# Petition for Writ of Certiorari — Stirone v. Hurtt

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0553%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1965
- **Citation:** 381 U.S. 925

## Text

cee, otisce-Supreme Court, US.
Sin Oser p« FILED

APR 14 1965

JOHN F. DAVIS, CLERK

IN THE ™

Supreme Court of the United States

October Term, 1964

No. 10 6 5

W. C. HURTT, Trustee in Bankruptcy of the Estate of
William G. Rider, Individually and trading as Rider
Supply Company and as Rider Construction Company,
Bankrupt,

vs.

NICHOLAS A. STIRONE,
Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA,
WESTERN DISTRICT

LLOYD F. ENGLE, JR.,
1312 Frick Building,
Pittsburgh, Pa. 15219,

Attorney for Petitioner.

BATAVIA TIMES, APPELLATE COURT PRINTERS, aE.
EDWARD W. SHANNOM, REPRESCNTATIVE,
SO22 CARLYN ORIVE, PITTSBURGH 36, PA 681.7463

INDEX.

Se ee Se BS ee ee eS Oke Ook eC eR ee Cee Be ee ®

7 ©3432) 4.68 OS. 6.8 £6 € EGS OCOD Oe OS Oe OR

Questions Presented for Review ....................
Provisions of Law Involved ........................
Rt ea ee

Arguments and Reasons Why the Writ Should be
MOND Cie cede ts tet has 6 os a eck vice

Point I. Petitioner was deprived of his right to
trial by jury when the Trial Judge gav. conclusive
effect to his record of prior criminal conviction
and directed verdict for Plaintiff ................

Point Il. Petitioner was deprived of his property
without due process of law when the Trial Judge
treated Petitioner’s record of prior criminal con-
viction as conclusive evidence of Petitioner’s li-
cies ET ELE EE EEUU SE Ly Petcare OE gee

Comerianin Mi MINOT ea cc cv cande
Appendix A:
Opinion of the Court, Eagan, Justice ............
Dissenting Opinion, Cohen, Justice ..............
Dissenting Opinion, Musmanno, Justice ..........

Letter dated Fe’: uary 19, 1965 from Deputy Pretho-
i are re a eae 5-5 & Gn od hv aie Koa

Appendix B:
Constitution of the United States:
pS BS | RR Ree One ane a
Pe re
Constitution of Pennsylvania:
I Eo ae ook a he oe eR

een NIN nc ct ee

“I

~

II.

TaBLe or Cases.
PAGE

Green Bay etc. Canal Co. vs. Patten Paper Co., 172
U. &. 66, 19S. Ce. 97, 48 L. id. O06 ...... 2... 15
Mineo vs. Eureka Security Fire and Marine Insurance
Company, 182 Pa. Superior Ct. 75; 125 Atlantic Re-
po ye Fs Be.) re ren 10,13
Pennsylvania Turnpike Commission vs. United States
Fidelity and Guaranty Company and James F. Tor-
rance, 412 Pa. Supreme Ct. 222; 194 Atlantic Re-

ports, 3d Series 423 (1963) ................. 10, 11,13
Ex Parte Peterson, 253 U. S. 300, 309, 310: 40 S. Ct.

Oe Eee eee eee 9
Smith vs. Times Publishing Co. (1896), 178 Pa. Su-

preme Ct. 481, 36 Atlantic Reports 296 ............ 8

Teslovich vs. Firemen’s Fund Fire Insurance Co., 110
Pa. Superior Ct. 245; 168 Atlantic Reports 354

CRE A paras tied cuNewade eo Cah eae MAGNCs vas eek ans 14
Wellitz vs. Thomas (1936), 122 Pa. Superior Ct. 438,

EGG Atiomise Moports Gis .w. wo cece ccecens 9
Wynkoop vy. Ceoe (1579) 89 Pa. Supreme Ct. 450... 8

STATUTES.

Section 1951, Title 18, United States Code = ......... 4
Supreme Court Rule 19, paragraph l(a) .......... 2
United States Code, Title 28, Seetion 1257(3) ...... 2

(‘ONSTITUTIONS.

