery

(trial) court, where Connor v. Flynn was

legally pending at the time of plaintiff's

death.

Wherefore, because the Appellate Division

of the Superior Court of New Jersey decided

Connor v. Flynn prior to the substitution of

Petitioner as party-plaintiff for decedent

Mary A. Connor, Petitioner has been denied

his "due process" right of substitution under

R. 4:34-1(b) as a non-party survivor, in vio-

lation of the Fourteenth Amendment.

xek tk

The constitutional limitations in the xIVv

Amendment and in the "due process" limitations

of the state constitution are designed to

safeguard fundamental rights of persons and

property against arbitrary and oppressive

state action. Washington Nat. Ins. Co. v.

Board of Review of N. J. Unemployment Conm-

pensation Commission, 1N. J. 545, 64 A.2da

443 (1949). ""[DJue process of law' means,

in the due course of legal proceedings ac-

cording to the rules and forms which have

been established for the protection of pri-

vate rights..." (emphasis added) Sinclair

v. Sinclair, 196 Tenn. 538, 268 S.W.2d 573,

575 (1954). Accord: Dupuy v. Tedora, 204

La. 560, 15 So.2d 886, 890 (1943). Dation

v. Ford Motor Co., 314 Mich. 152, 22 N.W.2d

252, 258 (1946).

- We have thus far seen the Appellate Divi-

sion's failure to follow R. 4:34-1(b) when

it decided Connor v. Flynn without Petition-

er's substitution. More seriously, the Ap-

pellate Division lacked the necessary juris-

diction to even decide Connor v. Flynn.

As heretofore recounted in Petitioner's

Statement, infra, at the point when decedent

Mary A. Connor passed away on November 24,

1977, Connor v. Flynn was pending at the

trial court under R. 2:5-5(a) Motion to

Settle the Record which specifically states

that:

If any party questions whe-

ther the record fully and truly

discloses what occurred in the

court or agency below, he shall

apply on motion to that court

or agency to settle the record

* * * [t]he making of a motion

pursuant to this rule shall toll

the time for serving and filing

the next brief due, but the re-

maining time shall again begin

to run from the date of entry

of an order disposing of such a

motion. (emphasis added)

R. 2:9-1 Control Prior to Appellate Dis-

position provides:

_ The supervision and control of

the proceedings on appeal or cer-

tification shall be in the appel-

late court from the time the appeal

is taken or the notice of petition

for certification filed unless

otherwise provided by rule.

(emphasis added)

R. 2:5-5(a) is just such a rule whereby

the filing of a motion to settle the record

with the trial court "preempts" the appellate

court's "supervision and control of the pro-

ceedings" (R. 2:9-la) until the "date of en-

try of an order disposing of such a motion"

(R. 2:5-5a).

That the November 7, 1977 order of the

trial court did not dispose of plaintiff's

motion to settle the record is apparent from

a reading of its terms, particularly Point 3,

which provided that: "[p]laintiff's Motion

to Settle the Record is continued pending

the receipt of transcript." (App. E, infra,

p. 5a)

As related in Petitioner's Statement,

infra, at the time of plaintiff's death, not

only had none of the reporters' certifica-

tions been amended but also one reporter had

not transcribed the testimony of defendant's

expert accounting witness. Additionally,

the trial court had not decided plaintiff's

motion to incorporate two tape recordings as

evidence in the trial record to prove her

allegations of transcript "doctoring" in

Connor v. Flynn.

"Jurisdiction" is the authority of the

law to act officially in the particular matter

at hand. Frazier v. Moffat, 239 P.2d 123,

108 C. A. 379 (2d Dist. Ct. App. 1951). If

a tribunal is otherwise without jurisdiction

over the subject matter of the case, even

waiver or consent cannot confer it. De Feo

v. Recorder's Court of the Town of Belleville,

129 N. J. L. 549, 30 A.2d 507 (1943). “If

this power does not exist with reference to

any particular case, its determination by

the court is an absolute nullity." Norback

v. Board of Directors of Church Extension

Soc., 84 Utah 506, 37 P.2d 339 (1934).

