Petition — Brunwasser v. Strassburger

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Office-Supreme Court, U.S.

FI LED

80-2029] sui te

ara -

in the Supreme Court of the

Unjted States

October Term, 1980

ALLEN N. BRUNWASSER,

Petitioner

Vv.

JUDGE EUGENE B. STRASSBURGER, III; ALEXANDER

UNKOVIC, ESQUIRE; GRACE S. HARRIS, ESQUIRE;

JOSEPH L. COSETTI, ESQUIRE; CARL E. GLOCK, JR.,

ESQUIRE; CHARLES C. KELLER, ESQUIRE; HERBERT

MARGOLIS, ESQUIRE; CHESTER H. BYERLY, ESQUIRE;

THE DISCIPLINARY BOARD OF THE SUPREME COURT

OF PENNSYLVANIA; ALLEN B. ZERFOSS, ESQUIRE,

Chief Disciplinary Counsel; and EDWARD A. BURKART,

ESQUIRE, Assistant Disciplinary Counsel

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

ALLEN N. BRUNWASSER

Petitioner

903 B Grant Building

Pittsburgh, PA 15219

(412) 391-0728

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244

Question Presented for Review

(A) THE QUESTION PRESENTED FOR RE-

VIEW IS:

Should the Federal Court policy to abstain when a

lawyer is disciplined by the state court which gave him

his license be extended to include a proceeding where the

lawyer produced prima facie evidence of improper prose-

cutorial and judicial conduct which might have infected

the lawyer’s Fifth and Fourteenth Amendment right to a

fair and unbiased trial plus review and the state court

system refuses to provide a remedy to explore this?

(B) THE LIST OF PARTIES is contained in the

caption of this petition to review the decision of the United

States Court of Appeals for the Third Circuit.

TABLE OF CONTENTS

PAGE

PETITION:

(A) The Question Presented for Review ............. i

CH) TED RR Ge GOD i cescncctccatienvgcackensetisccnsvasion i

CD) Oplertons: ' Beko ° ..cisecscccdscocsrsesstuvoavscapsieddveenhs 1

(E) The Grounds for Jurisdiction ..................:s00+ 1

(F) Constitutional Provisions and Statutes In-

VORVIEE . .cxscssrocesiecnsnenessoseccesvsedaebslaaaneanaaineseaapaane 2

(G) Concise Statement of the Case Containing

the Facts Material to the Consideration of the

OChusuthonin Prqeeute’ 5 .scoscccocccseensorsonscvcbsvteqetnienen 3

(H) Argument Amplifying the Reasons Relied on

for the Allowance of the Wit ..........csccssseeees 11

(I) Conclusion and Request for Relief .............00+ 28

APPENDIX:

Text of Amendments to the Constitution ................ la

Excerpts United States Code .............sccssrcsssossssceees 3a

Code of Professional Responsibility ..............0000+ + 13a

Disciplinary Enforcement Rules ............0sseecsseeeeees 14a

Disciplinary Board Rubles «.....ccccscccessesosteonssssbssnesedeces 18a

Excerpts From Proceedings, May 2, 1980 ...........+ 19a

Opinion in the United States District Court for the

Western District of Pennsylvania ............000+ 25a

Order May 29; 1980 -..ccscocsssessicscccssvescodoesses 39a

Memorandum Order, June 2, 1980 ..........ccccccccccccceee 40a

NS en 42a

Ce Ey ei Sai cc sicecccenes 44a

Sy By UMD sstidsincndesnsunsdliiocdenscsneceedactaiveanses 47a

Judgment Order, Court of Appeals .............ccc:cccee0ee 48a

SP, PRET Dy TUR senkskiactopeuaentabrlnssnsecsdlboccebone 50a

TABLE OF CITATIONS

CASES:

Allen v. McCurry, 101 S.Ct. 411, —— U.S. ——

CI: asticaiiliescadidescnsdipbacicdibphunsens'ecdiniaaicbipiindbissenée 26

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

PUUNIEE F* | acoccnabacsixttvadestdecaheatbudidantitielae sh vesids 22, 23

Batista v. Weir, C.A. 3, 340 F.2d 74 (1965) .......... 24

Carrington v. Rash, 85 U.S. 775, 380 U.S. 89

a accel 29

Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476 ........ 18

Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664

PATTIE = cnlaccthshbanedibinslaintasdhnbscuteabiestiaivmestenteds 19

Friedman v. Rodgers, 99 S.Ct. 887 (1979) .......... 22

Garrison v. Louisiana, 85 S.Ct. 209, 379 U.S. 64

(Neck kati ARE ARES l=) Sans SE AEE Ee 11

Gately v. Sutton, C.A. 10, 310 F.2d 107 (1962) ....11, 12

Gibson v. Berryhill, 93 S.Ct. 1689, 411 U.S. 564

CRITE = crhsgseiisidenacsiasaridesbtabnennagiatigtotepten 21, 22, 25, 26

Gibson v. Supreme Court of New Jersey, C.A. 3,

Sy em TE. CREED | sxpeincocetnqeiccccotomncecqertsesceie 22

Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011

IIE wncrcasscceccacudetevesesabehcedbanbsspuuiahiehipineseietes 21

Goodwin Motor Corp. v. Mercedes Benz, 172 N. J.

es SEL Pee. 2294 CEB) Scccsicdidiceesicecreerren 12

Graham v. Mars Area School District, 52 Pa. Com-

monwealth Ct. 116, 415 A.2d 924 ...........00.. 22

Greek Catholic Union v. Russin, 340 Pa. 295

CIE saves debate dindir ts delicRichachcacmceinbintcdaibabintcecccsnedi 5

Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490

CRIP” scranthha dia ah cinanceudsuntenandealisleetianeebaserecsessete 20

Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848

IED ac tcsttetsintastbcbolestecksainannhadeehenieceetaescibeces 20, 21

Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375

CII: cepuiccisdonctasnxescmabbconeaasilebtaainsaiecette 28

In re Ruffalo, 88 S.C. 1222, 390 U.S. 544

COREE shccckddciasbsusstbabigatcadenshcandthediats souttantdheccine 9,18

In re Schlesinger, 404 Pa. 584, 172 A.2d 835 ......... 21

In the Matter of Little, 92 S.Ct. 659, 404 U.S. 553

fe RAMTEC eed RR Se, RS a eee SSR 18

Kauffman v. Moss, C.A. 3, 420 F.2d 1270 (1970) 24

Lawler v. Nat. Screen Service, 349 U.S. 322 (1954) 24

Maness v. Meyers, 95 S.Ct. 584, 419 U.S. 449

RE UNNIND “aschicesia scent lndacnsaesackeabiesacasecumiaubiesssvonrtah 18, 22

Marshall v. Jerrico, Inc., 100 S.Ct. 1610, ——

USS. SIE. indusccssnedelidedtadesnataiitanenaabeienspeics 11,21

Meyers v. Alldridge, C.A. 3, 492 F.2d 305 (1974) 21

Mildner v. Gulotta, 405 Fed. Supp. 182, aff’d per

curiam, 96 S.Ct. 1489, 425 U.S. 901 (1976) 22

Montana v. United States, 440 U.S. 147, 99 S.Ct.

Re) RAPER Stara oles eee 25

Mussell v. Place, 94 U.S. 606, 24 L.Ed. 214 (1876) 24

Office of Disciplinary Counsel v. Herman, ——

Pa. ——, 426 A.2d 101 (1981) ........... i0

Pacific Telephone and Telegraph Co. v. P.U.C. of

as Be NOU, BRUTE > cicencocssccapinetencecedunatenes 22

Pittsburgh v. Allegheny Val. Bank, etc., 488 Pa.

544, 412 A.2d 1366 (1980) ......eeeceeeeees 15

Powell v. McCormick, 89 S.Ct. 1944, 395 U.S. 486

EUNIIIIET - <iocdicins dsb psantubacetindgueminetabgnsanpeiaaapeteasicens 19

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

Rite Aid Corp. v. Board of Pharmacy of State of

New Jersey, 3 Judge Court, 421 Fed. Supp.

Be. CTD sccibeoniscepyenpnieiinisieninbaatenteiniignion 21, 22

Rosco v. Pagano, N. J., 406 Fed. Supp. 1364 ........ 21

Rosenberg v. Rosenberg, Pa. Superior Ct.

G00 AD Oe (ISO cencccctinnsicm 8

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573,

es ORG CUBIS) siecacssserscscincrensicitinnteiin 24

Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625

EIIIIET * desiessissannignatinnicsieesonisceunbanamnstiebnaakamecenes 22

Taylor v. Louisiana, 419 U.S. 357 (1975) .......... 19

Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct.

AERTS ROS ARES GER 25, 26

U.S. v. Caceres, 440 U.S. 741, 99 S.Ct. 1465

(1979) . ..cccccccccccrrcccccscccsscecsrercoccccccvscscsccesesecoeeees 18, 19

U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260,

TA. SCE. BD CIDA) .cncrcrssccsiesicsisesecicssesonsdevecse 20

Vitek v. Jones, 100 S.Ct. 1254 (1980) ........ccceeeeeee 21

MISCELLANEOUS:

78 Columbia Law Review 610, 640-653 ............06 25, 26

79 Dickinson Law Review 549, 553° ......csscccsseseeee 25

ae ee TED Naiissites sedscosennncedocscscecededgctocoszotecotneve 7

RU MUON EIEN: sctccveisntbosedsccoddibsesdadudesecsevsesnoedsenconsqees 11

i IRIE) SINE” cLsnsiasiantubsobnaspoencojpisaeescocsseuvniapbebnoonpece 11

ETE GRD: cincsciarrecccsacsoossbccdqoetecceseccoaansnsonpevedeaceee 13

Bes ee COD CBD. ccceccsssdncoressonsesnubecosocccsqqcosscoreveecese 13

Fi OB TE) CBD. vciccscceccnscscnscceccscscecectacnsoicoveecesnnsese 13

ED CY: ciscsccededecccsssbesscoseccotecesecovegisnsicessose 13

RDB BOS LC) (3) ccvecrisersccrccsssescccccccccdscccccscsssecsceseee 13

BEDE; BOS CC) (4) sisccscccoseccascessccccscesceccccccenecccccssoecse 13

BEE TE. RAID ccc cecssdonvetececesedevcosocesoevepsoosscccocscosnee 17

DDE, FOB CC) scccerscccssiccessssecocccvcecosccevscccescogececoscccceee 17

Restatement of Judgments, T.D. Sec. 68(1) .......0+ 25

UNITED STATES CONSTITUTION:

First Ame@ndiinent ..ccieoiccveececccccccccccccccscccccncoccceasosenecee .

BPs ASOAAIIORE © ..ccvsveccsccccesesscescosecccepesoosececees 0 09 He Ae Me

Eighth Amendment ..........ssssssssesessesesenseeneenenenensens 2,3

Ninth Amendment ........cccccccssssssssssssssssssccccocccccsevsseess 2,3

Fourteenth Amendment ............:sssecsecssesreeerreeeees 1,2, 3; 17

RR ED 25), cicaicadbcscancossctconnersdebunsessousosecsceses 2,3

AD UTE” IED. ccchdtensogncvousenebdseucsoededovechdavbonsusesaseaes 2,3

RUDE IMT ETS, on. ssl ensnancendeccnsebsessveconscsonsetsovcossoss 2,3

AEB POSED) iecscccccessovncccosisovevcescyensevaseverscoccsee 1

DR TIRE CTSS hacidesccocdeocsoncsnscsescossccoseccecssevesocccceseces 2,3

QB U.S.C. 1343.(3) ..cccccccsscccrssscccccccsccceeeesscsccsceseceees 2,3

TE) DOD L occdciscnnsstoncborecccotacosesdtesorceseccccsoopeoeee a9

PR US. ZOO? cccrcccccsossccereccsvcecccerscessovescccccccccsseosoes 2,3

PR U.S.C. 2254 cccccrcccccccsssesscsscvccccscccsccccccsvsseccccssoees y ee |

A2 U.S.C. 1983 cccrcrccccrcccccsssccccsecceccccccccccccvsccscsossesees pa

42 US.C. 1985 ....ccccccccccccssssccesscccovessccceessssesossscocese 2,3

42 US.C. 1986 ......ccccccccoccscsroccssccccvcsscsccesssessesccooenss 2,3

Opinions Beiow and Jurisdiction

(D) OPINIONS BELOW:

The opinion (25a) of District Judge Maurice B.

Cohill, Jr. is unreported. The judgment order of the

Court of Appeals, which filed no opinion, is reported in

642 F.2d 440. (48a).

(E) THE GROUNDS FOR JURISDICTION ARE:

(i) The February 13, 1981 judgment order of the

Court of Appeals was entered on February 13, 1981.

(ii) Petitioner’s motion for F.R.A.P. 35 hearing en

banc and for F.R.A.P. 40 reargument was denied April 3,

1981. No extension to petition for certiorari was re-

quested or granted.

(iii) No cross-petition for certiorari has been filed.

(iv) Jurisdiction to review the judgment of the

United State Court of Appeals for the Third Circuit is

conferred by 28 U.S.C. 1254 (1).