Pennsylvania Constitution, Artiele 1, Seetion 6 ....2,3,8

United States Constitution :
te es ss onic baa ekckad 2,3, 4,9
pO A RS ee 3

IEE gs ce at eS 3

IN THE

Supreme Court of the United States

October Term, 1964
ERR

W. C. HURTT, Trustee in Bankruptcy of the Estate of
Willia'e G. Rider, Individually and trading as Rider
Supply Company and as Rider Construction Company,
Bankrupt, .

vs.

NICHOLAS A. STIRONE,

nm

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA,
WESTERN DISTRICT

Petitioner, Nicholas A. Stirone, prays that a Writ of
“‘ertiorari be granted to review the Judgment of the
Supreme Court of Pennsylvania, Western District, affirm-
ing the Judgment of the Court of Common Pleas of Alle-
gheny County, Pennsylvania, wherein conclusive effect was
given to Petitioner’s prior criminal conviction and verdict
directed in favor of Plaintiff.

Opinions Below

The Opinion of the Supreme Court of Pennsylvania and
the Dissenting Opinions of Justices Cohen and Musmanno,
copies of which are annexed hereto as Appendix A, the
same having been reported only in the advaneed publica-

tions of the Atlantic Reporter at 206 A. 2d 624 and not
in any volume of the official reports.

The Opinion of the Court of Commor. Pleas of Alle-
gheny County, Pennsylvania, which is contained in the
printed Record for the use of the Court below. A certified
copy of said Record accompanies this Petition and nine (9) .
extra copies are filed herewith. The said Opinion of the
Court of first instance is at page 269 et sey. thereof.

Basis of Jurisdiction
The Judgment of which review is sought is that of the
Supreme Court of Pennsylvania which was filed January
14, 1965 and the Orcer of the Supreme Court of Pennsyl-
vania denying reargument and filed February 16, 1965.
The said Order does not appear to have been included in
the Certified Record though requested in Petitioner’s No-
tice of Petition for Writ of Certiorari (See page 307 of
Certified Record). However, letter of the Deputy Pro-
thonotary of the Supreme Court of Pennsylvania, dated
February 19, 1965 quotes said Order and a copy thereof

is annexed hereto as part of Appendix -\.

The jurisdiction of your Honorable Court is invoked
pursuant to the provisions of the United States Code, Title
28, Seetion 1257 (3) and Supreme Court Rule 19, para-
graph 1 (a) for the reason that the Supreme Court of
Pennsylvania and the Court of Common Pleas have de-
prived Petitioner of his right to trial by jury, as guaran-
teed by the Seventh Amendment to the United States
Constitution and Article 1, Section 6 of the Pennsylvama
Constitution. Further, the said Courts have deprived
Petitioner of his property without due process of law in
violation of the guarantees of the Fourteenth Amendment
to the United States Constitution. The Trial Judge gave

conclusive effect to Petitioner’s prior criminal conviction
and directed a verdict for Plaintiff. This action was sanc-
tioned by the Supreme Court of Pennsylvania.

A federal question of substance is presented which here-
tofore has not been determined by your Honorable Court
and the decision of the Conrt below is probably not in
accord with applicable analogous decisions of your Honor-
able Court.

Questions Presented for Review

I. Was not Petitioner deprived of his right to a trial
by jury when the Trial Judge gave conclusive effect to his
record of prior criminal conviction and directed a verdict
for Plaintiff?

_ II. Was not Petitioner deprived of his property without

due process of law when the Trial Judge treated Peti-
tioner’s record of prior criminal conviction as conclusive
evidence of Petitioner's hability?

Provisions of Law Invoived

The provisions of the Constitutions of the United States
and Pennsylvania which are involved in this case are set
forth in Appendix B hereto in the following order: United
States Constitution, Amendment VII; United States Con-
stitution, Amendment XIV, Section 1; Pennsylvania Con-
stitution, Article 1, Section 6.

Statement of the Case

The action, in which the matter in question oceurred,
was brought by the Trustee in bankruptey in 1907 as an
action in assumpsit in the Trial Court, seeking to recover
certain monies from Petitioner. The Trustee alleged that
said monies were paid to Petitioner by Wilham G. Rider

+

as a result of threats by Petitioner that he would cause
Rider to lose a certain contract which he had allegedly
obtained with Ragnar Benson, Inc. to supply conerete for
the construction of a steel mill for Pittsburgh Steel Com-
pany in 1951 (Certified Record pages 4-9, 66, 67).