Wherefore, because of the fact that

decedent-plaintiff's R. 2:5-5(a) motion to

settle the record in Connor v. Flynn had

not been finally disposed of by the trial

court when Mary A. Connor passed away on

November 24, 1977, jurisdiction in the case

remained with the trial court and the Appel-

late Division lacked the necessary juris-

diction to decide Connor v. Flynn on Septem-

ber 24, 1979. In consequence whereof, the

the final judgment of the Appellate Division

is null and void.”

zx ek*"etk

It has been held that "mere errors or

irregularities in state court proceedings

are not sufficient to show a clear, pur-

poseful conspiracy to deny a [party] due

process." Skolnick v. Spolar, 317 F.2d

857 (1963).

The record in Connor v. Flynn, however,

is more than sufficient to establish the

existence of a conspiracy between defendant

and the courts to deny plaintiff and Peti-

tioner "due process" in this case.

Basic, fundamental rights were constant-

ly abridged in a continuing "brawl" to

5 Noted in support of this argument is the

conduct of Part "A" of the Appellate Division

which declined to hear oral argument in this

case on April 11, 1978 after being advised of

its status (App. G, infra, p. 10a) versus

that of Part "G" which proceeded to decide

the appeal the following year.

destroy an appeal of the trial court's de-

cision in Connor v. Flynn.

As heretofore related in Petitioner's

Statement:

I. Defendant's counsel John A. Lombardi,

Esq., filed a "doctored" transcript with the

trial court to build a case of irrationality

against Petitioner, in order to have him dis-

qualified as plaintiff's counsel (Statement,

infra, pp. 7-8);

II. Plaintiff's own attorney, Robert B.

Cherry, Esq., was a party along with the

Clerk of the Appellate Division, to a fraud-

ulent scheme to destroy plaintiff's appeal

of the trial court's judgment in Connor v.

Flynn by substituting a meaningless appeal

from the denial of a motion for a new trial

for a "voided" appeal]. from the final judg-

ment in this case(Statement, infra, pp. 8-10);

III. A total of $59,198.90 was removed

from the Superior Court trust fund, set up

by the court for Connor v. Flynn when the

Clerk of the Appellate Division deliberately

delayed docketing plaintiff's pro se notice

of appeal for an entire month (Statement,

infra, pp. 11-13);

IV. The Appellate Division denied no less

than six (6) motions of plaintiff to secure

the transcript she needed for the prosecu-

tion of her appeal (Statement, infra, p. 14);

V. With one exception, none of the

transcript certifications in Connor v. Flynn

conforms to that required by the State of

New Jersey's own regulations (Statement,

infra, p. 15-16);

VI. Ira S. Rubenstein, C.S.R. failed,

even under court order, to produce all the

transcript he was accountable for, failing

to transcribe the entire testimony of the

defendant's expert accounting witness, Mr.

Richard Goldfinger, C.P.A. (Statement, infra,

pp. 17-18); and,

VII. Plaintiff and Petitioner had two (2)

tape recordings to prove their charge of

transcript "“doctoring" in Connor v. Flynn

(Statement, infra, p. 17).

All of the above-listed "rollcall" vio-

lations of basic "due process" rights oc-

curred while plaintiff Mary A. Connor was

still alive and attempting to prosecute her

pro se appeal of the trial court's decision

in Connor v. Flynn.

The above-listed [I - VII] constitute

many, but by no means all, of the "due pro-

cess" violations accorded Mary A. Connor

during her pro se prosecution of Connor v.

Flynn.

In sum, they amounted to no less than

a denial, by the New Jersey courts, of

plaintiff's fundamental right, under R.

2:2-3, to an as of right review of the trial

court's decision in Connor v. Flynn. For

a state appellate court to deny, on six

occasions, plaintiff's motion for the pro-

duction of the transcript she needed to

prosecute her appeal evidences a specific

intent to deprive the appellant her right

of appeal.

