Petition for Writ of Certiorari — Grabner v. Conti

86 1609 ) 7 Sts

MAR 28 87

JOSEPH F. SPANIOL, JR.

CLERK

No.

In the Supreme Court of the

Anited States

Term, 198

JOHN JOSEPH GRABNER, III,

Petitioner

vs.

LAWRENCE CONTI AND ANTELINE PENDEL,

Respondents

PETITION FOR WRIT OF CERTIORARI

DIRECTED TO THE SUPERIOR COURT OF

PENNSYLVANIA

ALLEN N. BRUNWASSER,

Attorney for Petitioner

P. O. Box 22212

Pittsburgh, PA 15222

(412) 391-0329

Murrelle Printing Ca, Box 100, Sayre, Pa 18840—{717) 888-2244

Statement of Question Presented for Review

STATEMENT OF QUESTION PRESENTED FOR

REVIEW

Do the First, Fifth, Ninth and Fourteenth Amend-

ments of the United States Constitution prevent a state

whose own constitution and statutes provide a remedy for

every injury from refusing all remedies against a Police

Chief who, inter alia, breaks up Petitioners home, causes

his wife to leave and not return by threats and physical

abuse, makes her pregnant and forces her to abort and

challenges Petitioner/husband to do anything about it?

TABLE OF CONTENTS

PAGE

Statement of Question Presented for Review... . i

Table of Contents and Table of Citations...... ii

Petition for Writ of Certiorari Directed to the

Superior Court of Pennsylvania........... ]

Reference to Official and Unofficial Reports of

the Opinions Delivered in the Courts Below 2

Constitutional Provisions, Statutes and Or-

Ginemons Igwcived . — .5.. acs cis beens) 3

Concise Statement of the Case Containing the

Facts Material to the Consideration of the

Ouestion Praseted . .. .26cssu sen cdueeoes 6

Reasons for the Allowance of the Writ ........ 8

EE 5.3. cG sds bo cee ee eek oleae ree 14

APPENDIX:

Memorandum and Order, filed November 30,

| DEPP PeTerTer Ie eS oe Oe eS la

Order, dated December 20, 1985 ............. 7a

Appeal from Order of the Court of Common

Pleas of Beaver County, Civil at No. 2613

of 1981 and No. 2614 of 1981 ............ 8a

Momamishns |. occ eke 9a

Application for Reargument.................. 10a

Order of Court, dated February 14, 1986...... 22a

AEs ok DOG. Fe 3 ks ee a ees 23a

AE Ge FU. TI ieee hs keene kntae 24a

Order, dated December 30, 1986 ............. 25a

. il

Complaint in Equity at No. 2613 of 1981...... 26a

Complaint in Trespass at No. 2614 of 1981 .... 36a

iii

TABLE OF CITATIONS

CASES:

Accardi v. Shaughnessy, 1954, 374 U.S. 260, 74

Se ee ee a een ee re

Adler, Barish, etc. v. Epstein et al, 1978, 482

ee SS FS B+ Rerrrr rer rreS

Angle v. Chicago, St. P. M. and O Ry., 1894,

Oe RS MU, cs pe da cn atece se

Bartanus v. Lis, 1984, 332 Pa. Superior Ct. 48,

ORT SR ee ee

Brinker-Hoff-Faris Trust and Savings Co. v.

Hill, 1930, 281 U.S. 673, 50 S.Ct. 451 ....

Brown v. Commonwealth of Pennsylvania,

Pennsylvania State Police, 1984, 85 Pa.

Commonwealth Ct. 643, 482 A.2d 1360...

Bush v. Lucus, 1983, 462 U.S. 367, F.N. 10,

ee, a ea ee ease eases

California Motor Transport Co. v. Trucking

Unlimited, 1972, 404 U.S. 500, 92 S.Ct.

Dombrowski v. Philadelphia, 1968, 431 Pa.

ee, ee Ae ia 5 ho cd cee eho ee ieee ee

Estate of Gavilla, 1980, 490 Pa. 535, 417 A.2d

RRAREE os Mee ie ea

iv

12

13

ll

Fabio v. Civil Service Commission of the City

of Philadelphia, 1980, 489 Pa. 309, 414

PS ey Se eS ee eee a i ee

Faust v. Police Civil Service Commission of the

Borough of State College, 1975, 22 Pa.

Commonwealth Ct. 123, 347 A.2d 765 ....

Gargis Estate, 1977, 474 Pa. 237, 378 A.2d 307

Garrison v. State of La., 1964, 379 U.S. 64, 85

ee iS sceke eas seas ted ta ae

Hudson v. Palmer, 1984, 468 U.S. 517, 104

fo RB Fa ee ree te a

Jones v. City of Pittsburgh, Department of Fire,

1984, 505 Pa. 25, 476 A.2d 895 ..........

Kazmarek v. New Bethlehem Borough Council,

1984, 84 Pa. Commonwealth Ct. 19, 478

RS hak bs eee a a ee eee cs

Linn v. United Plant Guard Workers of

America, 1966, 383 U.S. 53, F.N. 6, 86

3: Mf) | Se ie Ae eee

Logan v. Zimmerman Brush Co., 1982, 455

ie & 8 FF: ie” Sees

Marbury v. Madison, 1803, 1 Cranch 137, 2

Raia netp ine ge Karp

te PES ORE Ey Se Pree ror ly eee er

BP SapuWavede ered tak taatteen eee

| PEEP EUT EOP ER PTT e Te nn rer a fe

Oudinot v. Unemployment Compensation Board

of Review, 1983, 78 Pa. Commonwealth

CE. BR, Se Pee Sk 65.0 0 eke eee

10

12

10

Rouse Philadelphia, Inc. v. Ad Hoc ‘78, 1979,

274 Pa. Superior Ct. 54, 417 A.2d 1248 ...

Service v. Dulles, 1934, 354 U.S. 363, 77 S.Ct.

RIOD ok ccd kncacdcdcgesueerene cers:

Tomkiel v. Tredyffrin Township Board of

Supervisors, 1982, 64 Pa. Commonwealth

Ct. 418, 440 A.2d GOO... 2.2... 2c ee eeee:

Trustees of Dartmouth College v. Woodward, 4

WN TOG ov ddan con sc ce s0veepewenes

Zamlocki v. Redhail, 1978, 434 U.S. 374, 98

aes Enc cc acwadececscaseeel one

Statutes:

23. Pa. C.S.A. 102 (The Pennsylvania Divorce

Codie 08 BIG i ik.ccc ccs deceidowewends das

vi

10

13

a

Petition

IN THE SUPREME COURT OF THE UNITED

STATES

JOHN JOSEPH GRABNER, III

Petitioner

V.

LAWRENCE CONTI AND ANTELINE PENDEL,

Respondents

PETITION FOR WRIT OF CERTIORARI DIRECTED

TO THE SUPERIOR COURT OF PENNSYLVANIA

To the Honorable, the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

John Joseph Grabner, III respectfully presents this

petition for allowance of certiorari to the Superior Court of

Pennsylvania.

-

Opinions Below and Jurisdiction

REFERENCE TO OFFICIAL AND- UNOFFICIAL

REPORTS OF THE OPINIONS DELIVERED IN THE

COURTS BELOW

1. On November 30, 1984 and January 21, 1985

Judge (now President Judge) Robert C. Reed entered the

attached orders in the Court of Common Pleas of Beaver

County, Pennsylvania, Civil Division at No. 2614 of 1981

and No. 2613 of 1981. So far as Petitioner can discover, the

opinions are unreported.

2. The Superior Court of Pennsylvania affirmed on

December 20, 1985 and entered the attached order and

unreported opinion at Numbers 44, 45 and 223 Pittsburgh

1985 and

3. Refused Petitioner's timely presented and here

attached “Application for Reargument” on February 14,

1986 by the attached letter order.

4. A timely Application for Appeal to the Supreme

Court of Pennsylvania was denied, without opinion, and by

the attached letter order at No. 129 W.D. Allocatur

Docket 1986 on January 5, 1987.

JURISDICTION

Jurisdiction to petition the United States Supreme

Court for certiorari to the Superior Court of Pennsylvania

is founded upon 28 U.S.C. 1257(3).