Petitioner, in answer to these allegations, set forth that
he had actually intereeded with Ragnar Benson, Inc., at
the request of Robert O. Dierker, President of Duquesne
Slag Company, to obtain the contract for Rider and that,
for this service, Rider agreed to pay Petitioner a commis-
sion of fifty (50) cents rer eubie yard of concrete supplied
(Certified Reeord pages 10-12). The allegations of Peti-
tioner were fuily substantiated, at trial, by Robert O.
Dierker and Jacob G. Kassab, the Vice President of Ragnar
Benson, Ine. (Certified Record pages 119-124, 152-136,
168-176). The meeting between Mr. Rider, Mr. Dierker
and Petitioner at the office of Duquesne Slag Company was
also corroborated by Catherine Perry (Certified Record
pages 156, 157). The commissions were paid to Petitioner
by check, at his insistance, and Petitioner made return and
paid income tax thereon (Certified Record pages 235, 240).

In 1955, Rider was placed in bankruptcy by petition ot
certain of his creditors, one of which was Duquesne Slag
Company (Certified Record pages 26, 96). During the
proceedings had therein, the records of Rider were avail-
able to various departments and bureaus of the United
States government and it ultimately appeared, from the
records of that proceeding, that the United States of
America had substantial claims against Rider.

Tn 1956, Petitioner was indicted and was tried in the
United States Distr:.t Court for the Western District of
Pennsrivania at Criminal No. 14871. The indictment
eharged that Petitioner had violated Section 1951, Title 1,

United States Code. After two trials and numerous ap-
peals, which consumed more than five years, the Peti-
tioner was convicted and sentenced to ten years imprison-
ment and a fine of $10,000.00. Proceedings have been in-
stituted on behalf of Petitioner, by uis present counsel, ia
the nature of Motion to Vacate Sentence which is presently
before your Honorable Court at No. 982, October Term
1964 on Petition for Writ of Certiorari, and in the nature
of Petition for Writ of Habeas Corpus which is presently
before the United States Court of Appeals for the Seventh
Cireuit at No. 14846. Petitioner was, at the time of trial in
the instant case, and presently is imprisoned at the Federal
Penitentiary at Terre Haute, Indiana and was brought
to Pittsburgh by and was in the eustody of a United States
Marsha! during the tris! before the Honorable Arthur
Wessel, .Jr. and a jury.

During the trial, in this case, Judge Wessel permitted
counsel for the Trustee to introduce into evidence a cer-
tified copy of Petitioner’s Indictment and Conviction, **not
as exelusive proof of this so-called duress, but as some evi-
denes tending toward that*’ (Certified Reeord pages 107-
112). Later in the trial, Judge Wessel also admitted the
same exhibit for purpose of impeaching the eredibility of
Petitioner (Certified Record page 251). Finally, as re-
flected only by the Charge of the Court, Judge Wesse!
characterized the previously admitted record as *‘coneln-
sive evidence of extortion of this money from Rider*’ and
required the jury to return a verdict ‘‘for the Plaintiff and
against the Defendant in the sum of not less that $31,274.15,
together with interest on that amoun® from January 1, 1954,
to date, at a rate not to exceed six per cent’’ (Certified
Record page 258). The jury returned a verdict for Plain-
tiff in the amount of $81,274.13, as directed by the Trial
Court plus 3% interest (total interest not to exceed

6

$7,505.79) for a total verdict of $38,779.92 (Certified Ree-
ord page 264).

After Motion for New Trial, made by Petitioner’s trial
counsel, and adverse decision thereon by the Trial Court,
present counscl perfected an appeal to the Supreme Court
of Pennsylvania at No. 219 March Term, 1964, which Court
affirmed the Trial Court in Opinion filed January 14, 1965
(Certified Record pages 291-297 and Appendix A of this
Petition). Justices Cohen and Musmanno filed separate
dissenting opinions (Certified Record pages 298-302 and
Appendix A of this Petition). The Petition for Reargu-
ment was denied by the Court below on February 16, 1965
(Certified Record pages 303-306 and Appendix A of this
Petition).