Constitutional Provisions and Statutes Involved

(F) CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED:

Petitioner relied upon 42 U.S.C. 1983, 1985, 1986;

28 U.S.C. 1331, 1343 (3), 2254, 2201, 2202; 18 U.S.C.

241, 242, 371 and the First, Fifth, Eighth, Ninth and

Fourteenth Amendments to the constitution of the United

States.

Petitioner has reproduced the text of this material in

his appendix beginning at p. la.

Statement of the Case

(G) CONCISE STATEMENT OF THE CASE

CONTAINING THE FACTS MATERIAL TO THE

CONSIDERATION OF THE QUESTIONS PRE-

SENTED:

In the United States District Court for the Western

District of Pennsylvania, where petitioner filed his suit,

he relied upon the First, Fifth, Eighth, Ninth and Four-

teenth Amendments to the United States Constitution plus

42 U.S.C. 1983, 1985, 1986; 28 U.S.C. 1331, 1343(3),

2254, 2201-2202 and 18 U.S.C. 241, 242, 371 for juris-

diction.

Petitioner is a 1948 graduate of the Harvard Law

School. He was admitted to practice by the Supreme

Court of Pennsylvania on April 6, 1950.

His active, practice, which included many controver-

sial front-page cases resisting government, extended to

thirteen states and many Pennsylvania jurisdictions.

This petition is the final effort to resist an informal

reprimand which is the sole discipline he has ever re-

ceived.

The seed of petitioner’s discipline problems began

when he resisted a City of Pittsburgh business privilege

tax to which he objected because government-oriented

lawyers and their professional associates were treated dif-

ferently than non-government lawyers.

But the case did not really move forward until his

discipline proponents, against whose federal class action

fee he successfully objected, retained as their personal at-

torney the Chairman of the State Disciplinary Board.

Statement of the Case

Petitioner was charged with four disciplinary of-

fenses.

A. On October 20, 1973, Grace S. Harris, Esq.

(Harris) , a member of the City of Pittsburgh (the City)

tax collection team, which also included Eugene B. Strass-

burger, III Esq. (now a Court of Common Pleas of Alle-

heny County Judge), D. R. Pellegrini, Esq. (Pellegrini) ,

and Joseph L. Cosetti, Esq. (Cosetti) (then City Trea-

surer, but now a Western District Bankruptcy Judge),

complained to the Disciplinary Board Prosecutor that

Petitioner had filed a preliminary objection to a rule to

show cause, joined equity and trespass in the same sum-

mons in the tax case, threatened with undisclosed sanc-

tions a clerk who had entered against Petitioner at her

insistence a default judgment in direct violation of her

on record stipulation and being some how responsible for

the clerk’s failure to enter on the Prothonotary’s docket

the filing of a praecipe to present a warrant of attorney

which had admittedly been properly served.

Petitioner does not have space within the thirty-

page rule limit to detail the procedural history of these

cases except to state that ultimately Common Pleas Court

of Allegheny County, Civil Division, Chief John P. Flaher-

ty (now a Pennsylvania Supreme Court Justice) enjoined

City tax collection efforts represented by that litigation

and in favor of Petitioner on that issue.

B. Shirley Kronzek (Kronzek) discussed a City

related water problem with Harris who also sat on the

City Water Assessors’ Board.

Around that time, and on January 19, 1977, she

complained to the Disciplinary Prosecutor that Petitioner

Statement of the Case

refused to turn over to her checks in a total amount of

$750 because he had been given not sufficient fund

checks which she refused to pay on the same matter and

was asserting a Greek Catholic Union v. Russin, 1940,

340 Pa. 295, attorney’s lien.

Kronzek also filed a civil suit on the same problem.

At a September 25, 1978 trial, where Kronzek was repre-

sented by a lawyer of her choice, Judge N. P. Papadakos

(now Chief Judge of the Allegheny County Common Pleas

Court, Civil Division) ruled in favor of Petitioner and

against Kronzek.

C. When Harris and Cosetti attempted to remove

everything in Petitioner’s law office and record it for pub-

lic amusement by cooperating with television media peo-

ple then on the scene, Petitioner filed a claim that lease

provisions with his landlord created a sale-preventing lien.

Petitioner had been told by the solicitor for the Pro-

thonotary, who had issued this writ of execution, that

both he and the Sheriff’s solicitor had concluded the pro-

ceeding issued in the said default judgment was illegal

so that the sale was not to be held.

However, without prior notice, and while Petitioner

was engaged in trial, the sale was set and would have

left Petitioner with a bare-to-the-walls office if he had not

filed the claim.

Judge Flaherty finally enjoined this proceeding.

D. On January 31, 1978, the fourth charge was is-

sued in Pellegrini’s complaint that Petitioner should be

disciplined for protecting the files, records, books and

furnishings in his law office.

Statement of the Case

In sum, Petitioner was the prevailing party in the

actual court cases but the losing party in the collateral

discipline matter which involved the identical facts.

Petitioner requested over and over an opportunity

to challenge the method by which lawyers were chosen

to sit in judgment and, in particular, how his three-attor-

ney hearing committee was selected, plus what impact,

if any, resulted from Alexander Unkovic (Unkovic) be-

ing both Chairman of the Supreme Court Disciplinary

Board and the personal legal representative of the propo-

nents of discipline.

But there was no procedure to do it. Petitioner also

wanted to make inquiry about how secret pre-formal

charge action by two successive Pennsylvania Chief Jus-

tices, the then President of the State Bar Association and

Unkovic might have affected the intermediate and final

outcome of his case.

But there was no procedure to do it.

At his pre-trial conference, Petitioner discovered for

the first time, by examination of the administrative file,

that Harris had been corresponding with then Chief Jus-

tice B. R. Jones and later Chief Justice Michael J. Eagen,

who subsequently made the final decision in the state

system.

These chief judicial officers had been also corre-

sponding with the Discipline Prosecutors about why the

case was not going ahead.

Chief Justice Eagen’s letter of October 6, 1977 ad-

vised the Chief Prosecutor, whom he could remove at

will: ‘Mrs. Harris seems to have good reason to com-

plain.”

Statement of the Case

None of this material was sent to Petitioner as D.R.

7-110(B) (2) mandates (13a). When Petitioner asked

for copies, Chief Justice Jones, then retired, declined to

answer his letter and the Chief Justice Eagen ordered they

not be supplied.

With no procedure to overcome this Court con-

structed obstacle, Petitioner solved the problem by ser-

vice of a subpoena duces tecum upon Unkovic, who it

turned out, had much of it in his personal office files.

These files also disclosed that Harris, Carl E. Glock,

Esq., a senior member of the largest Pittsburgh firm and

the review officer on three of the charges, plus Unkovic

had cooperated to move the charges along.

1. Glock had served as review officer in three of the

four charges and recommended prosecution.

What he had said was discovered at the pre-trial

conference. Petitioner's conclusion from reading his re-

port is that if another member of the Bar was the target

that he would dismiss. But, for Petitioner, he recom-

mended the charges be filed.

However, he then withdrew from the third charge

because of an undisclosed conflict between his law firm

and Petitioner but left his papers in the file where they

were available to the new review attorney who recom-

mended prosecution without further comment.

2. But the charges did not move until Harris sent

an August 7, 1977 letter to Glock.

Glock then sent a letter to J. C. Ostrow, former Dis-

cipline Board Chief, who sent it on to Unkovic, who had

Statement of the Case

been hired as Strassburger’s personal attorney on July

15, 1977 and was now Chief of the Pennsylvania Supreme

Court Disciplinary Board.

3. Unkovic, on August 15, 1977, sent the material

on to the Chief Prosecutor, who he could remove at will,

with the under the circumstances surprising comment,

“I have no idea what her complaint is, but assume you

would wish to follow this through.”

He also advised she was active in the Bar Association

and had been a judicial candidate.

The Chief Prosecutor got the message and filed for-

mal charges October 17, 1977 on these complaints going

back to October 20, 1973.

At the evidentiary hearing, Strassburger told the hear-

ing committee about the horrors which follow joining

equity with trespass in one summons.’

Cosetti, at Petitioner’s trial, admitted he had placed

undisclosed pressure on the Prosecutor, the Supreme Court

Administrator, plus Glock and complained, without suc-

cess, to the entire assembled Allegheny County Bar As-

sociation Ethics Committee.

When Unkovic responded to Petitioner’s subpoena,

he refused to answer if he had discussed Petitioner’s dis-

cipline problem with Strassburger even though specifically

ordered to speak to the subject by the hearing committee.

It should be remembered that Strassburger was a dis-

cipline proponent, a hearing witness, and also had re-

1 When he sat as a Judge, his similar ruling in an actual case

was reversed. See Rosenberg v, Rosenberg, 1980, —— Pa. Su-

perior Ct, ——, 419 A.2d 167.

Statement of the Case

tained Unkovic as his private counsel on July 15, 1977 to

represent him in a class action fee request to which Peti-

tioner, a class member, had objected.*

Petitioner’s attempts to heve an evidentiary hearing

about how the above might have affected the outcome of

his case were blocked by a stone wall.

Petitioner also objected to and attempted over and

over to have an evidentiary hearing so he could challenge

the Bar Association orientation of the hearing committeé

members and review officers.

But there was no vehicle available.

He also complained that the three out of Allegheny

County hearing committee members, of whom he had

never heard before, convicted him of unmade charges un-

supported by record evidence, all in violation of In re

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

He asked for an evidentiary hearing to ask them how

they found out about dehors record alleged misconduct.

This request, made at each available state, was sim-

ilarly rejected.

In sum, at least in this case, there is no Pennsylvania

procedure to test judicial bias or factors that may con-

tribute to an unfair hearing.

The hearing committee recommended public censure

by the Supreme Court plus supervision and probation for

an unlimited period.

® The objections resulted in a settlement in which Strassburger

took a very substantial reduction and caused a new District Court

policy of appointing a trustee ad litem to protect the class from

the fee seeking class lawyer.

Statement of the Case

But the Disciplinary Board rejected this punishment

and substituted an informal reprimand instead.

Although the Supreme Court (Office of Disciplinary

Counsel v. Herman, March 9, 1981, Pa. , 426 A.

2d 101, 102, f.n. 3) has said, without exception, that

“the scope of this Court’s review is de novo as to both the

findings and the recommendations of the Disciplinary

Board, Pa. R.D.E. 208 (e) ; Matter of Green, 470 Pa. 164,

368 A.2d 245 (1977)” Petitioner’s request for appeal,

briefing and oral argument was refused by Chief Justice

Eagen on April 26, 1979 and May 10, 1979 and Peti-

tioner ordered to appear for his Board private reprimand.

After the United States Supreme Court refused

certiorari (100 S.Ct. 147), Petitioner filed his complaint

in the United States District Court for the Western Dis-

trict of Pennsylvania, where it was dismissed for lack of

jurisdiction and collateral estoppel by District Judge

Maurice B. Cohill, Jr., whose opinion and past opinion

orders have been attached as an appendix to this petition

(25a).

Neither Judge Cohill nor the affirming without opin-

ion Court of Appeals for the Third Circuit have discussed

the issue of lack of state procedure to test bias and an

unfair hearing in the state system.

Petitioner’s lack of a state remedy has thus been over-

looked or sub silento approved by all courts to whom it

has been presented.

Reasons for Allowance of Writ

(H) ARGUMENT AMPLIFYING THE REASONS RE-

LIED ON FOR THE ALLOWANCE OF THE WRIT

I. Petitioner’s attempt to explore the bias which

might infect his right to a fair and impartial trial began

with the Disciplinary Prosecutor who decided whether

to process the various charges and ended with the two

Chief Justices who were empowered to make the ultimate

decision whether or not to allow full Pennsylvania Su-

preme Court review which would include briefing and

oral argument.

A. D.R. 8-102(B) directs: “A lawyer shall not

knowingly make false accusations against a Judge or other

adjudicatory officer.”

1. Pennsylvania Rule of Disciplinary Enforcement

(R.D.E.) 203(c) advises “The Board, its hearing com-

mittees, and (when administering informal admonitions)

Disciplinary Counsel are ‘tribunals’ within the meaning

of the Disciplinary Rules.”

2. Due process impartiality covers both the “tri-

bunal” and, to a somewhat lesser degree, the Prosecutor

as well. Marshall v. Jerrico Inc., 1980, 100 S.Ct. 1610,

US.

3. Petitioner is well aware of the professional and

other dangers when a lawyer talks about “tribunals”.

Garrison v. Louisiana, 1964, 85 S.Ct. 209, 379 U.S. 64

(criminal libel conviction, after district attorney talks

about judges, reversed) ; Gately v. Sutton, 1962, C.A. 10,

Reasons for Allowance of Writ

310 F.2d 107 (lawyer who says Chief Justice was bribed

disbarred without opportunity to prove it); Goodwin

Motor Corp. v. Mercedes Benz, 1980, 172 N.J. 263, 411

A.2d 1144 (lawyer has duty not to risk violation of disci-

plinary rules) .

B. Without Pittsburgh, Pennsylvania orientation,

the Supreme Court might not be able to evaluate the per-

sons who participated in this disciplinary case. So, Peti-

tioner will describe some of them briefly here.

1. B.R. Jones was a Chief Justice of Pennsylvania

during part of the period Petitioner was under investiga-

tion. He retired shortly before his 21 year term of of-

fice ended, so he could join a prestigious Philadelphia

law firm. But, he is now deceased.