3

Constitutional Provisions, Statutes and Ordinances

Involved

CONSTITUTIONAL PROVISIONS, STATUTES AND

ORDINANCES INVOLVED

Article 1, Section 1 of Pennsylvania Constitution: In-

herent Rights of Mankind. :

Section 1. “All men are born equally free and inde-

pendent, and have certain inherent and_ indefeasible

rights, among which are those of enjoying and defending

life and liberty, of acquiring, possessing and protecting

property and reputation, and of pursuing their own happi-

ness.

Article 1, Section 11 of Pennsylvania Constitution:

Courts to be open; suits against the Commonwealth.

Section 11. “All courts shall be open; and every man

for au: injury done him in his lands, goods, person or repu-

tation shall have remedy by due course of law, and right

and justice administered without sale, denial or delay.

Suits may be brought against the Commonwealth in such

manner, in such courts and in such cases as the Legisla-

ture may by law direct.”

Article 1, Section 20 of Pennsylvania Constitution:

Right of Petition.

Section 20. “The citizens have a right in a peaceable

manner to assemble together for the common good, and to

apply to those invested with the powers of government for

redress of grievances or other proper purposes, by peti-

tion, address or remonstrance.”

4

Constitutional Provisions, Statutes and Ordinances

Involved

Article 1, Section 26 of the Pennsylvania Constitution:

Subdivisions: No. Discrimination by Commonwealth or its

Political Subdivisions.

Section 26: “Neither the Commonwealth nor any

political subdivision thereof shall deny to any person the

enjoyment of any civil right, nor discriminate against any

person in the exercise of any civil right.”

First Amendment to United States Constitution.

“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.”

Fifth Amendment to United States Constitution.

“No person shall be—deprived of life, liberty, or prop-

erty, without due process of law:—”

Ninth Amendment to United States Constitution.

“The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others

retained by the people.”

Fourteenth Amendment to United States Constitu-

tion.

Section 1. “All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the Unites States and of the state wherein they

reside. No state shall make or enforce any !aw which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

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

+

Constitutional Provisions, Statutes and Ordinances

Involved

deny to any person within its jurisdiction the equal protec-

tion of the laws.”

42 Pa. C.S.A. 5101(a).

“Remedy to exist for legal injury.

(a) General rule—Every person for a legal injury done

him in his lands, goods, person or reputation shall have

remedy by due course of law, and right and justice

administered without sale, denial or delay.”

23 Pa. C.S.A. 102 (The Pennsylvania Divorce Code of

1980).

Section 102. Legislative findings and intent.

(a) The family is the basic unit in society and the

protection and preservation of the family is of paramount

public concern.

Statement of the Case

CONCISE STATEMENT OF THE CASE CONTAINING

THE FACTS MATERIAL TO THE CONSIDERATION

OF THE QUESTION PRESENTED

S——

1. Petitioner was and still is a married man who at

all times here relevant lived with his wife in the city of

Beaver, Beaver County, | Pennsylvania.

2. Lawrence Conti is the Police Chief of nearby

MONACA Borough in the same county and Anteline

Pendel is Petitioner's sister-in-law (the sister of his wife).

~

3. Petitioner filed in the Court of Common Pleas of

Beaver County TWO Civil Division actions, both founded

upon

A. his own personal experiences with Respon-

dents and

B. information obtained in sworn oral deposi-

tions taken from his wife after proper notice of this

event was given Respondents.

4. One action is in equity at No. 2613 of 1981 and

A. after detailing the factual conduct about

which Petitioner complains

B. requests Respondents be ordered to stop

what they are doing.

5. The other action filed at No. 2614 of 1981

A. incorporates the facts of the equity case and

B. requests money damages.

Statement of the Case

6. Rather than repeat verbatim what these state

pleadings assert, the equity complaint is filed as part of

this Petition (26a) and this Honorable Court requested to

read Respondent's conduct directed against Petitioner and

his wife.

7. The state courts advised Petitioner in the

attached opinions and orders that they did not intend to

intercede or protect him against Respondents’ conduct so

8. he now respectfully requests the United States

Supreme Court to come to his aid.

Reasons for the Allowance of the Writ

REASONS FOR THE ALLOWANCE OF THE WRIT

Do the First, Fifth, Ninth and Fourteenth Amend-

ments of the United States Constitution prevent a state

whose own constitution and statutes provide a remedy for

every injury from refusing all remedies against a Police

Chief who, inter alia, breaks up Petitioners home, causes

his wife to leave and not return by threats and physical

abuse, makes her pregnant and forces her to abort and

challenges Petitioner/husband to do anything about it?

9. This court has advised “marriage is one of the bas-—

ic civil rights of man; fundamental to our very existence

and survival.” Zamlocki v. Redhail, 1978, 434 U.S. 374,

383, 98 S.Ct. 673, 679, and declared in

10. Linn wv. United Plant Guard Workers of

America, 1966, 383 U.S. 53, 64, FN. 6, 86 S.Ct. 657,

664, F.N. 6 that “The fact that the Board has no authority

to grant effective relief aggravates the state's concern since

the refusal to redress an otherwise actionable wrong

creates disrespect for the law and encourages the victim to

take matters into his own hands. The function of libel suits

in preventing violence has long been recognized”. |

11. The Pennsylvania courts do not intend, at least

in this case, to help Petitioner preserve and protect his

marriage and, sub silento, appear to invite him to take the

self-help which courts were organized to prevent. Bush v.

Lucus, 1983, 462 U.S. 367, 374, F.N. 10, 1035 S.Ct. 2404,

2409, F.N. 10:

In Marbury v. Madison, 1803, 1 Cranch 137, 163, 2

L.Ed. 60, Chief Justice Marshall invoked the authority of

Reasons for the Allowance of the Writ

Blackstones commentaries in support of this proposition.

Blackstone had written: “It is a general and indisputable

rule, that where there is a legal right, there is also a legal

remedy by suit or action at law, whenever that right is in-

vaded. It is a settled and invariable principle in the laws of

England that every right, when withheld, must have a

remedy and every injury its proper redress” and

12. In Pennsylvania, marriage is founded on contract

law. Estate of Gavilla, 1980, 490 Pa. 535, 540, 417 A.2d

168, 171; McGrath’s Estate, 1935, 319 Pa. 309, 314, 179

A. 599, 602; Gargis Estate, 1977, 474 Pa. 237, 378 A.2d

307 and

13. Intentional interference in contract rights is ac-

tionable. Adler, Barish, etc. v. Epstein et al., 1978, 482 Pa.

416, 393 A.2d 1175, but

14. A marriage contract, on which preservation of

organized society and civilization is founded, has now been

carved out as an exception.

15. In Pennsylvania, intentional infliction of emo-

tional distress is actionable. Bartanus v. Lis, 1984, 332 Pa.

Superior Ct. 48, 480 A.2d 1178 (Termination of right to

sue for alienation of son's affection does not forclose claim

for intentional infliction ~f emotional distress) but

16. not when a married man in concerned.

17. In Pennsylvania, continuous tort can be en-

joined. Rouse Philadelphia, Inc. v. Ad Hoc ’78, 1979, 274

Pa. Superior Ct. 54, 69, 417 A.2d 1248, 1257 (use of

obscenities, threats, “continued trespass,” “conduct which

is violent, abusive and illegal,” “a pattern of violent, abu-

sive behavior’) but

Reasons for the Allowance of the Writ

18. not if the person who complains is a married

man.

19. Section 684 of the Restatement of Torts 2d pro-

scribes “causing one spouse to separate from or refuse to

. return to the other spouse” especially when “emotional dis-

tress” or “sexual intercourse” is involved (see subsection “j”

on “damages’) but

20. Although Pennsylvania courts usually agree with

the restatement, they decline when the injured person is a

married man.

21. Pennsylvania courts always condemn misconduct

of a police officer and hold him to a higher conduct

standard both on and off duty, especially when he fools

with someone elses wife or engages in romance. Jones v.

City of Pittsburgh, Department of Fire, 1984, 505 Pa. 25,

476 A.2d 895 (citing cases); Faust v. Police Civil Service

Commission of the Borough of State College, 1975, 22 Pa.

Commonwealth Ct. 123, 347 A.2d 765; Fabio v. Civil

Service Commission of the City of Philadelphia, 1980, 489

Pa. 309, 414 A.2d 82; Oudinot v. Unemplogment Compen-

sation Board of Review, 1983, 78 Pa. Commonwealth Ct.