Following plaintiff's death, the appellate

court interfered with Petitioner's "due pro-

cess" rights by deciding Connor v. Flynn

without Petitioner's substitution as a party

and without the necessary jurisdiction. See:

Justice Clark's dissent in Williams v. Georgia,

349 U. S. 375, 399 (1955).

In a final but futile attempt to prevent

further appellate review of Connor v. Flynn

Petitioner was even arrested by the admini-

strator, whose appointment was then under

appeal, and, aided and abetted by the court,

unlawfully seized decedent's will from his

possession -- and delayed its probate for

over two months until after the time had ex-

pired for taking an appeal of the Appellate

Division's judgment in Connor v. Flynn (See:

Statement, infra, pp. 23-27).

The real explanation for the Appellate

Division's conduct is found in its "at-all-

costs" attempt to prevent the reversal of

the trial court's judgment in Connor v. Flynn

on grounds of transcript "doctoring" and the

consequent necessity of preventing the intro-

duction into evidence of Petitioner's tape

recordings.

According to the Administrative Regula-

tions Governing Reporters in the New Jersey

Courts, all certified shorthand reporters

must use the following certification:

"I certify the foregoing to

be a true and accurate tran-

script of the testimony and

proceedings in the above-entit-

led cause."

A certified transcript has been held by

the courts to be a "writing so signed and

authenticated as to be legal evidence."

People v. Foster, 58 N. Y. S. 574, 27 Misc.

576, 582 (Sup. Ct. 1899). Furthermore, the

certificate testifies to the truth of the

record and a " ...purported certificate which

does not testify to the truth is really not

a certificate." Mosely v. Carswell, 152 S.E.

856, 41 Ga. App. 267 (Ct. App. 1930).

According to Corpus Juris Secundum:

"The certificate must show that

the transcript as far as it goes,

is the transcript of the record

remaining in the lower court....

If the certification fails to re-

cite that the transcript is com-

plete or shows by its recitals

that it is incomplete, the certi-

ficate is insufficient..."

4A C. J. S. Certifications, §30 at 1037.

Wherefore, when measured against the afore-

mentioned standard, and the form of certifi-

cation required by the Administrative Office

of the Courts, the following transcripts are

legally inadmissable as evidence in this case:

[April 27, 1973 Transcript: Reporter Ellen

Morris] certifies only to the accuracy of her

“stenographic notes"; [July 30, 1973 Trans-

cript: Reporter Ben Rose] similarly certifies

only to "stenographic notes"; [March 13-14,

1972 Transcript: Reporter Ray Mastandrea] cer-

tifies only to "original stenographic notes";

(March 14, 1972 Transcript: Reporter Mastan-

rea] certifies to the accuracy of testimony

"as taken by me stenographically"; [March 15,

1972 Transcript: same reporter] certifies only

to a "stenographic record"; [March 16, 1972

Transcript: Reporter James Applin], omitting

any reference to "testimony" certifies only

. to "proceedings had in the above matter";

[March 21, 1972 Transcript: Reporter Ira S.

Rubenstein] similarly omits any reference to

“testimony"; [April 10, 1972 Transcript: Re-

porter Rust] certifies to "original steno-

graphic notes * * * taken * * * to the best

of [his] knowledge and ability"; [January 9,

1975 Transcript: Reporter Michele Henley]

certifies only to her "stenographic notes."

Not one of these certifications conforms to

that required by the Administrative Office of

the Courts in its regulations.

It is obvious that, criminal conduct aside,

not one of the aforementioned transcripts is

admissable in evidence on appeal in this case.

It is further apparent that, with the intro-

duction into evidence of the aforementioned

(two) tape recordings, Connor v. Flynn can

only end in a new trial being ordered by an

appellate court -- not in an affirmance of

the trial court's decision.

x* eke tk

That the intent of the New Jersey Supreme

Court is to prevent a reversal of the deci-

sion in Connor v. Flynn on grounds of tran-

script "doctoring" is evidenced by the ex-

treme rapidity with which that court, after

taking no action on this appeal for six

months, dismissed the appeal on June 24, 1980

one week after Petitioner filed a motion un-

der R. 2:5-5(a) returning the case to the

trial court (App. N, infra, p. 24a)for the

specific purposes of adding the tape reccrd-

ings to the trial record and ordering the

production of critical, missing defense tes-

timony by a certain reporter.

