# Petition — Brunwasser v. Strassburger

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 829

## Text

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
(C) Table of Contents .......... opseonenesonsenssonovsessessoese ii
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

ii

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

iv

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

Vv

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.

10
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.

11
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,

12
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.

13
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.

14
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.

15
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.

16
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.

17
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

18
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.

19
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?

20
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

21
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,

22
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,

23
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.

24
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-

25
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

26
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.

27
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.

28
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.

29
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

la
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.

2a
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.

* * *

3a
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

4a
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

5a
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,

6a
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.

7a
Excerpts U. S. Code

(c) An applicant shall not be deemed to have ex-
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

8a
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-

9a
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.
(c) The Board shall have the power and duty:

(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.

(c) Hearing committee procedures. Proceedings
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,
v.

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.

V.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2208%3A1. Public record. Not legal advice.