2. Michael J. Eagen was a Justice of the Supreme

Court who succeeded to Chief Justice when Chief Justice

Jones retired. He has recently resigned shortly before

the end of his term of office.

He made the final decisions not to allow Pennsyl-

vania Supreme Court de novo review of this case when

he directed on April 26, 1979, at No. 224 Disciplinary

Docket No. 1, that “it is hereby ordered that Allen N.

Brunwasser, Esquire, be privately reprimanded by the

Disciplinary Board of the Supreme Court of Pennsylvania

pursuant to Rule 204 of the Pennsylvania Rules of Disci-

plinary Enforcement” and denied oral argument on May

10, 1979.

3. Alexander Unkovic, Esq., was appointed Chair-

man of the Disciplinary Board by the Chief Justice of

Pennsylvania in 1977 and served until April 1, 1979.

Reasons for Allowance of Writ

This covered the period when the Pennsylvania Bar

Association entered the picture and the day the Disci-

plinary Board advised Chief Justice Eagen that Petitioner

would not voluntarily submit to an informal reprimand

(March 14, 1979).

(a) The Pennsylvania Supreme Court appoints the

Board and its Chairman (R.D.E. 205(a)) who manage

the entire system including selection and discharge of the

Prosecutor and his staff (R.D.E. 205(c) (2)), hearing

committees (R.D.E. 205(c) (3)) and lawyers who review

in the first instance the Prosecutor’s decision to prosecute

(R.D.E. 205 (c) (5)) (14a-15a).

“The Board shall, to the extent it deems feasible

consult with officers of local Bar Associations in the

counties affected concerning any appointment which

it is authorized to make under these rules”

(R.D.E. 205 (c) (1)), and assigns the review member plus

the hearing committee “through its secretary” to each case

(R.D.E. 205 (c) (4)). Board Rules 93.23(b) and 93.23

(a) (4) say the same thing (18a).

But, as a practical matter, administration is relegated

to the Chairman.

4. At the time of these discipline events, Eugene B.

Strassburger, III was a discipline proponent and a hearing

witness against Petitioner.

He also served as Deputy City Solic..or but is now a

Judge.

When Petitioner, a class member, objected to his

requested fee in a class action in the United States Dis-

trict Court for the Western District of Pennsylvania C.A.

Reasons for Allowance of Writ

72-968, he hired Unkovic on July 15, 1977 as his per-

sonal attorney and later paid him $6,000 out of class

funds,

Shortly after retention, Unkovic filed two formal

pleadings attacking Petitioner’s ethics.

Petitioner’s District Court formal objection to Un-

kovic serving both as Strassburger’s counsel and State

Disciplinary Board Chairman resulted in his voluntary

withdrawal as federal court case counsel on October 11,

1977.

The Court is asked to recall that Petitioner’s sub-

poena duces tecum disclosed that Unkovic’s files con-

tained not only previously unknown to Petitioner com-

munications from Harris and two Chief Justices inter se

and to various Board officials, but also written evidence

of his participation with Bar Association President Glock

and Harris (August 3, 1977 to August 15, 1977) and his

direction to Chief Prosecutor Zerfoss to “follow this

through”.

Although directed by the hearing committee to re-

spond to Petitioner’s questions about whether he had dis-

cussed Petitioner’s discipline problems with Strassburger,

Unkovic refused and the committee decided not to do any-

thing about it.

Unkovic had also been a Pennsylvania Bar Associa-

tion President.

5. Carl E. Glock, a senior member of Allegheny

County’s largest law firm, served as review officer on

three of the four charges.

Reasons for Allowance of Writ

He recommended prosecution on all but withdrew

on the Kronzek matter without removing his evaluation

from the file where his replacement could read it.

These documents are usually secret and Petitioner

was indeed lucky to get to read them. Mr. Glock said,

inter alia, on July 7, 1976 that “the entire matter began

in March, 1971, when the City of Pittsburgh, through its

counsel, the complainant, initiated suit to collect delin-

quent business privilege taxes. . .”

Petitioner has never to this day met Mr. Glock or

had a case with him. However, this lawyer said that

evidence insufficient against others was sufficient against

him. He explained;

“In my opinion, as discussed more fully below,

respondent’s well documented conduct in the Pitts-

burgh business privilege tax litigation, standing alone,

barely supports the filing of formal charges. How-

ever, respondent’s general reputation for harassing

tactics, which is confirmed by examples appearing in

the file, suggests that a stronger case based on addi-

tional similar conduct exists.”

But, this “additional similar conduct” was neither

identified nor disclosed.

Mr. Glock participated as counsel for Mellon Bank,

N.A. in its resistance to the same City business privilege

tax. The case is reported at 488 Pa. 544, 412 A.2d 1366

(1980).

Mrs. Harris also protested Mr. Glock’s unethical

conduct in that case. But, he never had to face profes-

sional charges.

Reasons for Allowance of Writ

Petitioner’s attempt to show the hearing committee

that Glock, Unkovic, Strassburger, Harris and Pellegrini

had engaged in conduct no better than his was rejected

even though the actual case files were present at the hear-

ing and could be easily examined.

C. Petitioner asked for an evidentiary hearing about

how the hearing committee was selected, what part the

Chief Justices and Unkovic played in the case and how the

hearing committee found him guilty of charges unmade

and unproven at any time.

This effort, made at every available stage, was on

each occasion rejected with a denial but no hearing.

Petitioner’s December 12, 1977 request, when the

hearing committee was appointed was rejected on January

6, 1978.

His February 13, 1978 renewal, when the fourth

charge was filed, was again denied.

His September 29, 1978 request to the Disciplinary

Board was rejected again, as was the request made to them

in his October 27, 1978 brief on exceptions.

The Pennsylvania Supreme Court denied de novo re-

view as did the United States Supreme Court on October

1, 1979 at No. 79-254 where Petitioner raised the issue in

Question No. 4.

Petitioner has also been unsuccessful in this specific

area both in the District Court and the Court of Appeals.

D. What harm could follow permitting Petitioner

to ask Mr. Unkovic if the case was fixed or improperly

influenced? All he would have to do is deny it.

Reasons for Allowance of Writ

However, Pennsylvania not only has no vehicle to

explore Fifth and Fourteenth Amendment bias, but the

controlling Supreme Court and Board Rules will not allow

it.

1. After Board Secretary, Nan M,. Cohen, received

Petitioner’s first bias exploration request, she told the

hearing committee in a December 20, 1977 letter:

“The Pennsylvania Rules of Disciplinary En-

forcement do not provide for pleadings other than

a petition for discipline and an answer. thereto.”

2. Disciplinary Rule 208(b) and (c) not only make

no provision for what Petitioner had requested, but pre-

vent it by directing ‘(c) (1) proceedings before the hear-

ing committees shall be governed by the Board Rules. . .”

Board Rule 89.1(a) rejects procedural attacks and

conclusively presumes everything done under Chapter 87

preformal complaint procedure, including protections

against a lawyer being overreached, is all right.

Petitioner will attempt to have the Disciplinary Board

send the Court sufficient copies of this material so all of

it will be available for close examination.

II. Petitioner, a lawyer who has succeeeded with-

out political, family or Bar Association influence, has been

disciplined for charges that constitutes, at most, procedural

misjudgments for which he relied on reported case author-

ity.

Harris, plus Strassburger and Cosetti, now respec-

tively state and federal judicial officers, have been, and

Reasons for Allowance of Writ

still are, being represented, with specific approval of the

Mayor, by the tax-supported City Law Department.

Cosetti’s Bankruptcy Judge appointment was strongly

and enthusiastically recommended both to the Pennsyl-

vania Western District federal Judges and the media by

the same Judge Cohill, who dismissed Petitioner’s case

as frivolous and an abuse of process, after he had been

asked to recuse,

A. Petitioner had both case law plus conduct of his

opponents to support what he did in his own defense.

He really believed, and nothing of record showed

he did not, what was said in Maness v. Meyers, 1975, 95

S.Ct. 584, 595, f.n. 7 and 16, 419 U.S. 449, 459, 467,

f.n. 7 and 16 (A.B.A. Courage and zeal mandates will

protect even lawyer’s farfetched and untenable ideas if

presented in good faith’.)

No one has yet specifically told him he owes himself

less than he must give to his clients. Jn the Matter of

Little, 1972, 92 S.Ct. 659, 404 U.S, 553, or that his quasi-

criminal disciplinary proceeding, In re Ruffalo, 1968, 88

S.Ct. 1222, 1226, 390 U.S. 544, 551, will be processed

or decided on different standards. Raley v. Ohio, 360

U.S. 423, 437-438, 79 S.Ct. 1257, 1265-1266 (commis-

sion which advises witness he has previlege not to answer

can’t convict him for taking the advice) ; Cox v. Louisiana,

379 U.S. 559, 85 S.Ct. 476 (person told by police that

he can demonstrate “near” Court House can’t be punished

for believing him); U. S. v. Caceres, 1979, 440 U.S. 741,

* Petitioner's conduct was not, in his opinion, unusual so that

he did not need the full protection of these cases.

Reasons for Allowance of Writ

753, fn. 15, 99 S.Ct. 1465, 1472, f.n. 15, and cases col-

lected.

Petitioner respectfully suggests this new idea of dis-

ciplinary retrial of a court victorious but politically dis-

advantaged opponen: has set a dangerous precedent which

should be overruled here. Powell v. McCormick, 1969,

89 S.Ct. 1944, 1969, f.n. 60, 395 U.S. 486, 531, f.n. 60.

B. The charges which began with the Harris Oc-

tober 20, 1973 complaints against her tax case opponent,

did not move until two successive Pennsylvania Chief

Justices, two state Bar Association Presidents, and a law-

yer who served at the same time as state Disciplinary

Chief and counsel for a disciplinary proponent put on

the heat.

1. If this were a case about the most atrocious

and unjustified homicide, regular constitutional protections

against unfair bias would both apply and afford the evi-

dentiary hearing which has been denied here.

If discipline machinery has been unconstitutionally

saturated with non-representative, non-legal community

bar association chiefs against Petitioner, who does not be-

long to any bar association, what valid objection could be

raised to his request that the problem be examined just

like any other similar male-female, Black-White, or rich-

poor challenge? Duren v. Missouri, 1979, 439 US.

357, 363, 99 S.Ct. 664, 668; Taylor v. Louisiana, 1975

419 US. 357, 363.

What reason is there for not giving to a lawyer, who

is part of the justice system, the same protective proce-

dures as those who are also processed by it?

Reasons for Allowance of Writ

If Petitioner can’t prove his case, that is the end of

it and his objections will be laid to rest.

If he can’t show his informal reprimand was infected

by unconstitutional overreaching, not only he, but the pub-

lic and the Court can rest undisturbed.

Sometimes, even a casual request or inquiry can have

grave impact when made by a powerful superior to his

removable-at-will subordinate. U.S. ex rel. Accardi v.

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

If fair-on-the-surface state Chief Justices are secretly

serving as secret prosecutors, what could possibly be

wrong with exposing and ending the practice?

In sum and in light of all the judicial and lawyer

time that has been expended in this case, would not a

more efficient procedure have been the granting of the

evidentiary hearing where Petitioner could ask Unkovic

if he, or anyone to his knowledge, did anything behind

the scenes to influence the unique result in this case?

Would it be improper to ask a Chief Justice why

he interfered here but not in other cases or to inquire of

the Prosecutor whether any outside pressure influenced

his decision to revive a dead case?

What would be wrong in asking the hearing com-

mittee who told them about the uncharged and unproven

libels they talked about in their opinion?

2. When a state provides no vehicle to test jury

prejudice, its criminal conviction will be vacated on direct

appeal. Groppi v. Wisconsin, 1970, 400 U.S. 505, 511,

91 S.Ct. 490, 494; Ham v. South Carolina, 1973, 409

Reasons for Allowance of Writ

U.S. 524, 527, 93 S.Ct. 848, 850 (civil rights activist

who says police are framing him denied existing voir dire

remedy) .

3. Federal Courts have mandated a 28 U.S.C, 22-

54(e) evidentiary hearing if “for any reason it appears

that the state trier of fact did not afford the habeas corpus

applicant a full and fair fact hearing.”

4. The right to an impartial tribunal is so firmly

engrained in American Jurisprudence that Appellant

respectfully suggests even a lawyer charged with poor

ethics should at least have this protection. Marshall v.

Jerrico, Inc., April 28, 1980, 100 S.Ct. 1610, 1613

(allowed discovery does not produce sufficient facts to

apply impartial civil and criminal and “appearance of

justice’ rule to employment standards administrator) ;

Gibson v. Berryhill, 1973, 93 S.Ct. 1689, 1696-7, 411

U.S. 564, 575-78 and f.n. 14 (bias and no state remedy

are exceptions to Younger abstention); Vitek v. Jones,

March 25, 1980, 100 S.Ct. 1254, 1264 (state transfer of

convict to mental hospital requires ‘‘an independent de-

cision maker’’); Meyers v. Alldridge, 1974, C.A. 3, 492

F.2d 305 (prisoner discipline requires fair hearing of-

ficer) ; Goldberg v. Kelly, 1970, 397 U.S. 254, 271, 90

S.Ct. 1011, 1022 (welfare termination hearing requires

“impartial decision maker’’); and In re Schlesinger, 404

Pa. 584, , 172 A.2d 835, 840 (attorney discipline

due process requires “full, fair and impartial hearing.”) ;

Rosco v. Pagano, N.J., 406 Fed. Supp. 1364, 1369

(Younger doctrine not applied to state police discipline

when right to fair hearing involved; hearing officer re-

moved and state case stayed pending replacement); Rite

Aid Corp. v. Board of Pharmacy of State of New Jersey,

Reasons for Allowance of Writ

1976, 3 Judge Court, 421 Fed. Supp. 1161, 1169 (court

orders depositions and uses them in determination of no

bias); Friedman v. Rodgers, 1979, 99 S.Ct. 887, 898;

Pacific Telephone and Telegraph Co. v. P.U.C. of Cal.,

August 13, 1979, 100 S.Ct. 1, 3 (Mr. Justice Rehnquist

denies stay when no Gibson v. Berryhill type of bias is

alleged) .