Under these circumstances, the New Jersey

Supreme Court's action in dismissing Peti-

tioner's appeal of the Appellate Division's

affirmance of the trial court's decision in

Connor v. Flynn, in the face of the two sub-

stantial constitutional questions presented

herein, perpetuates the Appellate Division's

violation of Petitioner's XIV Amendment “due

process" rights and constitutes a (mis) use

by the Supreme Court of a procedural "obstacle"

to prevent a fair adjudication of Petitioner's

as of right appeal-on the merits.

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

KR ° ROR: Pro se

12 October, 1980

APPENDIX A

ORDER OF THE SUPREME COURT OF NEW JERSEY

SUPREME COURT OF NEW JERSEY

Docket No. 16,605

(Decided June 24, 1980)

In the matter of

MARY A. CONNOR, Individually

and as Executrix of the

Estate of Mary Ellen Flynn,

Plaintiff-Respondent,

Vv.

EDWARD J. FLYNN,

De fendant-Movant.

This matter having been duly presented

to the Court, it is ORDERED that the motion

to dismiss the appeal is granted.

WITNESS, the Honorable Robert N. Wilentz,

Chief Justice, at Trenton, this 24th day

of June, 1980.

/s/STEPHEN W. TOWNSEND,

Clerk

APPENDIX B

ORDER OF THE SUPREME COURT OF NEW JERSEY

SUPREME COURT OF NEW JERSEY

Docket No. 16,605

(Decided June 24, 1980)

In the matter of

(John Connor pro se-Movant)

MARY A. CONNOR, Individually

and as Executrix of the

Estate of Mary Ellen Flynn,

Plaintiff,

Vv.

EDWARD J. FLYNN,

De fendant-Respondent.

This matter having been duly presented

to the Court, it is ORDERED that the motion

for summary reversal is dismissed as moot.

WITNESS, the Honorable Robert N. Wilentz,

Chief Justice, at Trenton, this 24th day

of June, 1980.

/s/STEPHEN W. TOWNSEND,

Clerk.

APPENDIX C

ORDER OF THE SUPREME COURT OF NEW JERSEY

SUPREME COURT OF NEW JERSEY

Docket No. 16,605

(Decided June 24, 1980)

In the matter of

(John Connor pro se-Movant)

MARY A. CONNOR, Individually

and as Executrix of the

Estate of Mary Ellen Flynn,

Plaintiff,

Vv.

EDWARD J. FLYNN,

De fendant-Respondent.

This matter having been duly presented

to the Court, it is ORDERED that the motion

for certification nunc pro tunc on the

Court's own motion is dismissed as moot.

WITNESS, the Honorable Robert N. Wilentz,

Chief Justice, at Trenton, this 24th day

of June, 1980.

/s/STEPHEN W. TOWNSEND,

Clerk.

APPENDIX D

ORDER OF THE SUPREME COURT OF NEW JERSEY

SUPREME COURT OF NEW JERSEY

Docket No. 16,605

(Decided July 21, 1980)

. In the matter of

MARY A. CONNOR, etc.,

Plaintiff,

EDWARD J. FLYNN,

De fendant-Respondent.

This matter having been duly presented

4 to the Court, it is ORDERED that the motion

of John Connor for rehearing is denied.

WITNESS, the Honorable Robert N. Wilentz,

Chief Justice, at Trenton, this 2lst day

of July, 1980.

/s/STEPHEN W. TOWNSEND,

Clerk.

APPENDIX E

Mary A. Connor, Pro se

380 Wyoming Avenue

Millburn, New Jersey 07041

(201) 762-5587

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION: ESSEX COUNTY

DOCKET NO. C-2565-68

In the matter of

MARY A. CONNOR, Individually and:

as Executrix of the Estate of

Mary Ellen Flynn, $ Civil

: Action

Plaintiff-Appellant, =:

-vs- g ORDER

EDWARD J. FLYNN,

De fendant-Respondent.

The matter came on for a hearing in the

Superior Court, Chancery Division, Essex

County, before the Honorable Arthur C.

Dwyer, J.S.C. on October 21, 1977, Plaintiff

appearing pro se, no appearance for respon-

dents.

