# Petition — Connor v. Flynn

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1079

## Text

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,
Ve

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 ]

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.

14

"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

15

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" --

16
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,

y?

17
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

18

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
4

[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

be

19

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-

20
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! —

21
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.

22
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

23

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

24

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

25

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

26

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

27

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

28

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

29

(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).

31

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

32

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).

33

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-

34

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).

35

(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 * * *

36

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),

37

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,

38

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.

39

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

40

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"

41

(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

42

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

43

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.

44

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

45

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

46

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

47

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-

48

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.

49

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

50
"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
4

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

51
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-

52

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

la
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

2a
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.

3a
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.

4a
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,
Ve

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.

5a
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-

6a
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-

7a
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.

8a
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.

9a

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,
Ve

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0662%3A1. Public record. Not legal advice.