5. Although assured of his first class citizen status

in other areas, Spevack v. Klein, 1967, 385 U.S. 511,

516, 87 S.Ct. 625, 629, a lawyer in the disciplinary ma-

chinery soon discovers that constitutional defenses and

procedures he could routinely raise with success for a

client are not available to him.

This is because of ‘sound policy reasons tied to the

unique and peculiarly state oriented function attorney dis-

ciplinary proceedings serve.” Mildner v. Gulotta, 1975,

405 Fed. Supp. 182, 198, aff’d per curiam, 1976, 96 S.

Ct. 1489, 425 U.S. 901, and “... the special relationship

between state Courts and members of their bars’, Gibson

v. Supreme Court of New Jersey, 1977, C.A. 3, 558 F.2d

701, 704.

In fact, the Commonwealth Court of Pennsylvania

has recently observed that “voir dire is not available to

test members of administrative bodies engaged in ad-

judicating issues committed to their decision.” Graham

v. Mars Area School District, 52 Pa. Commonwealth Ct.

116, 118, 415 A.2d 924, 926, even though it is vital to

due process.

6. Petitioner respectfully suggests there is a serious

constitutional tension between a lawyer’s obligations as

expressed in Maness, supra, plus Anders v. California,

Reasons for Allowance of Writ

1967, 386 U.S. 738, 87 S.Ct. 1396, and the actual and

real policy to uphold court authority, at any cost, when

the lawyer is on the other side.

7. Petitioner does not challenge the power of the

elected court to control his conduct as its officer and

functionary.

He appreciates his privilege of holding public office

without having to run for election as the judges do.

He accedes to doing what he is told and paying the

price if he doesn’t.

But he respectfully objects to being told retroactively

and by a procedure where the result might have been

determined before it began.

Petitioner has been restrained in what he would like

to say. He respectfully suggests he has established at

least a sufficient prima facie basis for the bias testing evi-

dentiary hearing he has not been able to enjoy.

III. There is no collateral estoppel against federal

relief because the bias issue has not been decided after

a “full and fair hearing” anywhere in the state system.

A. Petitioner respectfully suggests that Judge Cohill

should not have decided this case after he was asked to

recuse and on the limited state record represented by the

complaint and respondent’s motions to dismiss.

1. Cosetti obtained his law degree and was admit-

ted to the Bar while still City Treasurer.

He had little legal experience generally and ab-

solutely none in bankruptcy.

Reasons for Allowance of Writ

He had recently run as a sacrifice Republican candi-

date for City Mayor against then popular Pete Flaherty,

who was reelected in a landslide.

When Petitioner read that he was the recommended

appointee by a three judge committee chaired by Judge

Cohill, who had also been a Republican and actually gave

a media release about how fortunate the public was to

have Cosetti available, he objected to the appointment and

asked Judge Cohill to recuse in this case.

2. But, the Judge declined and then went on to

observe that Petitioner’s case, which he was at the same

time dismissing, was “the kind of repetitious, vexatious,

and wasteful litigation feared by both the Supreme Court

and the Third Circuit.”

But, Judge Cohill makes no comment upon the nu-

merous spurious discipline cases started by the Discipline

Prosecutor and eventually dismissed, including one brought

by an Unkovic client and one actually solicited by the

Prosecutor himself.

3. Judge Cohill did not have the state record or the

testimony so Petitioner respectfully suggests he should not

and could not have made that observation. Batista v.

Weir, 1965, C.A. 3, 340 F.2d 74, 81; Kauffman v. Moss,

1970, C.A. 3, 420 F.2d 1270, 1274 and f.n. 6 and 9;

Mussell v. Place, 1876, 94 U.S. 606, 24 L.Ed. 214, 216,

approved, Sea-Land Services, Inc. v. Gaudet, 1973, 414

U.S. 573, 593, 94 S.Ct. 806, 819; Lawler v. Nat. Screen

Service, 1954, 349 U.S. 322, 330, f.n. 20.

B. When the state system foreclosed Petitioner’s

fair trial and bias issue from proper adjudication, it ex-

Reasons for Allowance of Writ

cluded application of the judge-made rule of collateral

estoppel.

1. The impact of lack of state bias remedy as a

limiting factor in the application of collateral estoppel

is nowhere discussed in this case.

2. Petitioner understands the diplomacy factors that

would cause the Pennsylvania Supreme Court to back up

its own disciplinary people. Then Chairman Gilbert Nu-

rick said in 1975 at 79 Dickinson Law Review, 549, 553:

“Our Supreme Court acts expeditiously on such

recommendations and, almost without exception, has

approved the recommendations of the Board.” (Em-

phasis supplied.)

3. Montana v. United States, 1979, 440 U.S. 147,

164, f.n. 11, 99 S.Ct. 970, 979, f.n. 11, observed, in ap-

plying the doctrine of collateral estoppel to a state tax

judgment:

“Redetermination of issues is warranted if there

is reason to doubt the quality, extensiveness, or fair-

ness of procedures followed in prior litigation.”

and cited Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct.

1629; Trainor v. Hernandez, 431 U.S. 434, 469, 97 S.Ct.

1911, 1931 (Justice Stevens dissenting); Restatement of

Judgments, T.D. Sec. 68(1) and 78 Columbia Law Re-

view, 610, 640-653.

That learned survey of then available authority ex-

cludes a lawyer defendant in a state disciplinary case from

the doctrine (78 Columbia L.R. at 648) and says:

“Where, however, the party is an involuntary

litigant in civil proceedings, he does not waive any

Reasons for Allowance of Writ

objections to the state’s rules of procedure. Thus,

if the party were an attorney in a judicial disciplinary

proceeding defending with the claim that his conduct

was constitutionally protected, a federal court may

well conclude that a judicial hearing which permitted

the court to reject findings of fact made by a referee,

without hearing the parties, witnesses, or oral argu-

ment, although in conformity with a state statute,

failed to provide fair process.”

(3) Both the majority and the dissent in Trainor,

supra, were concerned with adequate state procedural

remedies to protect an alleged cheating welfare recipient

against summary attachment procedures insofar as absten-

tion was concerned. The majority remanded to insure

it existed (431 U.S. at 447 and f.n. 10, 97 S.Ct. at 1920

and f.n. 10). The dissent said abstention was improper

“unless the state procedure affords a plain, speedy and

efficient remedy for the federal wrong.” citing Gibson v.

Berryhill, and concluded (431 U.S. at 1931, 97 S.Ct. at

469):

“In my judgment, when a state procedure is

challenged, an adequate forum must be one that is

sufficiently independent of the alleged unconstitu-

tional procedure to judge it impartially and to pro-

vide prompt relief if the procedure has been pointed

to as providing such and where the remedy is ‘un-

certain’, federal jurisdiction exists.” (All brief em-

phasis is author’s.)

The recent case of Allen v. McCurry, Dec. 9, 1980,

101 S.Ct. 411, US. , discusses the doctrine but

in a non-attorney discipline area.

Reasons for Allowance of Writ

4. Every case cited by the District Court in the

federal hands-off state attorney discipline policy area ex-

cludes lack of fair hearing due process.

Conclusion and Request for Relief

(I) CONCLUSION AND REQUEST FOR RELIEF

' The best argument Petitioner can make for his good

ethics is that these charges are the best that could be

brought against him after 32 years of active practice in

which he participated in controversial cases against gov-

ernment at all levels and usually with unexpected by his

opponents success. Petitioner is not unaware that the

Pennsylvania Supreme Court and the Disciplinary Board

could just as easily have approved the supervision and

probation which the hearing committee recommended.

Petitioner was not tried for the usual transgression—

of stealing clients’ money, paying or taking a bribe, am-

bulance chasing at the hospital or undertakers or selling

babies to adopting parents or activity that lends itself to

supervision.

What kind of professional life would exist for a

lawyer whose every act would be subjected to someone

else’s approval? Who would want him to represent them?

How could Petitioner present a client’s case if he

risked his own professional existence by mere filing of

pleadings? Holt v. Virginia, 1965, 381 U.S. 131, 136,

85 S.Ct. 1375, 1378.

Therein lies the danger of what has happened here

and Petitioner respectfully suggests this danger requires an

exception to the “sound policy” which is only another

way of saying that the state Judges know their lawyers

and we are not going to second guess them.

Conclusion and Request for Relief

In effect, an unconstitutional conclusive presump-

tion barred by Carrington v. Rash, 1965, 85 U.S. 775,

730, 380 U.S. 89, 96, its predecessors and progeny.

If the Court really means to define his duty accord-

ing to the A.B.A. standards and the cases which discuss

them, Petitioner respectfully suggests this case presents

the type of problem which this Court should take under

its Rule 17 and decide.

Respectfully submitted,

ALLEN N. BRUNWASSER,

Petitioner

Amendments to Constitution

APPENDIX

TEXT OF AMENDMENTS TO THE CONSTITUTION

Amendment [1]

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

** *

Amendment [V]

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

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual ser-

vice in time of War or public danger; nor shall any per-

son be subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

* * *

Amendment [ VIII]

Excessive bail shall not be required, nor excessive

fines imposed nor cruel and unusual punishments in-

flicted.

Amendments to Constitution

Amendment [IX]

The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others re-

tained by the people.

*_* *

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; or shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

*_* *

Section 5. The Congress shall have power to enforce,

by appropriate legislation the provisions of this article.

* * *

Excerpts U. S. Code

UNITED STATES CODE

** *

18 §241 CRIMES Part 1

CHAPTER 13—CIVIL RIGHTS

*_* *

§241. Conspiracy against rights of citizens

If two or more persons conspire to injure, oppress,

threaten, or intimidate any citizen in the free exercise or

enjoyment of any right or privilege secured to him by the

Constitution or laws of the United States, or because of

his having so exercised the same; or

If two or more persons go in disguise on the high-

way, or on the premises of another, with intent to prevent

or hinder his free exercise or enjoyment of any right or

privilege so secured—

They shall be fined not more than $10,000 or im-

prisoned not more than ten years, or both; and if death

results, they shall be subject to imprisonment for any term

of years or for life.

June 25, 1948, c. 645, 62 Stat. 696; Apr. 11, 1968, Pub.

L. 90-284, Title I, §103 (a) , 82 Stat. 75.

* * *

§242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any inhabitant of

any State, Territory, or District to the deprivation of any

rights, privileges, or immunities secured or protected by

the Constitution or laws of the United States, or to dif-

ferent punishments, pains, or penalties, on account of such

Excerpts U.S. Code

inhabitant being an alien, or by reason of his color, or

race, than are prescribed for the punishment of citizens,

shall be fined not more than $1,000 or imprisoned not

more than one year, or both; and if death results shall be

subject to imprisonment for any term of years or for life.

June 25, 1948, c. 645, 62 Stat. 696; Apr. 11, 1968, Pub.

L. 90-284, Title I, $103 (b) , 82 Stat. 75.

CHAPTER 19—CONSPIRACY

*_* *

§371. Conspiracy to commit offense or to defraud United

States

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five

years, or both.

If, however, the offense, the commission of which is

the object of the conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not exceed the maxi-

mum punishment provided for such misdemeanor. June

25, 1948, c. 645, 62 Stat. 701.

Title 28 DISTRICT COURTS, JURISDICTION Ch. 85

** *

§1331. Federal question; amount in controversy; costs

(a) The district courts shall have original jurisdic-

tion of all civil actions wherein the matter in controversy

exceeds the sum or value of $10,000, exclusive of interest

Excerpts U.S. Code

and costs, and arises under the Constitution, laws, or

treaties of the United States.

(b) Except when express provision therefor is

otherwise made in a statute of the United States, where

the plaintiff is finally adjudged to be entitled to recover

less than the sum or value of $10,000, computed without

regard to any setoff or counterclaim to which the defend-

ant may be adjudged to be entitled, and exclusive of in-

terests and costs, the district court may deny costs to the

plaintiff and, in addition, may impose costs on the plain-

tiff. June 25, 1948, c. 646, 62 Stat. 930; July 25, 1958,

Pub.L. 85-554, §1, 72 Stat. 415.