The court, having read Plaintiff's mov-

ing papers for relief under Rule 2:5-5(a)

Motion to Settle the Record, and being ad-

vised of Reporter Ira Rubenstein's position

that he will produce the outstanding tran-

script for March 20-21-22, 1972:

It is on this 4th day of November, 1977

ORDERED that:

1. Reporter Ira Rubenstein, C.S.R., turn

over to Appellant and file with the Clerk

of the Appellate Division, within 30 days,

the transcript for March 20-21-22, 1972

in Connor v. Flynn, C-2565-68.

2. Reporters Raymond J. Mastandrea,

Michele Henley, Ira Rubenstein, James G.

Applin, William J. Rust, Samuel Vander

Valk, Ellen Morris and Benjamin Rose advise

Appellant, within 10 days, if they possess

any stenographic notes for witnesses whose

testimony remains untranscribed in Connor

v. Flynn, C-2565-68, which testimony, if

ordered by Appellant, shall be produced by

the respective reporter(s) within 30 days

of its being ordered.

3. Plaintiff's Motion to Settle the Re-

cord is continued pending the receipt of

transcript.

IT IS FURTHER ORDERED that a copy of

this order be served upon the respondent

Certified Shorthand Reporters by certified

mail or personal service within five days

of the date hereof.

/s/ARTHUR C. DWYER, J.S.C.

APPENDIX F

SUPERIOR COURT OF NEW JERSEY

Appellate Division

State House Annex

Trenton, N.J.

March 8, 1978

a A. Connor, Pro se

380 Wyoming Avenue

Millburn, N. J. 07041

John A. Lombardi, Esq.

441 Springfield Avenue

Summit, N. J. 07901

CASE # A-2853-74

RE: Mary A. Connor v. Edward J. Flynn

The above entitled appeal will be called

for argument on Tuesday, April 11, 1978 in

the courtroom of the SUPERIOR COURT OF NEW

JERSEY, APPELLATE DIVISION, PART A, at

10:00 a.m., Room 438, State House Annex,

Trenton, N. J.

BEFORE JUDGES Lynch, Kole, Petrella

On appeals only, please endorse on the

enclosed copy the name of counsel who will

argue the appeal and the time he will re-

quire, and forward by return mail.

Yours very truly,

/s/ ELIZABETH MCLAUGHLIN

Clerk of the Appellate

Division

PHONE: 609-292-4822-23

Name of counsel:

Estimated time:

10a

APPENDIX G

380 Wyoming Avenue

Millburn, N. J. 07041

10 April, 1978

Justice John F. Lynch, P.J.A.D.

Superior Court of New Jersey

Appellate Division - Part "A" Re: Connor

State House Annex v. Flynn,

Trenton, N. J. 08625 Docket No.

A-2853-74

Dear Justice Lynch:

This letter will formally advise the

Court that the above appeal, scheduled to

be called before you for oral argument on

Tuesday, April 11, 1978 at 10 a.m., is not

ready for oral argument.

The Clerk of the Appellate Division has

been advised of this fact on numerous oc-

casions in the past several months -- but

apparently to no avail.

I enclose herewith a copy of the last

Order, dated 11/7/77, entered in this case

by Judge Arthur C. Dwyer, J.S.C. before

whom this case was (and is still) pending,

under R. 2:5-5(a), Motion to Settle the

Record, at the time of the death of plain-

lla

tiff Mary A. Connor on November 24, 1977.

Point 3 of this Order specifically pro-

vides that: "Plaintiff's Motion to Settle

the Record is continued pending the receipt

of transcript." In fact, much remains to

be done at the trial level on correcting

the record in this case, to mention only

at this point the continuing failure of

Reporter Rubenstein to obey this order and

turn over the entire transcript for March

22, 1972. Missing is the entire testimony

of Mr. Richard Goldfinger, C.P.A., accoun-

tant for the Defendant Flynn -- which tes-

timony is absolutely essential for prose-

cution of this appeal.