150, 467 A.2d 84; Kazmarek v. New Bethlehem Borough

Council, 1984, 84 Pa. Commonwealth Ct. 19, 478 A.2d

514; Brown v. Commonwealth of Pennsylvania, Pennsylva-

nia State Police, 1984, 85 Pa. Commonwealth Ct. 643, 482

A.2d 1360; Tomkiel v. Tredyffrin Township Board of

Supervisors, 1982, 64 Pa) Commonwealth Ct. 418, 440

A.2d 690, but

22. Give no private remedy when a married man is

involved.

1]

Reasons for the Allowance of the Writ

23. Pennsylvania courts enjoin improper police ac-

tivity. Dombrowski v. Philadelphia, 1968, 431 Pa. 199, 245

A.2d 238 (improper evictions) but

24. not when a married man complains.

25. Petitioner respectfully argues that the above cit-

ed Pennsylvania constitutional and statute provisions man-

date that state to act in preservation of marriage and stop

Respondents dead in their tracks, but if the state refuses

relief, this court should provide it.

A. Petitioner can find no case like this one but

he respectfully suggests that federal decisions in the

no remedy required, but if provided, it must be fairly

enforced area are relevant. For example—

(1) “Almost a century ago, the court held

that the constitution does not require states to

grant appeals as of right to criminal defendants

seeking to review alleged trial errors (case omit-

ted). Nonetheless, if a state has created appellate

courts as ‘an integral part of the system for finally

adjudicating the guilt or innocence of a defen-

dant (case omitted), the procedures used in de-

ciding appeals must comport with the demands

of the due process and equal protection clauses of

the constitution. ” Evitts v. Lucey, 1985, 469

U.S. 387, 393, 105 S.Ct. 830, 834 (Due process

requires “fairness between the state and the indi-

vidual dealing with the state, regardless of how

other individuals in the same situation may be

treated” whereas equal protection involves class

distinctions, 469 U.S. at 405, 105 S.Ct., at 841)

and

12

Reasons for the Allowance of the Writ

(2) Although not required to provide an ad-

ministrative procedure, the executive who does

cannot deviate from the protections provided.

Morton v. Ruiz, 1974, 415 U.S. 199, 235, 94

S.Ct. 1055, 1074; Service v. Dulles, 1934, 354

U.S. 363, 77 S.Ct. 1152; Accardi v. Shaughnessy,

1954, 374 U.S. 260, 74 S.Ct. 499 and

(3) Logan v. Zimmerman Brush Co., 1982,

455 U.S. 422, 102 S.Ct. 1148 (“a state tort claim

is a species of ‘property’ protected by the due

process clause.” Right to court access cant be

taken away by “at will” discretion of person to

whom court has delegated authority and by a

procedure into which a plaintiff has no input or

control).

B. Petitioner also respectfully requests the

following decisions have application to his present pe-

tition.

(1) When a state provides a defense to a

tort cause of action, the provision must serve a

state purpose and be rational and non-arbitrary.

Martinez v. California, 1980, 444 U.S. 277, 282,

100 S.Ct. 553, 557 (absolute immunity to parole

officer when released convict kills member of

public).

(2) Garrison v. State of La., 1964, 379 U.S.

64, 69, 85 S.Ct. 209, 213 (action in libel created

to stop duels, self-help and breach of the peace).

(3) Angle v. Chicago, St. P. M and O Ry.

1894, 151 U.S. 1, 19, 14 S.Ct. 240, 247 (legisla-

13

Reasons for the Allowance of the Writ

ture cannot condone what is illegal and make it

legal; action for intentional interference in con-

tract rights preserved on appeal, 151 U.S. at 10,

14 S.Ct. at 28).

(4) “Whether acting through its judiciary

or through its legislature, a state may not deprive

a person of all existing remedies for the en-

forcement of a right, which the state has no

power to destroy, unless there is, or was, afforded

to him some real opportunity to protect it.”

Brinker-Hoff-Faris Trust and Savings Co. v. Hill,

1930, 281 U.S. 673, 682, 50 S.Ct. 451, 454 (state

judges take away remedy to protect property; fed-

eral court will supply it. “The federal guaranty of

due process extends to state action through its ju-

dicial as well as through its legislative, executive

or administrative branch of government,” 281

U.S. at 681, 50 S.Ct. at 454.)

(5) Hudson v. Palmer, 1984, 468 U.S. 517,

523, 104 S.Ct. 3194, 3198 (right of petition

“includes a reasonable right of access to the

courts’); California Motor Transport Co. v.

Trucking Unlimited, 1972, 404 U.S. 500, 508, 92

S.Ct. 609, 612 (“Certainly the right to petition

extends to all departments of the government.

The right of access to the courts is indeed but

one aspect of the right to petition’).

C. Way back in 1819, the sanctity of the mar-

riage contract received United States Supreme Court

attention in the Article 1, Section 10 discussions of

the Trustees of Dartmouth College v. Woodward, 4

Wheaton 518 at 696 (“A man has just as good a right

14

Reasons for the Allowance of the Writ

to his wife, as to the property acquired under a mar-

riage (697) contract. He has a legal right to her society

and her fortune; and to divest such right without his

default, and against his will, would be as flagrant a

violation of the principles of justice, as the confiscation

of his own estate. I leave this case, however, to be set-

tled when it shall arise’).

CONCLUSION

A. The court is respectfully requested to take judi-

cial notice of the rapid deterioration of institutions and

values since acceptance of the idea that everyone has a

right “to do his own thing.”

B. Institutions and leaders are the subject of dis-

respect and ridicule and few persons have any sense of re-

sponsibility in the now accepted quest for pleasure and in-

dividual indulgence.

C. People with the dreaded AIDS disease argue the

federal constitution gives them an absolute right to have it

and affirmatively resist a change in lifestyle or any steps to

even be examined so other unwary and innocent folks can

be protected.

D. Bank robbers, murderers and terrorists claim

they are only political activists, so

E. It was not long until the most sacred vow of mar-

riage was destroyed by so-called no-fault divorces with the

subsequent break-up of the family, abandonment of faithful

spouses and children and refusal to punish those third par-

ties who cause the problems.

15

Conclusion

F. When Petitioner's counsel was in law school, a

suggestion that a chief of police could do what he has here

done to Petitioner and escape being called to account or

even forced to stop, would have sounded like a book review

of an off-beat novel (probably condemned as obscene) but

G. Now Petitioner is left without a remedy and even

subject to Conti threats and physical retaliation when he

complains.

H. The Commonwealth of Pennsylvania guarantees,

both in its constitution and by its statutes, that there shall

be no right without a remedy, but then carves out

husbands as an exception.

I Petitioner respectfully urges the United States

Supreme Court to now advise this is not so and begin, by

this decision, a return to the middle-class values that made

this country great and set a standard for other countries to

follow.

Respectfully submitted,

ALLEN N. BRUNWASSER

Attorney for Petitioner

la

Memorandum ¢> Order, Nov. 30, 1984

APPENDIX

JOHN JOSEPH GRABNER, III

vs.

LAWRENCE CONTI and ANTELINE PENDEL

No. 2614 of 1981

Civil Action—Law

\

JOHN JOSEPH GRABNER, III

VS.

LAWRENCE CONTI and ANTELINE PENDEL

No. 2613 of 1981

Civil Action—Equity

Judge Robert C. Reed

MEMORANDUM & ORDER FILED

Filed November 30, 1984

PRELIMINARY OBJECTIONS—DEMURRER—CRIM-

INAL CONVERSATION—ALIENATION OF AFFEC-

TIONS

Defendant filed preliminary objections in the nature of a

demurrer to complaint which attempted to allege a cause

of action based on torts of alienation of affections and crim-

inal conversation. Plaintiff also seeks relief for the tort of

“conduct unbecoming a police officer.”

Held: Demurrer sustained and complaint dismissed. The

torts of alienation of affection and criminal conversation

have been abolished. “Conduct unbecoming a police offi-

cer” is not a tort and therefore not a basis for recovery.

2a

Memorandum ¢> Order, Nov. 30, 1984

Counsel for Plaintiff—Allen N. Brunwasser, Esq.

Counsel for Defendant Conti—Charles F. Bowers, Jr.,

Esq.

Counsel for Defendant Pendel—Roberta C. Higley, Esq.

IN THE COURT OF COMMON PLEAS OF BEAVER

COUNTY PENNSYLVANIA

CIVIL ACTION—LAW

No. 2614 of 1981

JOHN JOSEPH GRABNER, III,

Plaintiff,

VS.