§1343. Civil rights and elective franchise

The district courts shall have original jurisdiction of

any civil action authorized by law to be commenced by

any person:

** *

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Con-

stitution of the United States or by any Act of Congress

providing for equal rights of citizens or of all persons

within the jurisdiction of the United States;

** *

28 §2201 DECLARATORY JUDGMENTS Ch. 151

** *

§2201. Creation of remedy

In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes, any court of the

United States, upon the filing of an appropriate pleading,

Excerpts U.S. Code

may declare the rights and other legal relations of any

interested party seeking such declaration, whether or not

further relief is or could be sought. Any such declaration

shall have the force and effect of a final judgment or de-

cree and shall be reviewable as such. June 25, 1948, c.

646, 62 Stat. 964; May 24, 1949, c. 139, §111, 63 Stat.

105; Aug. 28, 1954, c. 1033, 68 Stat. 890; July 7, 1958,

Pub.L. 85-508, §12(p) , 72 Stat. 349.

* * *

§2202. Further relief

Further necessary or proper relief based on a declara-

tory judgment or decree may be granted, after reasonable

notice and hearing, against any adverse party whose rights

have been determined by such judgment. June 25, 1948,

c. 646, 62 Stat. 964.

* *

§2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for

a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the

ground that he is in custody in violation of the Constitu-

tion or laws or treaties of the United States.

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted unless it appears that

the applicant has exhausted the remedies available in the

courts of the State, or that there is either an absence of

available State corrective process or the existence of cir-

cumstances rendering such process ineffective to protect

the rights of the prisoner.

Excerpts U. S. Code

hausted the remedies available in the courts of the State,

within the meaning of this section, if he has the right un-

der the law of the State to raise, by any available proce-

dure, the question presented.

(d) In any proceeding instituted in a Federal court

by an application for a writ of habeas corpus by a per-

son in custody pursuant to the judgment of a State court,

a determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in

a proceeding to which the applicant for the writ and the

State or an officer or agent thereof were parties, evidenced

by a written finding, written opinion, or other reliable

and adequate written indicia, shall be presumed to be

correct, unless the applicant shall establish or it shall

otherwise appear, or the respondent shall admit—

* * *

(2) that the factfinding procedure employed

by the State court was not adequate to afford a full

and fair hearing;

(3) that the material facts were not adequately

developed at the State court hearing;

(4) that the State court lacked jurisdiction of

the subject matter or over the person of the applicant

in the State court proceeding;

(5) that the applicant was an indigent and the

State court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the State

court proceeding;

(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court proceed-

ing; or

Excerpts U.S. Code

(7) that the applicant was otherwise denied

due process of law in the State court proceeding;

(8) or unless that part of the record of the

State court proceeding in which the determination

of such factual issue was made, pertinent to a deter-

mination of the sufficiency of the evidence to sup-

port such factual determination, is produced as pro-

vided for hereinafter, and the Federal court on a con-

sideration of such part of the record as a whole con-

cludes that such factual determination is not fairly

supported by the record:

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual determina-

tion has been made, unless the existence of one or more of

the circumstances respectively set forth in paragraphs

numbered (1) to (7), inclusive, is shown by the applicant,

otherwise appears, or is admitted by the respondent, or

unless the court concludes pursuant to the provisions of

paragraph number (8) that the record in the State court

proceeding, considered as a whole, does not fairly sup-

port such factual determination, the burden shall rest upon

the applicant to establish by convincing evidence that the

factual determination by the State court was erroneous.

(e) If the applicant challenges the sufficiency of

the evidence adduced in such State court proceeding to

support the State court’s determination of a factual issue

made therein, the applicant, if able, shall produce that

part of the record pertinent to a determination of the

sufficiency of the evidence to support such determination.

If the applicant, because of indigency or other reason is

unable to produce such part of the record, then the State

shall produce such part of the record and the Federal court

shall direct the State to do so by order directed to an ap-

Excerpts U. S. Code

propriate State official. If the State cannot provide such

pertinent part of the record, then the court shall determine

under the existing facts and circumstances what weight

shall be given to the State court’s factual determination.

(f) A-copy of the official records of the State court,

duly certified by the clerk of such court to be a true and

correct copy of a finding, judicial opinion, or other reliable

written indicia showing such a factual determination by

the State court shall be admissible in the Federal court

proceeding.

June 25, 1948, c. 646, 62 Stat. 967; Nov. 2, 1966, Pub.

L. 89-711, §2, 80 Stat. 1105.

42 §1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory, subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

R.S. §1979.

**_* *

42 §1985 PUBLIC HEALTH & WELFARE Crh. 21

Subchapter 1.—Generally—Continued

§1985. Conspiracy to interfere with civil rights—Prevent-

ing officer from performing duties

(1) If two or more persons in any State or Territory

conspire to prevent, by force, intimidation, or threat, any

10a

Excerpts U. S. Code

person from accepting or holding any office, trust, or place

of confidence under the United States, or from discharging

any duties thereof; or to induce by like means any officer

of the United States to leave any State, district, or place,

where his duties as an officer are required to be per-

formed, or to injure him in his person or property on ac-

count of his lawful discharge of the duties of his office,

or while engaged in the lawful discharge thereof, or to

injure his property so as to molest, interrupt, hinder, or

impede him in the discharge of his official duties;

Obstructing justice; intimidating party, witness, or

juror

(2) If two or more persons in any State or Terri-

tory conspire to deter, by force, intimidation, or threat,

any party or witness in any court of the United States from

attending such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to injure

such party or witness in his person or property on account

of his having so attended or testified, or to influence the

verdict, presentment, or indictment of any grand or petit

juror in any such court, or to injure such juror in his per-

son or property on account of any verdict, presentment,

or indictment lawfully assented to by him, or of his being

or having been such juror; or if two or more persons con-

spire for the purpose of impeding, hindering, obstructing,

or defeating, in any manner, the due course of justice in

any State or Territory, with intent to deny to any citizen

the equal protection of the laws, or to injure him or his

property for lawfully enforcing, or attempting to enforce,

the right of any person, or class of persons, to the equal

protection of the laws;

lla

Excerpts U. S. Code

Depriving persons of rights or privileges

(3) If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the prem-

ises of another, for the purpose of depriving, either directly

or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and im-

munities under the laws; or for the purpose of preventing

or hindering the constituted authorities of any State or

Territory from giving or securing to all persons within

such State or Territory the equal protection of the laws;

or if two or more persons conspire to prevent by force,

intimidation, or threat, any citizen who is lawfully entitled

to vote, from giving his support or advocacy in a legal

manner, toward or in favor of the election of any lawfully

qualified person as an elector for President or Vice Presi-

dent, or as a Member of Congress of the United States;

or to injure any citizen in person or property on account

of such support or advocacy; in any case of conspiracy

set forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance

of the object of such conspiracy, whereby another is in-

jured in his person or property, or deprived of having and

exercising any right or privilege of a citizen of the United

States, the party so injured or deprived may have an ac-

tion for the recovery of damages, occasioned by such in-

jury or deprivation, against any one or more of the con-

spirators.

R.S. §1980.

* * *

§1986. Same; action for neglect to prevent

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section

12a

Excerpts U. S. Code

1985 of this title, are about to be committed, and having

power to prevent or aid in preventing the commission of

the same, neglects or refuses so to do, if such wrongful

act be committed, shall be liable to the party injured, or

his legal representatives, for all damages caused by such

wrongful act, which such person by reasonable diligence

could have prevented; and such damages may be recovered

in an action on the case; and any number of persons guilty

of such wrongful neglect or refusal may be joined as de-

fendants in the action; and if the death of any party be

caused by any such wrongful act and neglect, the legal

representatives of the deceased shall have such action

therefor, and may recover not exceeding $5,000 damages

therein, for the benefit of the widow of the deceased, if

there be one, and if there be no widow, then for the bene-

fit of the next of kin of the deceased. But no action un-

der the provisions of this section shall be sustained which

is not commenced within one year after the cause of ac-

tion has accrued.

RS. $1981.

Code of Professional Responsibility

CODE OF PROFESSIONAL RESPONSIBILITY

DR 7-110 Contact with Officials.

** *

(B) In an adversary proceeding, a lawyer shall not

communicate, or cause another to communicate, as to the

merits of the cause with a judge or an official before

whom the proceeding is pending, except:

(1) In the course of official proceedings in the

cause.

(2) In writing if he promptly delivers a copy

of the writing to opposing counsel or to the adverse

party if he is not represented by a lawyer.

*“* *

14a

Disciplinary Enforcement Rules

DISCIPLINARY ENFORCEMENT RULES

** *

Rule 205. The Disciplinary Board of the Supreme Court

of Pennsylvania

(a) The Supreme Court shall appoint a board to

be known as “The Disciplinary Board of the Supreme

Court of Pennsylvania” which shall be composed of eleven

members of the Bar of this Commonwealth, one of whom

shall be designated by the Court as Chairman and another

ac Vice-Chairman, and two non-lawyer electors.

(b) The regular terms of members of the Board

shall be for three years, and no member shall serve for

more than two consecutive three-year terms. The terms

of one-third of the members of the Board, as nearly as may

be, shall expire on April 1 of each year. Except when

acting under Paragraph (c) (4), (6) and (7) of this rule,

the Board shall act only with the concurrence of not less

than seven members. Seven members shall constitute a

quorum.

(1) To consider and investigate the conduct of any

person subject to these rules and may initiate any such

investigation on its own motion or may undertake the

same upon complaint by any person.

(2) To appoint a Secretary, a Chief Disciplinary

Counsel, and such assistant disciplinary counsel and staff

as may from time to time be required to properly perform

the functions prescribed by these rules.

15a

Disciplinary Enforcement Rules

(3) To appoint three or more hearing committees

within each disciplinary district. Each committee shall

consist of three members of the bar of this Commonwealth

who maintain an office for the practice of law within that

district.

(4) To assign, through its Secretary, formal charges

to a hearing committee. The reviewing member of a hear-

ing committee who has passed upon Disciplinary Coun-

sel’s recommended disposition of the matter shall be in-

eligible to serve on the hearing panel.

(5) To review the conclusions of hearing com-

mittees with respect to formal charges and to prepare and

forward its own findings and recommendations, together

with the record of the proceeding before the hearing com-

mittee, to the Supreme Court.

(6) To assign periodically the members of hearing

committees within each disciplinary district to review and

approve or modify recommendations by Disciplinary

Counsel for dismissals, informal admonitions and institu-

tion of formal charges.

(7) To review, through a designated member, upon

application by Disciplinary Counsel, a determination by a

reviewing hearing committee member that a matter should

be concluded by dismissal, by private informal admonition

or by the institution of formal charges before a hearing

committee.

(8) To privately reprimand attorneys for miscon-

duct.

(9) To adopt rules of procedure not inconsistent

with these rules. Such rules may provide for the delega-

tion to the Chairman or the Vice-Chairman of the power

16a

Disciplinary Enforcement Rules

to act for the Board on administrative and procedural

matters and for the delegation to the Secretary of the

Board of the power to act under Paragraph (6) of this

subdivision.

(10) To cause testimony relating to the conduct of

formerly admitted attorneys to be perpetuated.

(11) To exercise the powers and perform the duties *

vested in and imposed upon the Board by law.

The Board shall, to the extent it deems feasible, con-

sult with officers of local bar associations in the counties

affected concerning any appointment which it is authorized

to make under these rules.

Amended and effective March 15, 1976; amended and ef-

fective March 14, 1980; amended Sept. 22, 1980; effective

120 days after Oct. 11, 1980; amended Sept. 23, 1980,

effective Oct. 1, 1980.

Rule 208 DISCIPLINARY ENFORCEMENT

Rule 208. Procedure

** *

(b) Formal hearing. Formal disciplinary proceed-

ings before a hearing committee shall be as follows:

(1) Proceedings shall be instituted by filing with

the Board a petition setting forth with specificity the

charges of misconduct.

(2) A copy of the petition shall be personally

served upon the respondent-attorney.

(3). Within 20 days after such service, the respon-

dent-attorney shall serve an answer upon Disciplinary

Counsel and file the original thereof with the Board. In

17a

Disciplinary Enforcement Rules

the event the respondent- attorney fails to file an answer,

the charges shall be deemed at issue.

(4) Following the service of the answer, if there

are any issues raised by the pleadings or if the respondent-

attorney requests the opportunity to be heard in mitigation,

- the matter shall be assigned to a hearing committee.

(5) The Board shall serve a notice of hearing upon

the respondent-attorney, or upon counsel for such attorney,

indicating the date and place of the hearing at least 15 days

in advance thereof. The notice of hearing shall state that

the respondent-attorney is entitled to be represented by

counsel, to cross-examine witnesses and to present evi-

dence in the attorney’s own behalf.

before hearing committees shall be governed by Board

rules, except that, unless waived in the manner provided

by such rules, at the conclusion of the hearing the hear-

ing committee shall submit a report to the Board contain-

ing its findings and recommendations.

* **

18a

Disciplinary Board Rules

RULES OF THE DISCIPLINARY BOARD

§89.1. Construction of Chapter.

This Chapter is promulgated for the purpose of as-

sisting the Office of Disciplinary Counsel, the respondent

and the Board to develop the facts relating to, and to

reach a just and proper determination of, grievances

brought to the attention of the Board. The Board recog-

nizes the temptation in disciplinary matters to raise pro-

cedural defenses where substantive defenses would be

unavailing and, therefore, the Board will not hold action

of a hearing committee invalid by reason of any nonpreju-

dicial irregularity, or for any error not resulting in a mis-

carriage of justice.