Before formally substituting myself for

plaintiff in this action, under R. 4:34-lb,

there is going to be an inquiry into the

suspicious circumstances surrounding the

death of Mary A. Connor at the Overlook

Hospital on November 24, 1977. Only upon

the resolution of the proper "cause of

death" on my mother's death certificate,

12a

will I qualify as Executor and substitute

myself as party-plaintiff.

In the meanwhile, be advised that I

have applied to the Essex County Probate

Court tO&*ve appointed Executor, in lieu of

Mary A. Connor, of the Estate of Mary Ellen

Flynn -- which is also a party to the above-

entitled case.

Very truly yours,

/s/ JOHN R. CONNOR

cc: Attorney General Griffin Bell

U. S. Department of Justice

Washington, D. C. 20530

Governor Brendan Byrne

The State House

Trenton, N. J. 08625

13a

APPENDIX H

SUPERIOR COURT OF NEW JERSEY

Appellate Division

State House Annex

Trenton, N.J.

July 17, 1979

TO: John R. Connor

380 Wyoming Ave.

Millburn, N. J. 07041

John Anthony Lombardi, Esq.

441 Springfield Avenue

Summit, N. J. 07901

CASE # A-2853-74

RE Connor v. Flynn

The above entitled appeal will be called

for argument on Tuesday, September 11, 1979

in the courtroom of the SUPERIOR COURT OF

NEW JERSEY, APPELLATE DIVISION, PART G,

at 10:00 a.m. Room 217, Bergen County Court

House, Hackensack, New Jersey.

BEFORE JUDGES

On appeals only, please endorse on the

enclosed copy the name of counsel who will

argue the appeal and the time he will re-

quire, and forward by return mail.

l4a

Very truly yours,

/s/ ELIZABETH MCLAUGHLIN

Clerk of the Appellate

Division

PHONE: 609-292-4822-23

Name of counsel:

Estimated time:

15a

APPENDIX I

380 Wyoming Avenue

Millburn, N. J. 07041

5 September, 1979

Justice Robert A. Matthews, P.J.A.D.

Superior Court of New Jersey

Appellate Division - Part G Re: Connor v.

Bergen County Courthouse Flynn, Docket

Hackensack, New Jersey No. A-2853-74

Dear Justice Matthews:

I have received the attached notice

from Ms. Elizabeth McLaughlin, Clerk of

the Appellate Division, stating that the

above appeal is scheduled to be called for

Oral argument before Part G on September

11, 1979 at 10:00 a.m.

I enclose herewith a copy of the last

order, dated November 7, 1977, entered in

this case by the Justice Arthur C. Dwyer,

J.S.C., before this case was -- and still

is -- pending, under Rule 2:5-5(a) Motion

to Settle the Record, at the time of death

of Plaintiff Mary A. Connor.

Jurisdiction, accordingly, remains with

the trial court, pending final settlement

l6a

of this motion, and I will not appear

before the court in the above matter on

September 11, 1979.

Yours,

/s/ JOHN R. CONNOR

cc: J. A. Lombardi, Esq.

441 Springfield Avenue

Summit, New Jersey 07901

17a

APPENDIX J

WESTERN UNION TELEGRAM

TO Justice Robert A. Matthews, P.J.A.D.

ADDRESS & TELEPHONE NO. Superior Court of

New Jersey-Appellate Division-Part "G"

CITY-STATE & ZIP CODE Bergen County Court-

house, Hackensack, New Jersey

BE ADVISED THAT AT 8:00 A.M. THIS MORN-

ING, SEPTEMBER 11, 1979, APPELLANT JOHN R.

CONNOR SERVED A MOTION UNDER R. 1:12-2 TO

DISQUALIFY YOU FROM A-4484-77.

FURTHERMORE, IF YOU TAKE ANY ACTION IN

A-2853-74, BEFORE SUBSTITUTION OF PARTIES

AND WHILE THAT CASE IS STILL PENDING AT THE

TRIAL LEVEL, I WILL PROMPTLY FILE A CRIMI-

NAL COMPLAINT AGAINST YOU FOR OBSTRUCTING

JUSTICE.