LAWRENCE CONTI and ANTELINE PENDEL,

Defendants.

CIVIL ACTION—EQUITY

No. 2613 of 1981

JOHN JOSEPH GRABNER, IIL,

Plaintiff,

VS.

LAWRENCE CONTI and ANTELINE PENDEL,

Defendants.

MEMORANDUM AND ORDER

Reed, J. November 30, 1984

Plaintiff filed the present actions wherein he alleges

that defendant Conti, with the aid of defendant Pendel,

plaintiff's sister-in-law, induced plaintiff's wife to leave him

and that as a result she engaged in an adulterous relation-

3a

Memorandum & Order, Nov. 30, 1984

ship with defendant Conti. Presently before the Court are

defendant Conti's preliminary objections in the nature of

motions to strike, motions for more specific pleading, and

demurrer.

Although not specifically pleaded, the plaintiff is

apparently attempting to establish a cause of action based

upon alienation of affections, criminal conversation, Section

684 of the Restatement (Second) of Torts, and/or “conduct

unbecoming a police officer,” a novel theory which the

plaintiff nevertheless urges us to adopt.

In support of the motion for demurrer; defendant

Conti contends that since Pennsylvania no longer recog-

nizes criminal conversation or alienation of affections as ac-

tionable offenses, the plaintiff has failed to set forth a cause

of action upon which relief may be granted. We agree.

The common-law action for criminal conversation,

which protected a partys right to consortium, was

abolished by the Pennsylvania Supreme Court in Fadgen

v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976). See also

Kyle v. Albert, 28 Bucks 259 (1976).

Furthermore, the common-law tort for alienation of

affections, which was often confused with criminal conver-

sation, but nevertheless separate and distinct, was

abolished in 1935 at 49 P.S. Sec. 170, which states:

Sec. 170 Actions for alienation of affections

abolished; exceptions.

In all civil causes of action for alienation of affec-

tions of husband or wife, except in such cases where

the defendant is a parent, brother or sister or a person

formerly in loco parentis to the plaintiff's spouse, are

hereby abolished: Provided, however, that this section

ta

Memorandum & Order, Nov. 30, 1984

shall not apply to causes of action which have hereto-

fore accrued. 1935, June 22 P.L. 450, Sec. 1; 1937,

June 25 P.L. 2317, Sec. 1.

It is clear that defendant Conti does not fall within the

class of people excepted from Section 170. Consequently,

the plaintiff may not maintain a cause of action for aliena-

tion of affections against Conti. >

Notwithstanding the status of the above mentioned

torts, the plaintiff contends that his action is properly

grounded upon Sec. 684 of the Restatement (Second) of

Torts, which establishes a cause of action for “causing one

spouse to separate from or refuse to return to the other

spouse.” Plaintiff asserts that this tort, separate and distinct

from criminal conversation or alienation of affections, was

expressly adopted by the Pennsylvania Courts in the case

of Acchione v. Acchione, 376 Pa. 36, 101 A.2d 642 (1954).

We disagree.

Acchione was clearly a suit for alienation of affections.

The first sentence of the case reads. “This is an action in

trespass for alienation of affections accusing the separation

of plaintiffs husband from plaintiff.” Acchione at 37, 643.

Although the Acchione Court did make a general reference

to several sections of the Restatement, including Sec. 684,

it did not rely upon that section as a theory of recovery

separate and distinct from alienation of affections as set out

in the Restatement (Second) of Torts, Sec. 683. We are un-

aware of any Pennsylvania appellate jurisdiction which has

either sustained a cause of action based upon Section 684

or distinguished that section from Section 683. As such we

feel that by abolishing the tort of alienation of affections,

the legislature effectively precluded all actions based upon

either Section 683 or Section 684 of the Restatement (Sec-

ond) of Torts.

|

I

5a

Memorandum & Order, Nov. 30, 1984

Although not apparent from the complaint, the plain-

tiff now apparently urges the Court to create a new

common-law cause of action based upon “conduct unbe-

coming a police officer.” That request must be denied.

Because we have ruled in favor of defendant Conti's

motion for demurrer, we need not address the remaining

preliminary objections.

For the foregoing reasons, the following Order is en-

tered.

IN THE COURT OF COMMON PLEAS OF BEAVER

COUNTY PENNSYLVANIA

CIVIL ACTION—LAW

No. 2614 of 1981

JOHN JOSEPH GRABNER, III,

Plaintiff,

VS.

LAWRENCE CONTI and ANTELINE PENDEL,

Defendants.

CIVIL ACTION—EQUITY

No. 2613 of 1981

JOHN JOSEPH GRABNER, IIL

Plaintiff,

VS.

LAWRENCE CONTI and ANTELINE PENDEL,

Defendants.

ORDER

Reed, J. November 30, 1984

6a

Memorandum ¢& Order, Now. 30, 1984

NOW, this 30th day of November, 1984, defendant

Conti’ preliminary objection in the nature of a demurrer

is hereby Sustained. The plaintiff's complaints against

Lawrence Conti in trespass at No. 2614 of 1981, and in

equity at No. 2613 of 1981, are hereby Dismissed.

BY THE COURT

s/Robert C. Reed

Ta

Order, Dec. 20, 1985

SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH DISTRICT

Nos. 44, 45, 223 Pittsburgh 1985

JOHN JOSEPH GRABNER, III,

Appellant

VS.

LAWRENCE CONTI AND ANTELINE PENDEL

ORDER

AND NOW, this 20th day of December, 1985, it is or-

dered as follows:

—_X___ Order affirmed.

Order reversed.

Judgment affirmed.

Judgment of Sentence affirmed.

Judgment of Sentence reversed.

Order vacated and lower court directed to pro-

ceed in accordance with opinion filed here-

with.

Order modified as set forth in opinion filed

herewith.

Costs to be taxed as provided by Chapter 27 of

the Pa. R.A.P.

Costs to be taxed as provided in opinion filed

herewith.

Appeal quashed.

BY THE COURT

s/Eleanor R. Valecko

DEPUTY PROTHONOTARY

8a

Appeal

J. 68013/85

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 44 Pittsburgh 1985

No. 45 Pittsburgh 1985

No. 223 Pittsburgh 1985

JOHN JOSEPH GRABNER, III

Appellant

Vv

LAWRENCE CONTI and ANTELINE PENDEL

Appeal from Order of the Court of Common Pleas of Bea-

ver County, Civil at No. 2613 of 1981 and No. 2614 of 1981

PANEL CASE

BEFORE: SPAETH, P.J., BROSKY and ROWLEY, JJ.

PER CURIAM: FILED: DECEMBER 20, 1985

Affirmed.

J. 68013/85—1

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 44 Pittsburgh 1985

No. 45 Pittsburgh 1985

No. 223 Pittsburgh 1985

JOHN JOSEPH GRABNER, III

Appellant

Vv

LAWRENCE CONTI and ANTELINE PENDEL

Appeal from Order of the Court of Common Pleas of Bea-

“ver County, Civil at No. 2613 of 1981 and No. 2614 of 1981

9a

Appeal

PANEL CASE

BEFORE: SPAETH, P.J., BROSKY and ROWLEY, JJ.

MEMORANDUM:

This is an appeal from orders sustaining preliminary

objections and dismissing two complaints (one in trespass,

the other in equity). The complaints allege that Lawrence

Conti, with the aid of appellant's sister-in-law, Anteline

Perdel, disrupted appellant's marriage. Appellant argues

that his complaints allege facts sufficient to state causes of

action for causing spousal separation, infliction of emotion-

al distress, and illegal police conduct. Appellant also

argues that the trial court improperly dismissed his

complaints against Pendel for lack of service. We affirm.

The trial court's opinion adequately disposes of most

of appellant's arguments and we need add only two com-

ments. First, appellant's complaints do not state a cause of

action for infliction of emotional distress under the

Restatement of Torts (Second), §46, because they do not

allege in what way appellant suffered as a result of

appellees actions. Cf. Bartanus v. Lis., 332 Pa. Super. 48,

480 A.2d 1178 (1984). And second, while it appears that

Pendel was in fact served with a summons, see Brief for

Appellant at 22-23, this fact does not invalidate the trial

courts order dismissing the complaints, for the complaints

only briefly allege Pendel’s “cooperat[ion] with [Conti] in

his attempt to encourage wife to end her marriage with

[appellant] and to continue the involvement with him.”