** *

Subchapter B. THE DISCIPLINARY BOARD

§93.21. The Disciplinary Board.

§93.23. Powers and duties.

(a) General Rule. Enforcement Rule 17-5(c) pro-

vides that the board shall have the power and duty:

* * *

(4) To assign, through the Board Chairman, formal

charges to a hearing committee.

* * *

(b) Consultations with local bar associations. En-

forcement Rule 17-5(c) provides that the Board shall to

the extent it deems feasible, consult with officers of local

bar associations in the counties affected concerning any

appointment which it is authorized to make under the En-

forcement Rules.

* * *&

19a

Proceedings, May 2, 1980

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 79-1561

Allen N. Brunwasser,

Plaintiff

vs.

Judge Eugene B. Strassburger III et al.,

Defendants

EXCERPT FROM PROCEEDINGS

Transcript of Excerpt from Proceedings on May 2,

1980, United States District Court, Pittsburgh, Pennsylva-

nia before Honorable Maurice B. Cohill, Jr., District Judge.

Appearances:

On behalf of the Plaintiff: Allen N. Brunwasser, Es-

quire

On behalf of the Defendants: Marvin A. Fein, Assis-

tant City Solicitor, Howland Abramson, Esquire

(2) (Proceedings began in open court at 9:15 a.m.)

THE COURT: We note Mr. Brunwasser just filed

a brief in behalf of the plaintiff.

MR. BRUNWASSER: Your Honor, I have a mo-

tion I would like to make before we begin.

20a

Proceedings, May 2, 1980

THE COURT: Very well.

MR. BRUNWASSER: If Your Honor please, I am

going to tell you something that you already know. I have

known Your Honor practically since you have been at the

Bar. We had a couple of cases together, which were a

pleasure, when Your Honor was a Juvenile Court Judge.

I was delighted to appear before you and also here in this

Court because { knew that no matter what the decision was,

it would be a decision that Your Honor felt was correct.

I never had any concern and I still do not.

However, I have a situation that I would like to bring

to your attention.

I don’t want to fle a 28 United States Code 144 af-

fidavit, but Your Honor may or may not know I am re-

spectfully protesting the recommendation that Joseph L.

Cosetti be a Bankruptcy Judge in this Court.

THE COURT: _ I did not know that.

MR. BRUNWASSER: Yes, and Your Honor, of

course, was on the committee.

I have a letter here from Berkley Wright, the

(3) Chief of the Division of Bankruptcy, indicating that I

will be allcwed to participate in the investigation about

Mr. Cosetti.

Now I would like to tell Your Honor the things that

I am going to tell the FBI so Your Honor can hear—

THE COURT: Well, yes, but Mr. Cosetti is not a

party to this case, Mr. Brunwasser.

MR. BRUNWASSER: He is, Your Honor.

THE COURT: He hadn’t been served.

21a

Proceedings, May 2, 1980

MR. BRUNWASSER: Your Honor, that’s not my

fault. I filed this case and I took the notices for service and

the complaints—

THE COURT: But he is still not a party.

MR. BRUNWASSER: He is a named defendant.

THECOURT: Yes, but he is not a party.

MR. BRUNWASSER: And he will—He is a named

defendant.

THE COURT: But he hasn’t been served.

MR. BRUNWASSER: | But, Your Honor, Mr. Fein,

who represents Mrs. Harris and Judge Strassburger, over

my objection will also represent Mr. Cosetti.

What I am saying is—

THE COURT: He hasn’t entered his appearance in

behalf of Mr. Cosetti.

MR. BRUNWASSER: But, Your Honor, should I

be required to bring a writ of mandamus against my friend,

(4) Marshal Turner?

Whatever the reason is, if Your Honor dismisses this

case, then I will go to the Marshal and I will ask them to

serve Mr. Cosetti. It is the same package.

He is a Judge—will be a Judge of this Court maybe,

and this Court will be asked to adjudicate a situation in-

volving his ethics, where Your Honor has said, ‘We are

delighted to have such a wonderful candidate come down

here,” and I have written information—

THECOURT: Well, I—

22a

Proceedings, May 2, 1980

MR. BRUNWASSER: -—that if ever anyone should

not be a Judge, it should be Mr. Cosetti.

THE COURT: _I think it is premature at this time

even to consider him, since he has not been served.

MR. BRUNWASSER: Well, then, Your Honor, if

Your Honor was going to base it—I was going to ask Your

Honor to certify the matter to the Chief Justice of the

United States under 28 United States Code 291 and 292 for

the appointment of an out-of-District Circuit Judge to de-

cide this case.

Now if Your Honor is going to deny the motion on

the basis that Mr. Cosetti has not been served, I am going

to respectfully ask Your Honor to adjourn the matter and

I will then go down personally and see Marshal Turner,

and I will have to say, “I’m going to lose my case,” and he

is going (5) to have to do something to serve the paper.

I don’t know, Your Honor, why Mr. Cosetti wasn’t

served, but I do know and I’m sure Your Honor knows and

Mr. Fein knows that he will be served; and when he is,

unless Your Honor removes Mr. Fein or the Court up in

the City-County Building removes him, Mr. Cosetti will be

a party; and no matter how you get down to it, even if he

isn’t a party, Your Honor is aware that he is a named de-

fendant, and he is one of the groups about whose conduct I

respectfully object, insofar as it affects my professional

reputation in this District; and there is no way to get out

of it.

Your Honor knows he is a defendant. Your Honor

knows if you keep the case in court, he is going to be here,

and he is liable to be a sitting Judge of this District at the

same time another Judge is asked to look into his conduct,

23a

Proceedings, May 2, 1980

and we all know the problem; and I don’t think any Judge

should be required to sit in judgment of the conduct of

another Judge in the same Court. I wouldn’t want to do

that, and I don’t want to impose it on Your Honor, and I

don’t want to file an affidavit; and I—Frankly, I don’t

know how to handle it,

I want to get along with the Court. I am at the end of

my career. I don’t want to have any hard or strained feel-

ings now, but I do have a problem; and | have been a

lawyer 31 years, and I don’t claim to be the smartest, but

(6) I. would have to be the dumbest not to recognize a

problem.

And I have written material that I want to bring to

Your Honor’s attention so you will see why I object to Mr.

Cosetti and what Your Honor and the other Judges of this

District will have to evaluate in the FBI report with this

material when it is finally submitted.

If I didn’t think I had sufficient to block his appoint-

ment, I certainly wouldn’t jeopardize my own neck by

coming forward.

I feel that he isn’t qualified professionally, tempera-

mentally or in any way to be a Judge; and it is my respect-

ful opinion that they are still looking around to get him a

job because he had the guts to run, and it took courage to

run in the mayoral election. That’s my feeling.

And they couldn’t get him on the PUC. I objected

there; and now they are trying to get him on down here.

He never was in a court in his life. He has never had

a case except when he sued a lady for not paying him in-

staliments on a washing machine, in Room 540. That was

the only time.

24a

Proceedings, May 2, 1980

The other time was when he was a witness before His

Honor, Judge Wekselman.

In any case,—

THE COURT: Your motion is noted. It is denied,

Mr. Brunwasser. Number one, it is premature. Number

two, (7) he is not yet a Judge of this Court.

MR. BRUNWASSER: Yes, but Your Honor has to

be aware—

THE COURT: And he won’t be, if your plea stands

up at the investigation.

MR. BRUNWASSER: All right. Anyway, Your

Honor, is Your Honor then saying that the motion is de-

nied for the reason that he has not been served, or that

Your Honor is putting the motion in abeyance?

THECOURT: _Itis denied.

MR. BRUNWASSER: All right. Then I would ask

Your Honor to let me put on record the reasons that I have

for objecting to it, so you—

THE COURT: Well, no. You can file that in writ-

ing, Mr. Brunwasser. I have ruled on that one.

Certified a true and correct transcript of an excerpt

from proceedings on May 2, 1980, before Honorable

Maurice B. Cohill, Jr., District Judge.

(s) Marilyn G. Brown

Marilyn G. Brown

Official Reporter

25a

Opinion, District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 79-1561

Allen N. Brunwasser,

Plaintiff

Vv.

Judge Eugene B. Strassburger, III; Alexander Unkovic, Es-

quire; Grace S. Harris, Esquire; Joseph L. Cosetti, Esquire;

Charles C. Keller, Esquire; Herbert Margolis, Esquire;

Chester Byerly, Esquire; The Disciplinary Board of The

Supreme Court of Pennsylvania, Allen B. Zerfoss, Esquire,

Chief Disciplinary Counsel; and Edward A. Burkhardt,

Esquire, Assistant Disciplinary Counsel,

Defendants.

OPINION

COHILL, D.J.

I. Factual Background

From 1974 to 1979 Allen N. Brunwasser, the plaintiff

in this case, was the subject of a disciplinary investigation

by the Disciplinary Board of the Supreme Court of Penn-

sylvania. During the course of this investigation, a com-

mittee was empanelled to hear the charges of unethical con-

duct pending against plaintiff. That committee later issued

an opinion describing Mr. Brunwasser’s “warrior’’-like ap-

26a

Opinion, District Court

proach to legal practice and concluding that he “thas played

fast and loose with the legal system, bending it to his own

purpose.’” Public censure by the Supreme Court and pro-

bation were recommended to attempt to “cure [plaintiff’s]

apparent contempt for the law.” Plaintiff responded to the

opinion and recommendation by filing, inter alia, a ‘‘Mo-

tion to Dismiss Proceeding Because of Violation of the

Doctrine of Fair Notice and Due Process of Law,” in which

he claimed his rights under the fifth, sixth, and fourteenth

amendment were infringed, and a “Motion to Dismiss Pro-

ceedings Because of Lack of Separation of Judicial and

Prosecution Functions.”’ He reasserted his objections to

the proceedings against him in a brief filed with the Dis-

ciplinary Board and at oral argument before the Board. Al-

though the Board accepted the factual findings, it ulti-

mately disagreed with the recommendation of the hearing

committee and ordered a private reprimand of plaintiff.

In its “Report and Recommendation,” the Discipli-

nary Board reviewed the disposition of various of plain-

tiff’s motions, including the denial of claims of unconstitu-

tional bias, infringement of free speech, vagueness of dis-

ciplinary rules, invidious discrimination, prejudice and in-

experience of the prosecutor, and lack of due process and

fair notice. ‘‘Respondent attacked everything conceivable

that might be attacked.” (Defendant’s Exh. A. p. 15.)

The Board concluded that the hearing committee had fol-

lowed procedures that satisfied due process and that viola-

tions of nine Disciplinary Rules were amply established

during the seven days of hearings. (Defendants’ Exh. A.

1 All quotes from the Committee Recommendation are derived

from plaintiff’s complaint, pp. 24-26, and not from the original

document.

27a

Opinion, District Court

pp. 7 and 16.) The Board particularly deplored plaintiff’s

resort to “illegal action” in filing a “‘patently false’ suit

claiming to represent someone other than himself when

he actually was representing himself in order to protect

his personal property. (Id. p. 15.)

Early in 1979, the case was certified to the Supreme

Court of Pennsylvania. That Court affirmed the rulings of

the Disciplinary Board and denied plaintiff’s motion for

oral argument. A petition for a writ of certiorari filed in

the Supreme Court of the United States was denied.

Having exhausted all avenues of relief in the state

court, but while the petition for writ of certiorari was still

pending, plaintiff filed this federal action. It purports to

be an action under 42 U.S.C. §§1983, 1985, and 1986; 18

U.S.C. §§241, 242, and 371; 28 U.S.C. §2201,’ 2254 and

1343 (3); and under the first, fifth, eighth, ninth and four-

teenth amendments to the United States Constitution.

Plaintiff has also moved to amend to assert jurisdiction un-

der 28 U.S.C. §1331. Among those named as defendants

are three individuals who complained to the Disciplinary

Board about plaintiff’s conduct or who were called as wit-

nesses at the hearing, the Disciplinary Board itself, its

chairman, its chief and assistant counsel, a review officer,

and the members of the hearing committee that was em-

panelled to hear the charges against the plaintiff. The com-

plaint incorporates by reference all the objections that

were made before the Disciplinary Board of the Supreme

Court ({ J., p. 44). Relief requested by the complaint is

2 Plaintiff cites 28 U.S.C. §2221 in {1 of his complaint, but

because he later describes this section as providing authority for

declaratory relief we assume he means §2201.

28a

Opinion, District Court

“limited” to declaratory and injunctive relief. Among the

orders sought are an injunction against defendants ‘‘so that

what has happened will not happen again,” an order re-

quiring defendants “to undo the damage they have oc-

curred and not to participate in similar conduct in the

future,” a declaration that the Disciplinary Board’s chief

counsel should no longer be permitted to prosecute cases,

and a complete investigation into the state proceedings

against plaintiff. At oral argument, plaintiff also requested

that the defendants be enjoined from publishing or dis-

tributing copies of the confidential opinion and recom-

mendation of the hearing committee.’ The pith of the ac-

tion is probably best articulated on the required summary

form attached to the complaint (form JS-44a) wherein

plaintiff explained that “[h]e respectfully asks that a pri-

vate reprimand given by the State Disciplinary Board be

revoked.”

All defendants, citing numerous grounds, have moved

to dismiss the complaint under Fed. R. Civ. P. 12 (b).