/s/ JOHN R. CONNOR

18a

APPENDIX K

JUDGMENT OF THE SUPERIOR COURT,

APPELLATE DIVISION

A-2853-74

MARY A. CONNOR, Individually

and as Executrix of the Estate

of Mary Ellen Flynn,

Plaintiff-Appellant,

EDWARD J. FLYNN,

Defendant~-Respondent.

Submitted September 11, 1979 --

Decided Sep 24 1979

Before Judges Matthews, Ard and Polow

On appeal from the Superior Court,

Chancery Division, Essex County.

There was no appearance on behalf of

Mary Connor, pro se, who is now

deceased.

Mr. John Anthony Lombardi, attorney for

respondent.

PER CURIAM

The judgment of the chancery division is

affirmed for the reasons expressed by the

late Judge John A. Ackerman in his letter

opinion dated November 20, 1974.

19a

APPENDIX L

380 Wyoming Avenue

Millburn, N. J. 07041

28 October, 1979

Mr. George Warren, Esq.

112 Nassau Street Re: Connor v.

P. O. Box 645 Flynn, Docket

Princeton, N. J. 08540 No. A-2853-74

Dear Mr. Warren:

Enclosed herewith are the following

materials:

l- Notice of Appeal, dated

10/28/79, to the Supreme

Court of New Jersey in the

above-entitled matter;

l- Notice of Motion, of same

date, to Reverse Final Judg-

ment of Appellate Division;

1l- Letter Brief and Appendix,

of same date, to Support

Notice of Motion to Reverse

Final Judgment of Appellate

Division.

You are the Administrator of the Estate

of Mary A. Connor and, accordingly, are

vested by law with the legal duty to protect

and perfect decedent's litigation. In fact,

you were present in the Bergen County Court-

house on September 11, 1979 when this appeal

20a

was called for oral argument and are there-

fore chargeable with knowledge of its exis-

tence and status.

The 45-day period for filing this appeal

expires on November 8, 1979 -- 6 days

before the date you and Justice Gaulkin se-

lected for the probate of my mother's will.

Therefore, in order to ensure that this

appeal does not lapse because of inaction,

I am hereby ordering you to sign and file

the enclosed pleadings with the New Jersey

Supreme Court [I. original of Notice of

Appeal with $20.00 fee to the Supreme

Court, copy with $5.00 fee to Appellate

Division, copy to John A. Lombardi, Esq.,

attorney for respondent Flynn; II. origi-

nal of Notice of Motion and Letter Brief

with Appendix to be filed with the Supreme

Court, copies to be served on respondent].

I am also ordering you to serve and file

the appropriate number of copies of said

pleadings, briefs, appendices, etc. with

the court and respondent, in accordance

21a

with R. 2:6-12(a) (c).

I further advise you that I will be re-

sponsible for all costs in connection with

this filing and that you are not authorized

to make any substantive changes in any of

the enclosed papers.

In view of the November 8, 1979 dead-

line, I herein order you to file this ma-

terial forthwith and to advise me immediately

of that fact, in writing.

Very truly yours,

/s/ JOHN R. CONNOR

22a

APPENDIX M

November 8, 1979

Mr. John R. Connor

380 Wyoming Avenue

Millburn, New Jersey 07041

Re: Connor v. Flynn, A-2853-74

Dear Mr. Connor:

Your letter of October 28th was received

November 1 while I was out of the office,

hence the delay in this response. With re-

spect to its content, I have no standing

in my capacity as Administrator of the Es-

tate of Mary A. Connor to file notices in

a matter in which the plaintiff was your

late mother individually and as Executrix

of the Estate of Mary Ellen Flynn. The only

way in which any pleading from me would be

recognized would be if I were substituted

for Mary A. Connor, individually. Not only

was I unaware of any basis for an appeal of

the Appellate Division judgment but, even

if there were some basis, it would seem to

me that you would be the last person, in

23a

view of your position with respect to my

appointment, that would have approved of

my taking such a step. More to the point

is the fact that the unanimous judgment was

entered September 24, 1979. The only appeal

available is not by motion to reverse (your

headings) but by petition for certification.

Under Rule 2:12, such petition must be filed

within 20 days from the time of judgment.