Complaint in Equity, paragraph 7. As the torts of criminal

conversation and alienation of affections have been

abolished in Pennsylvania, see Fadgen v. Lenkner, 469 Pa.

272, 365 A.2d 147 (1976); Bartanus v. Lis, supra, this alle-

gation of “cooperat[ion]” cannot sustain a cause of action.

Affirmed.

10a

Application for Reargument

SUPERIOR COURT OF PENNSYLVANIA

PITTSBURGH DISTRICT

APPEALS FROM ORDERS OF JUDGE ROBERT C.

REED OF THE COURT OF COMMON PLEAS OF

BEAVER COUNTY, CIVIL DIVISION WHICH

ORDERS WERE ENTERED AT # 2614 OF 1981 AND

# 2613 OF 1981 ON NOVEMBER 30, 1984 AND JANU-

ARY 21, 1985

Nos. 44, 45, 223, 230 Pgh 85

JOHN JOSEPH GRABNER, III,

Appellant,

vs.

LAWRENCE CONTI and ANTELINE PENDEL,

Appellees.

APPLICATION FOR REARGUMENT

Filed on Behalf of

John J. Grabner, II

Counsel of Record

for this Party:

Allen N. Brunwasser, Esq.

Pa. LD. # 099

P. O. Box 22212

Pittsburgh, PA 15222

412-391-0329

I hereby certify the within to be a true and correct

copy of the original filed in this case.

/s/Allen N. Brunwasser

Attorney

—

Application for Reargument

TABLE OF CONTENTS

APPLICATION FOR REARGUMENT. .

POINT OF LAW OR FACT OVER-

LOOKED OR MISAPPREHENDED BY

Se ES 6G ea eee eS

DECEMBER 20, 1985 ORDER..... .

APPEAL FROM ORDER OF THE

COURT OF COMMON PLEAS OF

BEAVER COUNTY, CIVIL AT NO. 2613

OF 1981 AND NO. 2614 OF 1981.....

MEMORANDUM OF APPEAL FROM

ORDER OF THE COURT OF COM-

MON PLEAS OF BEAVER COUNTY,

CIVIL AT NO. 2613 OF 1981 AND NO.

EE SP kt eee

TABLE OF CITATIONS

Algonguin v. SNG, 1976, 426 US 548,

560, F.N.11, 96 S.Ct. 2295, 2302,

8 re rere eos Gs ey are

PAGE

10

11

PAGE

lla

[APP.

PAGE}

[10a]

[13a]

[19a]

[7a]

[8a]

[APP.

PAGE] -

[21a]

12a

Application for Reargument

Arena v. Luckenbach Steamship Co., }ac.,

1981, C.A.1, 279 F.2d 186, 188-9 ..... 8 [20a]

Baker v. Rangos, 1974, 229 Pa. Super.

203, ,@6AO0 606, GS. .......-. 5 [18a]

Barbet v. Edelstein, 1985, Pa. Super.

*» {> 4. Verve ee 3 [15a]

Barbet v. Edelstein, 1985, Pa. Super.

, 499 A.2d 1106, 1108-1109 ...... 4 [16a]

Bartanus v. Lis, 1984, Pa. Super. ;

— Ff ® fos Set Sere rear 5,6 [17a, =

19a

Boddie v. Conn., 1971, 401 US 371, 91 S.

oe & Seeeeeenr sry e. car 7 {20a}

Flavel v. Susuki Motors LTD., 1984,

Pa. Super. , 486 A.2d 498, 502 and

AS rr ne ere 5 [18a]

Gedders v. U.S., 1976, 96 S.Ct., 1330,

1336, F.N.3, 425 US 80,89, F.N.3.... 8 [20a] :

Ginsburg v. Stern, 1961, C.A.3, 295 F.2d

Pore er arts Fe 8 [20a]

Harkin v. Brundage, 1928, 276 US 36, 48

ee & . errr ss 8 [20a]

In the matter of the Disciplinary Pro-

ceeding of Phelps, 1981, C.A. 10, 637

ss §:. Fy eae Fe ae, oe 7 [20a]

Jefferies v. Hoffman, 1965, 207 A.2d 774,

f RR og 5 ©) Se ee 4 [16a]

Kremlow v. Time, Inc., 1976, 466 Pa. 189,

PE U0. « 6 aceite baa’ e058 4 {17a}

Otto v. American Mutual Insurance Co.,

1978, 482 Pa. 202, 393 A.2d 450...... 5 [18a]

13a

Application for Reargument

Siegle v. U.S. Steel Corp., 1982, 302 Pa.

404, 448A.2d1104.............. 5 [18a]

APPLICATION FOR REARGUMENT

TO THE HONORABLE, THE PRESIDENT JUDGE

AND THE ASSOCIATE JUDGES OF THE SUPERIOR

COURT OF PENNSYLVANIA:

Appellant, John Joseph Grabner, III, respectfully

represents:

1. That by envelope dated December 19, 1985, this

Court's Prothonotary mailed the attached “Per Curiam” or-

der and “Memorandum” opinion, both dated the day after

mailing,

2. The said order and opinion do not even list ap-

peal # 230 Pgh 85 which by a July 2, 1985 order of this

Court consolidated it with # 44, 45 and 223 Pgh 85 and

the argument notices do not list said # 230 Pgh 85 for ar-

gument.

POINTS OF LAW OR FACT OVERLOOKED OR MIS-

APPREHENDED BY THE COURT

3. The December 20, 1985 opinion does not ob-

serve that there are two separate actions filed—one for

money damages at # 2614 of 1981 and another for equita-

ble relief at # 2613 of 1981.

l4a

Application for Reargument

A. The Equity action is reproduced in the case

record at 5-a to 15-a.

B. The Trespass case is reproduced in the case

record at 16-a to 20-a.

C. The cases were carried as separate actions in

the Beaver County Prothonotary; see docket entries ;

reproduced at l-a to 4-a.

D. The November 30, 1984 opinion of Judge

Reed (Brief, pages 27 to 29) does not notice the differ-

ence in relief requested and treats both cases as tort-

damage cases instead of also addressing Grabners re-

quest for Equitable relief as presented at # 2613 of

1981.

He wrote no opinion in support of his January

21, 1985 order (Brief, Page 1).

(1) The Superior Court December 20,

1985 opinion does not notice that the equity case

claims different relief and also disposes of the en-

tire appeal as a tort matter.

(2) The Superior Court opinion merely

concludes “The trial court's opinion adequately

disposes of most of appellant's arguments and we

need add -only two comments’ which are about

insufficient pleading that was not a ground for

dismissal below and not briefed by appellant or

argued orally before the panel.

(3) Equitable power to stop Police Chief

Conti from beating and threatening Grabner's

wife plus other illegal conduct is specifically

addressed in Question II (Brief, Pages 15 to 16)

TT |

4.

15a

Application for Reargument

and was argued orally before the adjudication

panel.

(4) Failure to even notice this problem in

the opinion is, in Grabner'’s judgment, another

indication of what happens because of the Cen-

tral Legal Staff function in this Court which

problem is now pending in two different cases

filed by Appellant's Counsel in the Supreme

Court of Pennsylvania.

(5) Equity power has not been abolished or

restricted by any appeal court decision or statute

in this commonwealth so the issue of tort dam-

ages in re criminal conversation and/or alienation

of affections would not be a bar to the relief re-

quested in # 2613 of 1984.

(6) If Judge Reed (now President Judge)

did not write about the ‘above issues and the

Superior Court did not expand or express on his

views but relied on only what he said, Grabner

respectfully suggests a fair and reasonable person

could conclude this important to the community

peace problem was overlooked, misapprehended

or both.

When Judge Reed looked dehors the record to

make Grabner'’s complaint an alienation of affections and

criminal conversation case, he brought his conduct within

the prohibition of Barbet v. Edelstein, 1985, Pa. Super.

, 499 A.2d 1106 and the Superior Court panel has, by

affirming his action, done the same plus violated the rule

that one panel will not overrule another panel of this

Court; see Pa. R.A.P. 2543 (1) “Internal Operating Proce-

dures for the Superior Court’, II-2, (“A prior decision of a

16a

Application for Reargument

panel of the court may be overruled by a majority decision

of an En Banc Panel”); IV-4-(d).