Il. Jurisdiction

The defendants have asserted that this Court is with-

out subject matter jurisdiction to hear this case.

Although the myriad claims raised by the plaintiff in

his complaint were viewed as “many novel theories relat-

ing to the practice of law” when they were raised before

the hearing committee and again before the Disciplinary

Board (Defendant’s Exh. A p. 15), he is not alone in turn-

ing to federal court for relief from an adverse state disci-

§ Plaintiff, however, has made that opinion a matter of public

record by incorporating it into his complaint.

29a

Opinion, District Court

plinary action. Many frustrated attorneys, as well as many

disappointed bar applicants, have taken their causes to the

federal district courts. In most of these cases the federal

courts have been reluctant to interfere with the operations,

or alter the results, of state bar proceedings. A body of

case law is emerging from decisions of several of the circuit

courts of appeal which, at least in part, supports the de-

fendants’ position that this Court lacks jurisdiction.

A 1969 decision of the Court of Appeals for the Ninth

Circuit, responding to a lawyer’s action seeking to enjoin

his suspension from practice by the Alaska Supreme Court,

took a straightforward approach to the jurisdictional is-

sue. In MacKay v. Nesbett, 412 F.2d 846 (9th Cir.

1969) , cert. denied 296 U.S. 960 (1970), the per curiam

opinion stated:

[O]rders of a state court relating to the admis-

sion, discipline, and disbarment of members of its bar

may be reviewed only by the Supreme Court of the

United States on certiorari to the state court, and not

by means of an original action in a lower federal court.

The rule serves substantial policy interests arising

from the historical relationship between state judicial

systems and the members of their respective bars, and

between the state and federal judicial systems. We are

persuaded that it is sound.

412 F.2d at 846.

Two years after McKay, the Eighth Circuit confronted

a similar jurisdictional question in a §1983 suit by an un-

successful bar applicant. The plaintiff in Feldman v. State

Board of Bar Examiners, 438 F.2d 699 (8th Cir. 1971),

challenged the Arkansas testing procedures, claiming he

30a

Opinion, District Court

was discriminated against on the basis of his religion and

mental disability, and asked the federal court to review his

test to determine if he had, in fact, passed. The district

court dismissed Feldman’s complaint as premature since he

had not sought review in the state supreme court prior to

instituting his federal action. In affirming, however, a

panel of the Eighth Circuit held that the district court was

permanently rather than temporarily unable to hear the

suit: the plaintiff’s only remedy was in pursuing his claim

to the state’s highest court and thereafter to the United

States Supreme Court on a petition for certiorari. The cir-

cuit court explained, “‘[a]s the trial court properly stated,

it is not an appellate court and cannot in such a case as this

review state court actions.” 438 F.2d at 704. However,

the Feldman decision was complicated by the fact that the

circuit court, while discussing jurisdiction, did also reach

the merits of plaintiff’s claims. It distinguished the plain-

tiffs’ case from other cases stating legitimate constitutional

claims:

Undoubtedly, could plaintiff show an invidious and

purposeful effort to discriminate against him or per-

haps an actual discrimination even without such an

intent, on any of the grounds he specifies or on any

other grounds such as fraud, he well might assert a

violation of his constitutional rights. There is little

question but that an applicant for admission to the bar

as an attorney is entitled to both substantive and pro-

cedural due process and equal protection guaranteed

by the Fourteenth Amendment.

438 F.2d at 703. Thus the door of the federal district court

was closed to some, but not all, disappointed bar appli-

cants.

3la

Opinion, District Court

A subsequent Tenth Circuit decision, although not dis-

cussing Feldman or McKay, offered some analytical expla-

nation for the jurisdictional dilemma. Doe v. Pringle, 550

F.2d 596, 597 (10th Cir. 1976) , cert. denied 431 U.S. 916

(1977) , recognized a “subtle but fundamental distinction”

between two types of claims that might be brought against

a state board of bar examiners [or disciplinary board]:

(1) a constitutional challenge to the state’s rules and regu-

lations governing admission [or discipline], and (2) a

claim, based on constitutional or other grounds, that the

state has unlawfully denied a particular applicant admis-

sion. Although federal courts do exercise jurisdiction over

constitutional challenges to rule-making authority or ad-

ministration of rules, the same is not true where a plaintiff

seeks district court review of a state court’s decision in a

particular case. “[T ]he latter claim may be heard, if it all,

exclusively by the Supreme Court of the United States.”

550 F.2d at 597. Doe v. Pringle seems to stand for the

proposition that an allegation of ongoing unconstitutional

procedure by a state board licensing or disciplining lawyers

will land a plaintiff in the district court while an attack

on a particular result will not. The difficult question re-

maining is how to respond to a complaint embodying both

claims or using one to bolster the other.

Two 1977 circuit opinions continued the trend of up-

holding state adjudications, but on different rationale. In

Richardson v. McFadden, 563 F.2d 1130 (4th Cir. 1977)

(en banc) , cert. denied 435 U.S. 968 (1978) , several black

law school graduates who had failed the South Carolina

bar examination brought a federal action for declaratory

and injunctive relief. After a hearing, the district court

denied relief. A panel of the Fourth Circuit reversed as to

some of the plaintiffs, finding evidence of arbitrary and

32a

Opinion, District Court

capricious action, and directed that they be certified as

having passed the exam. 540 F.2d 744 (4th Cir. 1976).

On rehearing en banc, the majority decided the case sub-

stantively against all the plaintiffs, finding insufficient

proof of unconstitutional discrimination. However, the

concurring opinion of three judges would have held that

the district court was without subject matter jurisdiction.

They believed that the Fourth Circuit should have followed

the teachings of the Eighth, Ninth, and Tenth Circuits in

Feldman, McKay, and Doe—that review lies exclusively in

the United States Supreme Court—and would have dis-

missed the instant claims without reaching the merits.

In Grossgold v. Supreme Court of Illinois, 557 F.2d

122 (7th Cir. 1977) , a panel of the Seventh Circuit reached

the conclusion that the Richardson concurrence urged. Af-

firming the dismissal of a case brought by an attorney who

was suspended from practice for a felony conviction de-

spite a presidential pardon, the court relied on several of

the cases discussed above. Thus, the panel concluded thet

“plaintiff pursued his proper remedy in the Supreme Court

of Illinois and subsequently in the Supreme Court of the

United States and is bound by the adverse result.” 557

F.2d at 125. The plaintiff’s argument in support of district

court jurisdiction was rejected:

He asserts that there was jurisdiction because

otherwise there would be no judicial forum to pass

upon his federal constitutional claim that the three-

year suspension granted by a state “administrative

agency” unconstitutionally interfered with the presi-

dential pardon . . . If no court could review the con-

stitutional question, the alleged constitutional depri-

vation could be redressed in district court under the

33a

Opinion, District Court

Section 1343 (3) subject matter jurisdiction grant. If

indeed judicial review of a claimed constitutional de-

privation were cut out entirely, grave constitutional

problems would be posed . . . The flaw in plaintiff's

contentions is that it overlooks the judicial review al-

ready accorded him. The Iilinois Supreme Court,

which is fully competent to pass on federal constitu-

tional questions, has passed upon this constitutional

question, and its decision became final when the Su-

preme Court of the United States denied certiorari.

Since the Illinois Supreme Court was bound to pass

on the constitutional question posed by the pardon,

the court’s denial of Grossgold’s petition for recon-

sideration necessarily implied that the constitutional

question was being decided against the plaintiff. Con-

sequently, there was no arguable constitutional ‘“de-

privation” .. . The doctrine of res judicata bars any

further litigation of this question.

557 F.2d at 124-125 (citation omitted) .

A very recent Florida district court case, Kimball v.

Florida Bar, 465 F. Supp. 925, 927 (S.D. Fla. 1979),

agreed with those circuit court cases holding that state bar

procedures for screening or disciplining attorneys are sub-

ject to constitutional review only by the United States Su-

preme Court on writs of certiorari to state supreme courts.

District Judge Roettger also noted that two earlier Supreme

Court cases in which bar procedures were substantively

scrutinized for constitutional flaws, Konigsberg v. State

Bar of California, 353 U.S. 252 (1957), and Schware v.

Board of Bar Examiners of State of New Mexico, 353 US.

252 (1957), were cases which reached the Supreme Court

directly from state supreme courts.

34a

Opinion, District Court

The parties have directed us to no Third Circuit deci-

sion which is directly on point on the jurisdictional issue,

nor has our own research uncovered one.’ After review of

the cases discussed above, we have concluded that the dis-

tinction developed between suits challenging unconstitu-

tional procedures and suits challenging specific results is

very difficult to implement. A better approach would be

a universal rule which provides that the only route for vin-

dication of constitutional challenges to state bar discipli-

nary procedures is by appeal to the state’s highest court

and subsequent petition for writ of certiorari. This ap-

pears to be the current law in the Seventh and Ninth Cir-

cuits. See Grossgold and McKay, supra.

In the instant case, plaintiff has attempted to avoid

the adverse results of the proceedings before the Discipli-

nary Board, the refusal of the Pennsylvania Supreme Court

to reconsider the matter, and the denial of certiorari by the

United States Supreme Court, by restating his challenges as

a civil rights suit. What he obviously wants, however, is a

reversal of the reprimand given him by his professional

peers in the Commonwealth of Pennsylvania. We believe

that we lack jurisdiction to reopen the case against him in

the guise of a civil rights action, This holding disposes of

plaintiff's claims under 42 U.S.C, §§1983, 1985 and 1986,

28 U.S.C, §§2201 and 1343 (3), and under the various con-

stitutional amendments. Plaintiff’s allegations of jurisdic-

tion under 18 U.S.C, §§241, 242 and 371 (criminal con-

spiracies) and under 28 U.S.C, §2254 (habeas corpus for

those in state custody) are clearly frivolous, if not irrespon-

sible, and need not be addressed.

‘We anticipate, however, that the Third Circuit will soon

have an opportunity to consider the matter,

35a

Opinion, District Court

Ill. Res Judicata—Collateral Estoppel

For the sake of argument and judicial economy, we

also will reach the defendant's substantive argument, One

issue clearly transcends and requires dismissal of this suit:

the preclusive effect of the prior state judgment.

Several of the cases that we reviewed earlier seem to

treat the topics of jurisdiction and res judicata as one,

E.G., Grossgold, supra, 557 F.2d at 125, Although both

lead to the same result, we believe they are independent

legal questions,

Res judicata and collateral estoppel were both as-

serted by defendants during oral argument, Both doctrines

are intended to avoid repetitious litigation and assure the

finality of judgments, Because the prior litigation in this

case took a different form and fewer parties were involved,

it might be argued that res judicata is technically inappli-

cable. However, collateral estoppel—issue preclusion—is

clearly applicable in a case where we have diligently

searched for an issue currently raised that was not raised

and vigorously pursued in the prior action,

In addition to the usual purposes of collateral estop-

pel—economy, finality, and reliance—that militate against

rehearing the same claims, considerations of comity are

also present here, A recent legal commentary suggests that

allowing plaintiffs to impeach state court judgments

through civil rights actions would deny state courts the

ability to decide with finality questions within their juris-

diction and would hinder the states in enforcing their laws;

“only if one believed that state courts were systematically

either unwilling or unable to enforce federal constitutional

rights could such costs be justified.”” Note, Developments

in the Law—Section 1983 and Federalism, 90 Harv. L.

36a ,

Opinion, District Court

Rev, 1133, 1336, (1977). Although the plaintiff here

seeks injunctive as well as declaratory relief, and we have

stated the problem in terms of collateral estoppel rather

than res judicata, what is clearly at stake is the integrity of

the reprimand which was authorized by the Supreme Court

of Pennsylvania and left undisturbed by the denial of cer-

tiorari.

New Jersey Educ, Ass’n v. Burke, 579 F.2d 764 (3d

Cir, 1978) , cert. denied 439 U.S, 894 (1978), relied upon

by plaintiff, is distinguishable and is, in fact, more helpful

to his opponents, In Burke, the Third Circuit reviewed a

district judge's abstention from a §1983 action in deference

to a pending state civil proceeding in which the plaintiffs

had “at least some prospect of vindicating their constitu-

tional rights.” Reversing, the court of appeals discussed

the principles behind abstention and a court’s duty to bal-

ance federal and state interests, Since the federal suit was

a class action challenging on constitutional grounds new

regulations of the New Jersey Board of Education and the

pending state proceeding was a statutory appeal, Judge

Adams wrote that “[n Jeither the traditional equitable aver-

sion toward intermeddling in criminal processes, nor the

state's interest in enforcing its laws in its own forum is

present,” 579 F.2d at 768, Although the state proceedings

involved in the instant case were not criminal in the usual

sense, they invoke our hesitancy to intermeddle since they

so clearly involve a matter vital to the effective operation

of the state court system; moreover, our interference would

reduce the ability of the Pennsylvania Supreme Court to

enforce its disciplinary rules,

The Burke court went on to consider whether the

pending and parallel state action would have an effect on

the federal action, After reviewing significant appellate de-

37a

Opinion, District Court

cisions, Judge Adams acknowledged that “a restrictive con-

cept to the right to a federal forum has significant advan-

tages,” such as discouraging vexatious litigation and con-

serving judicial resources. 579 F.2d at 774. Burke ulti-

mately held that a state court judgment forecloses a §1983

litigant from raising grievance in federal court only if such

claims have been pressed before, and decided by, a state

tribunal. Jd. Or, as the United States Supreme Court said

in an earlier abstention case, “we see no reason why a

party, after unreservedly litigating his federal claims in the

state courts although not required to do so, should be al-

lowed to ignore the adverse state decision and start all over

again in the district court.” England v. State Board of

Medical Examiners, 375 U.S. 411,419 (1964). In the case

before us plaintiff clearly and unreservedly pursued his

constitutional claims before the state board and the state’s

highest court. We think it makes no difference that plain-

tiff was not a voluntary party in the state proceedings since

he did voluntarily press his constitutional claims there as

well as in his petition for certiorari.