Consequently you are out of time. Nor did

the documents you typed and sent me in any

way comply with the requirement of that

Rule. For all of the above reasons, I have

not signed or filed the "Notice of Appeal...

Notice of Motion..." nor the Brief you pre-

pared for my signature. The two checks you

enclosed payable to the Clerk of the Super-

ior Court, one in the sum of $20.00 and the

other in the sum of $5.00, are herewith re-

turned.

Sincerely yours,

/s/ GEORGE WARREN

24a

APPENDIX N

John R. Connor, Pro se Beneficiary,

Estate of Mary A. Connor

380 Wyoming Avenue

Millburn, New Jersey 07041

(201) 762-5587

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION: ESSEX COUNTY

DOCKET NO. C-2565-68

In the matter of

MARY A. CONNOR, Individually

and as Executrix of the

Estate of Mary Ellen Flynn,

Plaintiff-Appellant,

Vv.

e EDWARD J. FLYNN,

De fendant-Respondent.

Civil Action

NOTICE OF MOTION TO

SETTLE THE RECORD-Cont'd.

(R. 2:5-5a)

25a

TO: Mr. John A. Lombardi, Esq.

441 Springfield Avenue

Summit, New Jersey 07901

Mr. Ira Rubenstein, C.S.R.

37 Mitchell Avenue

Piscataway, New Jersey 08854

Ms. Ellen Morris, C.S.R.

18 Jonquil Avenue

Fords, New Jersey 08863

Information only:

Clerk of the Supreme Court

State House Annex

Trenton, New Jersey 08625

PLEASE TAKE NOTICE that on Friday, the

18th of July, 1980 at 9:00 o'clock in the

forenoon, or as soon thereafter as the mat-

ter can be heard, the undersigned Appellant

will apply, under Rule 2:5-5a Motion to

Settle the Record, to the Honorable Arthur

C. Dwyer, J.S.C., Superior Court of New Jer-

sey, Chancery Division, Essex County Court-

house, Newark, New Jersey 07102 for an or-

der: 1) admitting into evidence in the

within cause of action a tape recording of

the August 17, 1973 hearing before the New

Jersey Division of Alcoholic Beverage

26a

Control and a tape recording of the April

27, 1973 motion hearing before the Honor-

able John A. Ackerman, J.S.C. and 2) order-

ing Ira S. Rubenstein, C.S.R. to transcribe

the trial testimony of Richard Goldfinger,

C. P. A., within 30 days, and holding him

in contempt of court under Rule 1:10-2 for

disobeying the court's order of November 7,

1977.

In support of this continuing motion,

Appellant will rely, as heretofore, on all

prior papers filed with the court in the

matter and his Certification, dated 16 June,

1980, annexed hereto.

/s/ JOHN R. CONNOR

16 June, 1980

Certificate of Service

Appellant herein certifies that he has

served a clear copy of the within motion

upon all parties by mailing same, first-

class mail, to their respective places of

business.

/s/ JOHN R. CONNOR

16 June, 1980

27a

APPENDIX O

John R. Connor, Pro se

380 Wyoming Avenue

Millburn, New Jersey 07041

(201) 762-5587

In the matter of

MARY A. CONNOR, Individually: Civil Action

and as Executrix of the

Estate of Mary Ellen Flynn, :

Plaintiff-Appellant, : AFFIDAVIT

V e 4

EDWARD J. FLYNN, H

De fendant-Respondent.:

PENNS/LVAN/ 4

State Oe,

County of Mh. letlalphee

SS:

Personally appeared before me John R.

Connor, who, first being duly sworn, upon

his oath, deposes and says that:

1. I have read the facts set forth in

the Statement to my Petition for a Writ of

Certiorari, dated October 12, 1980, and

I aver, of my own knowledge, that such

facts are true and correct.

“Sf VR Reece Pa

(Signature of Affiant)

Signed and sealed.

before me this/7 day of October, 1980

pe) illo

ry Public

sen an New—Jersey

VAX IA

sown Lahey 1 **

Notery Public, Phila. Phila, Gn.

My Comentanton Gaps Aug, G2, 1008

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.