A. Nothing in Grabners Equity or Trespass

complaints (5-a to 20-a) mentions criminal conversa-

tion or alienation of affections.

B. These issues were presented by Conti’ pre-

liminary objections in a demurrer (23-a to 24-a, 27-a)

and Pendel’s demurrer (alienation of affections only,

30-a, 34-a).

C. Judge Reed’s November 30, 1984 order in re

Conti and his supporting opinion (Brief, Pages 26 to

29) reached out to these preliminary objections and

genetically engineered them into what became muta-

ted complaints different from the those which

Grabner filed.

D. Judge Reed admitted (bi.ef, Page 27) this

was not “specifically pleaded” and then went on to

dismiss Grabners complaint as though it had been

pleaded.

E. The Superior Court by adopting the actions

of Judge Reed has compounded the error.

F. This issue should have been raised by Pa.

R.C.P. 1030 New Matter. Defendants’ failure to prop-

erly so proceed and Judge Reed's cooperation,

affirmed by this Court, has resulted in an affront to

the law as expressed in Barbet v. Edelstein, 1985,

Pa. Super. , 499 A.2d 1106, 1108-1109 which

requires reversal and remand; see also Jeffries v.

Hoffman, 1965, 207 A.2d 774, F.N.1, 417 Pa 1,

F.N.1 (“Where, as in this case, the rules of law are not

clear a court should be especially wary of granting

: 17a

Application for Reargument

judgment on the pleadings before the factual under-

pinnings are well defined’).

5. The Superior Court opinion improperly affirmed

Judge Reed by sua sponte raising pleading issues not con-

sidered by the Court below; (Kremlow v. Time, Inc., 1976,

466 Pa. 189, 352 A.2d 12) and by not allowing Grabner

leave to amend in the Superior Court or, by Superior

Court order, in the court below which right to amend

Grabner now requests,

A. When he dismissed the complaints, solely

on the demurrer, Judge Reed said (Opinion, Brief,

Page 29):

“Because we have ruled in favor of Defendant

Conti’ motion for a demurrer, we need not ad-

dress the remaining preliminary objections.”

“For the foregoing reasons, the following order is

entered”

B. Following orderly appeal procedure,

Grabner did not brief, present or argue the other

preliminary objections which included a motion for

more specific facts but did not say what facts were

missing, i.e., neither Defendant claimed prejudice

because the complaints “do not allege in what way

Appellant suffered as a result of Appellees’ actions” or

the insufficiency of the word “cooperation”, Bartanus

v. Lis, 1984, Pa. Super. , 480 A.2d 1178, 1186

(“there is no indication, however, that the trial court

considered whether the two year statute of limitations

barred an action for the intentional infliction of emo-

tional distress nor can we determine whether

Appellees advanced this argument in the court

below’).

18a

Application for Reargument

C. Grabner respectfully suggests his pleading

in the above aspect is sufficient as he is not required

to present trial evidence; Baker v. Rangos, 1974, 229

Pa. Super. 333, , 324 A.2d 498, 505 (opinion by

Judge, now President Judge, Spaeth «ho said, inter

alia, “Evidence from which such facts may be inferred

not only need not but should not be alleged”).

D. Since insufficient fact problems were not the

basis of Judge Reed's decision and, in fact, specifically

excluded as a reason, and since Grabner was given no

notice this Appeal Court would seize on a new issue

until he received its December 20, 1985 opinion, he

could not request leave to amend, but requests it

now; Siegle v. U.S. Steel Corp., 1982, 302 Pa. 404,

448 A.2d 1104 relying upon Otto v. American Mutual

Insurance Co., 1978, 492 Pa. 202, 393 A.2d 450 and

other Superior Court decisions; Flavel v. Susuki

Motors LTD., 1984, Pa. Super. , 486 A.2d 498,

502 and F.N.3.

E. Grabner’s amendment will allege specifically

how he was damaged plus the details of Pendel’s

“cooperation” and, if the Court directs, present the

factual material in a formal petition in this Court.

6. In addition, the issues raised in Grabners brief

have not been decided by this Court and they have also

been misapprehended.

A. Ifa husband cannot ask an Equity Court to

stop what Conti and Pendel did to him and his wife,

violent self help will follow.

B. Also, Bartanus, upon which the panel here

relied, concerned emotional distress as it applied to a

19a

Application for Reargument

parent suing his sister and her husband for turning his

child against him.

Alienation of affections was specifically excluded

as the foundation of the opinion so what was said in re

harboring and alienation plus its present posture in

Pennsylvania was pure dictum.

*C. In addition, Bartanus, supports Grabner’s

argument his case should not be dismissed “as a mat-

ter of law” (480 A.2d at 1186) and insufficient pleading

(480 A.2d at 1182).

REASONS FOR ALLOWING REARGUMENT

7. Grabner respectfully suggests the adjudication

panel did not address the issues briefed on appeal,

overruled a decision of another panel, raised a new issue

not considered by the lower court not raised by Appellant

nor argued orally before the Panel so that reargument or

/and amendment should be allowed.

A. Grabner also respectfully suggests his ap-

peal raises important issues of significant impact

which should not be ignored by the procedures

followed in this case.

B. To specifically raise them here would result

in verbatim duplication of his appeal brief and go be-

yond the number of pages allowed by Pa. R.A.P. 2544

(c).

So, the Court is asked to examine the brief and

reproduced record before decision.

20a

Application for Reargument

C. Grabner respectfully objects to the casual

manner in which the false claim of no service is

brushed aside and the problem of Judge Reed's wife

representing his wife ignored (see 62-a to 77-a) espe-

cially when now President Judge Reed was host to the

adjudication panel, sat with them before arguments

began, welcomed them from that location and a for-

mer Beaver County Judge sat on the panel.

(1) Grabners Counsel realizes mention of

this type of problem is usually counterproduct-

ive, but he asks the Court to examine

(2) In the Matter of the Disciplinary

Proceeding of Phelps, 1981, C.A. 10, 637 F.2d

171 (lawyers written representations to Court

must be first hand and are examined objectively

not on subjective basis of what lawyer believed)

and

(3) Boddie v. Conn., 1971, 401 US 371, 91

S.Ct. 780, 788 and

(4) Ginsburg v. Stern, 1961, C.A.3, 295

F.2d 698 and

(5) Gedders v. U.S., 1976, 96 S.Ct. 1330,

1336, F.N.3, 425 US 80, 89, F.N.3 and

(6) Arena v. Luckenbach Steamship Co.,

Inc., 1981, C.A.1, 279 F.2d 186, 188-9 (creation

of false issues) and

(7) Harkin v. Brundage, 1928, 276 US 36,

48 S.Ct. 268, 275 (“the court must rely on coun-

sel to inform it of the facts’).

WHEREFORE, Appellant respectfully requests:

2la

Application for Reargument

A. Reargument en banc.

B. The right to amend.

C. Removal of adjudication panel opinion refer-

ence to deficient pleading as Appellees filed no cross

appeal and should not receive more here than they

did in the lower court; Algonguin v. SNG, Inc., 1976,

426 US 548, 560, F.N.11, 96 S. Ct. 2295, 2302,

F.N.11.

Respectfully submitted,

s/Allen N. Brunwasser

Attorney for Appellant

22a

Order, Feb. 14, 1986

The Superior Court of Pennsplvania

Sitting at Pittsburgh

J. Haniel Henry 1100 Allegheny Building

Prothonotary Pittsburgh, PA.

Eleanor R. Valecko 15219

Deputy Prothonotary (412) 565-7592

February 14, 1986

Allen Brunwasser, Esq.

Gateway Towers

P. O. Box 22212

Pittsburgh, Pa. 15222

In Re: John Joseph Grabner, III, Aplnt. v. Lawrence Conti

and Anteline Pendel

Nos. 44, 45 223 and 230 Pittsburgh, 1985

Dear Mr. Brunwasser:

The Court has entered the following order on your ap-

plication for reargument filed in the above-captioned

matters:

ORDER OF COURT

“AND NOW, this 14th day of February, 1986, Appel-

lants Application for Reargument is DENIED. The

captions of the Memorandum and Per Curiam Order filed

December 20, 1985 are hereby amended to include docket

number 230 Pittsburgh, 1985.

Per Curiam”

Very truly yours,

s/Eleanor R. Valecko

DEPUTY PROTHONOTARY

ERV:bn!

ce: Charles D. Bowers, Jr., Esq.