We recognize that the state of the law regarding the

preclusive effect of prior state judgments on §1983 cases

“teem[s] with inconsistencies.” See Burke, 579 F.2d at

773, n. 48, and cases cited therein. See also Comment, Res

Judicata and Section 1983: the Effect of State Court Judg-

ments on Federal Civil Rights Actions, 27 U:C.L.A. Law

Rev 177, 182-196 (1979). However, we believe that the

kind of repetitious, vexatious, and wasteful litigation

feared by both the Supreme Court and the Third Circuit

could not be better exemplified than by the suit before us.

Believing not only that comity requires us to avoid re-

opening a state disciplinary proceeding, but also that Mr.

38a

Opinion, District Court

Brunwasser is bound by the rulings on the constitutional

claims which he pursued in every way possible before the

state tribunal, we must dismiss this suit. We need not reach

the numerous other issues raised by the defendants.

IV. Other Motions

Plaintiff’s Motion to Amend, adding an allegation of

jurisdiction under 28 U.S.C. §1331 and a claim of damages

in excess of $10,000 will be granted; however, that claim

must be dismissed since all the claims asserted in the com-

plaint have succumbed to parts II and III of this opinion.

Plaintiff’s Motion to have Circuit or Other Judge Ap-

pointed to Adjudicate this Matter will be denied as it was

denied when earlier raised at oral argument. Besides being

moot, the matters raised therein are totally irrelevant to this

action.

An appropriate order follows.

(s) Maurice B. Cohill, Jr.

United States District Judge

39a

Opinion, District Court

Order, May 29, 1980

ORDER

[Caption Omitted]

AND NOW, this 29th day of May, 1980, consistent

with the preceding opinion, IT IS ORDERED, AD-

JUDGED, and DECREED that (1) Plaintiff’s Motion to

Amend BE and the same hereby is GRANTED: (2) Plain-

tiff’s Motion to have Circuit or Other Judge Appointed to

Adjudicate this Matter BE and the same hereby IS DE-

NIED; and (3) The Motions of all Defendants to Dismiss

this action BE and the same hereby ARE GRANTED.

(s) Maurice B. Cohill, Jr.

United States District Judge

40a

Memorandum Order, June 2, 1980

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 79-1561

Allen N. Brunwasser,

Plaintiff,

Judge Eugene B. Strassburger, III; Alexander Unkovic, Es-

quire; Grace S. Harris, Esquire; Joseph L. Cosetti, Esquire;

Charles C. Keller, Esquire; Herbert Margolis, Esquire;

Chester Byerly, Esquire; The Disciplinary Board of the

Supreme Court of Pennsylvania, Allen B. Zerfoss, Esquire,

Chief Disciplinary Counsel; and Edward A. Burkhardt, Es-

quire, Assistant Disciplinary Counsel,

Defendants.

MEMORANDUM ORDER

This Order is being entered to clarify the record in

this case.

Joseph L. Cosetti was named as a defendant in this

case, but had not been properly served when motions to

dismiss were filed nor when oral argument was heard.

However, counsel for the City of Pittsburgh argued on

his behalf, asserting entitlement to dismissal on the merits

as well as lack of personal jurisdiction. On May 16,

1980, Mr. Cosetti was served with notice of this suit. On

4la

Memorandum Order, June 2, 1980

May 29, 1980, this Court entered an opinion and order,

dismissing this action as to all defendants. One day later

a Motion to Dismiss was filed on behalf of Mr. Cosetti.

To avoid any confusion or misunderstanding an order will

be entered dismissing the action as to Mr. Cosetti in-

dividually. The same reasons for dismissal outlined in

the May 29 opinion—lack of subject matter jurisdiction

and collateral estoppel—apply to the claims against Mr.

Cosetti.

Therefore, now, this 2nd day of June, 1980, con-

sistent with this Court’s opinion of May 29, 1980, IT IS

ORDERED that the Motion to Dismiss filed on behalf of

Joseph L. Cosetti BE and the same hereby IS GRANTED.

/s/ Maurice B. Cohill, Jr.

United States District Judge

42a

Order, June 11, 1980

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 79-1561

Allen N. Brunwasser,

Plaintiff,

Vv.

Judge Eugene B. Strassburger, III; Alexander Unkovic, Es-

quire; Grace S. Harris, Esquire; Joseph L. Cosetti, Esquire;

Charles C. Keller, Esquire; Herbert Margolis, Esquire;

Chester Byerly, Esquire; The Disciplinary Board of the

Supreme Court of Pennsylvania, Allen B. Zerfoss, Esquire,

Chief Disciplinary Counsel; and Edward A. Burkhardt,

Esquire, Assistant Disciplinary Counsel,

Defendants.

ORDER

AND NOW, to-wit, this 11th day of June, the Court

having received plaintiff's Motion for Reargument and

Reconsideration of the Court’s Orders of May 29, 1980

and June 2, 1980, granting the motions of defendants to

dismiss, IT IS HEREBY ORDERED, ADJUDGED and

DECREED that plaintiff’s specific request that his mo-

tion be scheduled for oral argument be and the same here-

43a

Order, June 11, 1980

by is DENIED, and IT IS FURTHER ORDERED, AD-

JUDGED and DECREED that the plaintiff’s Motion for

Reargument and Reconsideration is DENIED.

Plaintiff also added the following handwritten nota-

tion to his Motion for Reargument and Reconsideration:

Plaintiff also respectfully requests an evidentiary

hearing on the 6/5/80 motion filed by Mr. Fein at

which proceeding the background of his representa-

tion can be investigated and his word proved by live

evidence subject to cross examination. Plaintiff will

not be satisfied by mere denial of the motion.

We have no record of a motion filed in this case on June

5, 1980, by Mr. Fein. If plaintiff is referring to the Mo-

tion to Dismiss filed on May 30, 1980 by Marvin A. Fein

in behalf of Joseph L. Cosetti, that motion was granted in

our order of June 2, 1980, and as stated previously here-

in, plaintiff’s Motion for Reargument and Reconsideration

is denied.

By this Order we intend to lay this case to rest, unless

otherwise instructed by the United States Court of Appeals

for the Third Circuit or the United States Supreme Court.

/s/ Maurice B. Cohill, Jr.

United States District Judge

Order, June 17, 1980

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

Civil Action No. 79-1561

Allen N. Brunwasser,

Plaintiff,

Vv.

Judge Eugene B. Strassburger, III; Alexander Unkovic, Es-

quire; Grace S. Harris, Esquire; Joseph L. Cosetti, Esquire;

Charles C. Keller, Esquire; Herbert Margolis, Esquire;

Chester Byerly, Esquire; The Disciplinary Board of the

Supreme Court of Pennsylvania, Allen B. Zerfoss, Esquire,

Chief Disciplinary Counsel; and Edward A. Burkhardt,

Esquire, Assistant Disciplinary Counsel,

Defendants.

ORDER

In the “paper chase” that this case has become, sev-

eral missives have passed one another in a confusing se-

quence. This Order, we hope, will finally clarify the rec-

ord.

On May 29, 1980, this Court entered an Order dis-

missing this action as to all defendants. That Order crossed

in the mails with a Motion to Dismiss of one of the defend-

ants for whom dismissal had been substantively argued

45a

Order, June 17, 1980

although he was not technically a party at the time of oral

argument; this Motion to Dismiss was granted in a Memo-

randum Order of June 2, 1980. The case was thereafter

considered “closed.” On June 5, 1980, plaintiff filed a

Motion for Reargument and Reconsideration, to which he

added a hand-written note concerning a motion filed by

the defendants on June 5, 1980; apparently he received a

copy of that motion just prior to filing his own. The Court,

however, received no such motion from defendants on June

5, 1980 and, finding plaintiff's motion to be without merit,

prepared an order denying it. This Order of Court was

entered June 11, 1980, after a Motion for Reasonable

Counsel Fees was filed with the clerk by defendants on

June 6, 1980 but before such motion reached this judge’s

chambers. (This, apparently, was the motion referred to

by the plaintiff in his handwritten note.) Our June 11th

Order prematurely—perhaps wishfully—expressed an in-

tent to “lay this case to rest.” After that June 11th Order

was filed but before it reached the plaintiff, he had filed

a “Citation of Additional Case Law and Request for Re-

consideration and Reargument.”

We now have two open motions. The plaintiff's

Request for Reconsideration and Reargument will be

denied, as will the request therein for further oral argu-

ment on this matter. Defendants’ Petition for Attorney’s

Fees is premature in light of the pending action brought

by plaintiff challenging the propriety of the defendants’

representation, Brunwasser v. Mulvihill, CA 80-557, re-

manded to the Court of Common Pleas by this Court on

May 29, 1980. So long as that action is viable, we shall

decline to consider the question of attorney’s fees pursuant

to 42 U.S.C. §1988.

46a

Order, June 17, 1980

Therefore, now, this 17th day of June, 1980, IT IS

ORDERED that Plaintiff's Motion for Reargument and

Reconsideration BE and the same hereby IS DENIED;

and Defendants’ Petition for Reasonable Counsel Fees BE

and the same hereby IS DENIED without prejudice.

/s/ Maurice B. Cohill, Jr.

United States District Judge

47a

Order, July 23, 1980

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

C.A. No. 79-1561 F

Allen N. Brunwasser

vs.

Judge Eugene B. Strassburger III et al

ORDER

AND NOW, to wit, July 23, 1980, IT IS ORDERED

that all of plaintiff’s motion filed July 22, 1980 be denied

in view of Judge Cohill’s Order of June 11, 1980.

/s/ William W. Knox

William W. Knox, U.S.D.J.

Acting as Miscellaneous Judge in

place of Judge Cohill.

CC: Counsel of record

48a

Judgment Order, Court of Appeals

OPINIONS AND ORDERS

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No, 80-2103

Allen N, Brunwasser,

Appellant.

Judge Eugene B. Strassburger, I11; Alexander Unkovic, Es-

quire; Grace S, Harris, Esquire; Joseph L. Cosetti, Es-

quire; Carl E, Glock, Jr., Esquire; Charles C, Keller, Es-

quire; Herbert Margolis, Esquire; Chester H, Byerly, Es-

quire; The Disciplinary Board of the Supreme Court of

Pennsylvania; Allen B, Zerfoss, Esquire, Chief Disciplinary

Counsel; and Edward A, Burkhardt, Esquire, Assistant Dis-

ciplinary Counsel

Appeal from the United States District Court for the

Western District of Pennsylvania (D.C, Civil No, 79-

01561)

Submitted Under Third Circuit Rule 12 (6)

February 10, 1981

49a

Judgment Order, Court of Appeals

Before: ALDISERT, HIGGINBOTHAM, Circuit Judges,

and LACEY,” District Judge.

JUDGMENT ORDER

After consideration of all contentions raised by ap-

pellant, it is

ADJUDGED AND ORDERED that the judgment of

the district court be and is hereby affirmed.

Costs taxed against appellant.

BY THE COURT,

A Leon Higginbotham, Jr.

Circuit Judge

Attest:

Sally Mrvos

Sally Mrvos, Clerk

Dated: Feb 13, 1981

*Honorable Frederick B, Lacey, United States District Court

for the District of New Jersey, sitting by designation,

50a

Order, April 3, 1981

UNITED STATES COURT OF APPEALS

For the Third Circuit

No, 80-2103

Allen N, Brunwasser,

Appellant

Vv.

Judge Eugene B., Strassburger, II11; Alexander Unkovic, Es-

quire; Grace S, Harris, Esquire; Joseph L. Cosetti, Es-

quire; Carl E, Glock, Jr., Esquire; Charles C, Keller, Es-

quire; Herbert Margolis, Esquire; Chester H. Byerly, Es-

quire; The Disciplinary Board of the Supreme Court of

Pennsylvania; Allen B, Zerfoss, Esquire; Chief Disciplinary

Counsel; and Edward A. Burkhardt, Esquire, Assistant Dis-

ciplinary Counsel

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOT-

HAM and SLOVITER, Circuit Judges, and LACEY", Dis-

trict Judge.

*Honorable Frederick B, Lacey, United States Distriet Court

for the District of New Jersey, sitting by designation,

5la

Order, April 3, 1981

The petition for rehearing filed by ALLEN N. BRUN-

WASSER, appellant in the above entitled case having been

submitted to the judges who participated in the decision

of this court and to all the other available circuit judges

of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and

a majority of the circuit judges of the circuit in regular

active service not having voted for rehearing by the court

in banc, the petition for rehearing is denied.

By the Court,

A Leon Higginbotham, Jr.

Circuit Judge

Dated: April 3, 1981

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.