Roberta C. Higley, Esq.

Hon. Robert Reed

Affidavit at No. 2613

P # 239A1982 2613 of 1981

JOHN GRABNER

Form 96 Sheriff

500 D

The Commonwealth

of Pennsylvania

ALLEGHENY COUNTY

Personally appeared before me Paul Hoyson a Deputy

for Sheriff of Allegheny County, Pennsylvania, who being

duly sworn according to law deposed and says that on the

19th day of December 1981 he served Anteline Pendel at

11:39 AM at No. 200 Block of Bendix Dr. Street,

Corapolis, Allegheny County, Pennsylvania, with a true

and attested copy of the within writ Summons in Equity

by handing the same to and leaving with her personally

and making known to her the contents thereof.

COSTS: $18.50 s/Sgt. Paul Hoyson

Deputy Sheriff,

Allegheny County,

Pennsylvania

SS.:

Sworn and subscribed to before

me this

day of , 19

So Answers

s/Eugene L. Coon

Sheriff, Allegheny County,

Pennsyivania

24a

Affidavit at No. 2614

P # 240A1982 2614 of 1981

JOHN J. GRABNER

Form 96 Sheriff

500 D

The Commonwealth

of Pennsylvania "

ALLEGHENY COUNTY **’

Personally appeared before me Paul Hoyson a Deputy

for Sheriff of Allegheny County, Pennsylvania, who being

duly sworn according to law deposed and says that on the

19th day of December 1981 he served Anteline Pendel at

11:39 AM at No. 200 Block of Bendix Dr. Street,

Corapolis, Allegheny County, Pennsylvania, with a true

and attested copy of the within writ Summons in Trespass

by handing the same to and leaving with her personally

and making known to her the contents thereof.

COSTS: $18.50 s/Sgt. Paul Hoyson

Deputy Sheriff,

Allegheny County,

Pennsylvania

Sworn and subscribed to before

me this

day of , 19

So Answers

s/Eugene L. Coon

Sheriff, Allegheny County,

Pennsylvania

Order, Dec. 30, 1986

The Supreme Court of Pennsplvania

Western District

Prothonotary 801 City-County Building

Irma T. Gardner Pittsburgh, PA

Deputy Prothonotary 15219

(412) 565-2816

January 5, 1987

Allen N. Brunwasser, Esquire

P. O. Box 22212

Pittsburgh, Pa. 15222

In Re: John Joseph Grabner III v. Lawrence Conti and

Anteline Pendel

No. 129 W. D. Allocacur Docket 1986

Dear Mr. Brunwasser:

The Court has entered the following Order on your

Petition for Allowance of Appeal in the above matter:

“12/30/86

Denied

Per Curiam”

Very truly yours,

s/Irma T. Gardner

DEPUTY PROTHONOTARY

ITG:cho

ce: Charles Bowers, Jr., Esq.

Roberta C. Higley, Esq.

Hon. Robert C. Reed

Complaint at No. 2613

IN THE COURT OF COMMON PLEAS OF BEAVER

COUNTY, PENNSYLVANIA

JOHN JOSEPH GRABNER, III, Plaintiff

vs.

LAWRENCE CONTI and ANTELINE PENDEL, Defen-

dants

CIVIL DIVISION

No. 2613 of 198i—in Equity

COMPLAINT IN EQUITY

Code

Filed on behalf of Plaintiff

Counsel of Record for this party:

Allen N. Brunwasser, Esq.

Pa. LD. # 099

903-B Grant Building

Pittsburgh, PA 15219

(412) 391-0728

CERTIFED TRUE AND CORRECT COPY

Attorney for Plaintiff

NOTICE TO DEFEND

You have been sued in court. If you wish to defend

against the claims set forth in the following pages, you

must take action within twenty (20) days after this com-

plaint and notice are served, by entering a written appear-

ance personally or by attorney and filing in writing with

the court your defenses or objections to the claims set

27a

Complaint at No. 2613

forth against you. You are warned that if you fail to do so .

the case may proceed without you and a judgment may be

entered against you by the court without further notice for

any money claimed in the complaint or for any claim or

relief requested by the plaintiff. You may lose money or

property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR

LAWYER AT ONCE. IF YOU DO NOT HAVE OR

KNOW A LAWYER, THEN YOU SHOULD GO TO OR

TELEPHONE THE OFFICE SET FORTH BELOW TO

FIND OUT WHERE YOU CAN GET LEGAL HELP.

LAWYER REFERRAL SERVICE—

The Allegheny County Bar Association

920 City-County Building

Pittsburgh, Pennsylvania 15219

Telephone: 412-261-0518

COMPLAINT IN EQUITY

1. Plaintiff is a resident of the County of Beaver and

the legally married husband of Cecelia Ann Grabner

(wife).

2. Lawrence Conti (the Chief) is a resident of the

County of Beaver and also the duly appointed Police Chief

of Monaca Borough.

3. Anteline Pendel (sister) is a resident of Beaver

County and the sister of wife.

4. Plaintiff and wife were married on August 7, 1981

in Hawaii.

Complaint at No. 2613

5. The Chief knew of this marriage shortly after its

consummation and also knew plaintiff was the husband.

6. Beginning from the time plaintiff and wife

returned from Hawaii to the marital home in Beaver, the

Chief began a cause of conduct both intended to satisfy his

own amorous and sexual desires with wife and to break up

the said marriage, some of which conduct is described as

follows:

A. About three wecks after the return, he visit-

ed wife at the home of her mother, talked to her,

touched her physically, put his hands on her shoulders

and his arms around her waist, asked her to do the

same to him and said he still cared and could not be-

lieve she was married.

B. Shortly thereafter he appeared at the St.

Anthonys Club in Midland and invited her to go to

sisters house for a 2:30 A.M. breakfast when he knew

she was married and living with plaintiff.

C. At that time. the Chief told her he still cared

and hugged and squeezed her, held her hand and put

his arms around her.

D. About a week later, the Chief showed up at

wife's mother's house with sister when he knew plain-

tiff would be there and embarrassed her before her

niece, nephew and the family.

E. On August 27, 1981 wife called the Chief to

ask him to let her alone, especially because plaintiff

objected, but he refused.

F The Chief admitted to wife that he had given

his ex-wife severe beatings including breaking one's

6 mmetve,

Rie ene cacthingensth GY Ub ements:

29a

Complaint at No. 2613

arm as a warning in re how violent he could become if

he did not get his own way.

G. In about a week after the above phone call,

the Chief came to see wife again at sisters home at

which time he criticized plaintiffs conduct toward

wife.

H. At that time and place, the Chief held wife's

hand and put his arm around her and suggested an

attorney, Mr. Martucci, so she could get a divorce and

told her how to get to the attorney's office.

I. When wife went to the office of Attorney

Martucci, Attorney Joe Budicak, who is in Mr.

Martuccis office, was there to take the divorce case

and the Chief gave him high recommendation.

J. While wife was still married to plaintiff, the

Chief had sexual relations with her, which conduct

began sometime shortly after Halloween, 1981, and

continued mostly at his house.

K. The Chief became very unpleasant when

wife tried to break off the above described relation-

ship and beat her severely to show his displeasure and

get her to change her mind; and one time at the

Policeman’ Ball in Philadelphia for merely talking to

another man and his female companion,

(1) he pulled her up the steps to the room

which they both had occupied and had sexual in-

tercourse; and

(2) slapped her face hard to hurt her; and

(3) knocked her over the bed; and

(4) bounced her off the walls; and

30a

Complaint at No. 2613

(5) hit her head against the door so hard

that a large lump developed; and

(6) bruised her chin and cheeks with his

fists; and

(7) beat and bruised her all over her body;

and

(8) told her “Maybe that will teach you a

lesson”; and

(9) told her she belonged to him as his

“personal property’; and

(10) ripped up a phone number which she

wanted to call to escape him and said she was not

leaving; and

(11) imprisoned her in the said room under

threat of another beating like the one described

above which lasted about 15 minutes; and

(12) at all times described in re the beat-

ing, the Chief was on official duty and his ex-

penses at the Marriot Hotel, City Line, Philadel-

phia, Pennsylvania paid by his employer, Monaca

Borough; and

(13) when the Chief was pounding wife's

head, he knew she had a tumor in it; and

(14) when wife said she wanted to join her

minor daughter in Reading, Pennsylvania and

return home to Beaver with her, the Chief re-

fused to let her do so and indicated she would

receive another beating if she tried; and

3la

Complaint at No. 2613

(15) wife was afraid to leave both because

of the above beating and the Chief's bragging

about giving his other women beatings.

L. The Chief was both possessive, jealous and

bad tempered.

M. He admitted to wife that while a Monaca

policeman, he had beaten both his former wives plus

his live-in maid, Janice, with whom he also had sexual

relations, and required her to “help out with the

house payment from her earnings.”

N. Also, the Chief's daughter told wife she too

had received beatings from the Chief.

O. When wife went to a December 6, 1983

deposition in this case, the Chief wanted her to get

his lawyer to represent her.

P. The Chief ignored plaintiffs request to let

his wife alone, which request was made in August

1981.

Q. The Chief gave wife legal advice and also

suggested a lawyer to do the same thing.

R. The Chief attempted to break up plaintiff's

marriage and told her not to wear her wedding ring.

S. The Chief constantly made wife account for

her time.

T. The Chief stayed overnight at wifes home

and made love to wife while her 16 year old minor

daughter was also there.

U. When wife stayed overnight at the Chief's

home, he knew her 16 year old daughter would be

32a

Complaint at No. 2613

home alone and that what he did was the crime of

contributing to a minors delinquency.

V. The Chief forced wife to clean his home,

shop and cook for him, all without pay when he knew

this work, in addition to her other obligations was

driving her to physical exhaustion which might cause

her to become ill.

W. In the winter of 1982, the Chief gave wife a

severe beating after trying to force himself, against

her desires, into her home. At that time, he also dam-

aged her clothes and jewelry and only stopped when a

neighbor told him she was going to call the Beaver

police, all of which prevented him from forcing wife

into her house where he was so he could beat her.

The Chief finally left wifes house after she entered

and ran upstairs to escape him and only because the

neighbor promised to call said Beaver police.

X. Chief also beat wife at the Baden V.I.D. by

giving her a “stooge” in the face under the nose be-

cause she was talking to a doctor and then warned her

never to talk to any man if he was not there to listen.

Y. The Chief also made wife pregnant when he

knew this plus her tumor could endanger her health

by refusing to use or let her use anything to prevent

it.

Z. Chief then forced wife to continue sex

against her desires and without protection against

pregnancy.

Al. Chief insisted on having sex with wife after

her abortion and before he knew it was allowed.

33a

Complaint at No. 2613

Bl. As a result and to protect herself, wife had

her tubes tied, as a result of which she and plaintiff

cant have any children, even though plaintiff wants

children.

Cl. One reason wife had her tubes tied is that

the Chief said he wanted to have a baby with her.

Dl. The Chief embarrassed wife by announc-

ing in public that she was pregnant.

El. When wife would fall asleep, Chief would

wake her up even though he knew she had to go to

work that morning.

Fl. The above conduct has caused wife to fear

the Chief which he wanted so she would do as he

said.

Gl. The Chief drove slowly in front of a friend's

house where wife was a visitor in order to show his

displeasure that she was there.

Hl. The Chief entered wifes house when she

was absent and took back all the gifts he had given

her and as punishment for visiting, supra, and again

after he saw her with a fellow female employee he

took what he had left the first time.

Il. Chief called wife a slut in public.

Jl. The Chief, at 5:00 A.M. on August 6, 1983

in the morning removed a flower bed and table he

had given her from her lawn.

Kl. On the morning when the Chief took the

flower bed and table, he ran his truck across wifes

lawn to create furrows.

Complaint at No. 2613

Ll. Wife feared that if she was home, Chief

would have given her another beating.

Ml. When wife told the Chief she was ending

the relationship, he wished her bad luck and punish-

ment in order to frighten her into continuing the rela-

tionship.

Nl. The Chief insisted wife return to her house

in a Beaver police car and return the presents, wed-

ding dress and ring to plaintiff, all before the mar-

riage.

Ol. The Chief asked wife not to be deposed.

Pl. The Chief sold a microwave oven plaintiff's

parents gave as a wedding gift and kept the money.

Ql. The Chief physically abused wife when she

refused to go with him to Las Vegas where he had

been a bouncer, and locked her in the basement of his

mothers home in order to try to have her change her

mind.

7. Sister cooperated with the Chief in his attempt to

encourage wife to end her marriage with plaintiff and to

continue the involvement with him.

8. All of the above is not only conduct unbecoming a

police officer but a nuisance and a continuous trespass.

9. Plaintiff is fearful the Chief will continue his con-

duct in furtherance of his desire to end plaintiff's marriage

and begin again his relationship with wife.

10. The Chief has also made threats to plaintiff and

plaintiff is afraid he will carry them out.

35a

Complaint at No. 2613

11. Plaintiff wants the Court to protect him and his

wife and his marriage against defendants’ improper con-

duct.

12. Plaintiff has no adequate remedy at law and is,

and will continue to be, irreparably damaged and damaged

emotionally.

WHEREFORE, plaintiff requests:

A. That defendants appear and answer this

Complaint.

B. A preliminary and permanent injunction

ordering defendants to stop what has been described

above and to let wife and him alone.

C. Other proper relief which the Court believes

should be granted after hearing.

s/Allen N. Brunwasser

Attorney for Plaintiff

I, John Joseph Grabner, III, state that I signed this

affidavit under penalties of 18 Pa. C.S.A. 4904, and the

facts are true and correct.

sJohn Joseph Grabner, III

asa

Complaint at No. 2614

IN THE COURT OF COMMON PLEAS OF BEAVER

COUNTY, PENNSYLVANIA

JOHN JOSEPH GRABNER, III

Plaintiff

VS.

LAWRENCE CONTI and ANTELINE PENDEL

Defendants

CIVIL DIVISION

No. 2614 of 1981—in Trespass

COMPLAINT IN TRESPASS

Code

Filed on behalf of Plaintiff

Counsel of Record for this party:

Allen N. Brunwasser, Esq.

Pa. I.D. # 099

903-B Grant Building

Pittsburgh, PA 15219

(412) 391-0728

CERTIFIED TRUE AND CORRECT COPY

Attorney for Plaintiff

NOTICE TO DEFEND

You have been sued in court. If you wish to defend

against the claims set forth in the following pages, you

must take action within twenty (20) days after this com-

plaint and notice are served, by entering a written appear-

ance personally or by attorney and filing in writing with

37a

Complaint at No. 2614

the court your defenses or objections to the claims set

forth against you. You are warned that if you fail to do so

the case may proceed without you and a judgment may be

entered against you by the court without further notice for

any money claimed in the complaint or for any claim or

relief requested by the plaintiff. You may lose money or

property or,other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR

LAWYER AT ONCE. IF YOU DO NOT HAVE OR

KNOW A LAWYER THEN YOU SHOULD GO TO OR

TELEPHONE THE OFFICE SET FORTH BELOW TO

FIND OUT WHERE’ YOU CAN GET LEGAL HELP.

LAWYER REFERRAL SERVICE—

The Allegheny County Bar Association

920 City-County Building

Pittsburgh, Pennsylvania 15219

Telephone: 412-261-0518

COMPLAINT IN TRESPASS

1. All allegations of the Complaint in Equity except

the Wherefore clause are incorporated into this Com-

plaint.

2. Plaintiff demands damages for:

A. Defendants conduct to break up his home.

B. Defendants conduct dangerous to his wife

who he is required and/or privileged to protect by law.

C. The emotional distress caused to him and his

wife by defendants’ conduct.

Complaint at No. 2614

D. The Court is also asked to create a common

law cause of action for violation of Chief Conti's obliga-

tion to conduct himself properly as a policeman with-

in the guidelines of Faust v. Police C.S.C. of Borough

of State College, i975, 22 Comth. Ct. 123, 347 A.2d

765 and Fabio v. C.S.C. of Phila., 1980, Pa. .

414 A.2d 82.

3. Plaintiff is damaged in excess of the arbitration

limits of this Court.

4. Plaintiff requests punitive damages because of th«

outrageous conduct described in the Equity Complaint

now incorporated into this Complaint.

s/Allen N. Brunwasser

Attorney for Plaintiff

I, John Joseph Grabner, III state that I signed this

affidavit under penalties of 18 Pa. C.S.A. 4904, and the

facts are true and correct.

sJohn Joseph Grabner, III