The violation of Petitioner’s rights guaranteed by the
Constitutions of the United States and Pennsylvania first
occurred during the trial by the offer and admission into
evidenee of the Reeord of prior eriminal conviction as
proof of duress and was excepted to by Petitioner’s trial
counsel (Certified Reeord pages 107-113). The second
occasicn arose upon the offer and admission into evidence
er the same exhibit to impeach Petitioner’s credibility and
was excepted to by Petiuoner’s trial counsel (Certified
Record pages 251, 252). Finally, after refusing the point
of counsel for the Trustee for binding instructions and
after several discussions off the record and at side bar,
the Trial Court, in its charge to the jury, gave conclusive
effect to the Record of criminal conviction and directed
the jury to return a verdict for Plaintiff (Certified Record
pages 253-260) and Petitioner's trial counsel excepted
thereto (Certified Record pages 253, 254, 256, 261). The
matter was again placed before the Trial Court by trial
counsel as points 1 and 5 of the Motion for New Trial
(Certified Record pages 265, 266). The error and effect of

my

the Trial Court in giving conclusive weight to the Reeord
of criminal conviction was again raised in the Supreme
Court of Pennsylvania in argument and in the Petition
for Reargument (Certified Record pages 303-306). The
decisions of both the Trial Court and the Supreme Court
of Pennsylvania dismissed these objections, apparently on
the basis that Petitioner had had his day in court and to
treat the Record of criminal conviction other than as con-
clusive would tend to destroy the confidence of the public
in the operation of the courts and would stir up litigation
(Certified Record pages 283, 284, 296, 297 and Appendix A
to this Petition).

ARGUMENTS AND REASONS WHY THE WRIT
SHOULD BE GRANTED

POINT I

Petitioner was deprived of his right to trial by jury when
the Trial Judge gave conclusive effect to his record of prior
criminal conviction and directed verdict for Plaintiff.

At the outset, it is understood that the Seventh Amend-
ment of the United States Constitution does not apply to
jury trials in state courts. However, in the instant ease,
the Trial Judge, in fact, substituted the determination of
a federal jury in the criminal trial of Petitioner for the
determination of the jury in the instant case pertaining to
the civil proceeding. On this basis, it is the contention
of Petitioner that a federal question exists.

Upon the trial of this case, an almost singular and total-
ly determinative issue of fact existed; to wit, did Peti-
tioner exact money from Mr. Rider under duress or did
Petitioner collect an agreed esmmission from Mr. Rider
for intereeding with Mr. Kassab, Vice President of Ragnar
Benson, Inc., thereby obtaining a desired contract for Mr.

8

Rider? The proofs and testimony offered on this issue
of fact, not the least of which was the testimony of Mr.
Kassab, overwhelmingly supported the contention of Peti-
tioner. However, the jury was never permitted to con-
sider that evidence or determine the fact.

The Constitution of the United States mandatorily re-
quires that the right to trial by jury shall be preserved in
suits at common law where the amount in controversy ex-
ceeds twenty dollars. That the amount in controversy in
the instant case exceeds more than one thousand times
twenty dollars cannot be doubted. That the instant case is
a suit at common law is estab’ished by the historical juris-
prudence of the Commonweaith of Pennsylvania whieh is
one of very few remaining common law states. This was,
simply, a suit brought on contract comprised in the im-
plied promise to pay money alleged to be unjustly held.

Article 1, Section 6 of the Pennsylvania Constitution
provides that ‘‘Trial by jury shall be as heretofore, and
the right thereof remain inviolate.’’ What had constituted
trial by jury ‘‘heretofore”’ is clearly set forth in Wynkoop
v. Cooch (1879), 89 Pa. Supreme Ct. 450. It is there stated
by Mr. Chief Justice Sharswood, speaking for the Court,
at page 451:

‘*The object of this provision (Pennsylvania Constitu-
tion, Article 1, Section 6) was to preserve the jury as
a tribunal for the decision of all questions of law and
fact in criminal trials; and of all questions of fact in
civil causes. Such it had been theretofore; and it was
ordained by the people that such i+ should continue to
be thereafter inviolate.’’

So also, in Smith vs. Times Pubishing Co. (1896), 178
Pa. Supreme (Ct. 481, 86 Atlantic Reports 296, it is stated
at page 408:

‘‘The provision of the constitution is that ‘trial by
jury shall be as heretofore, and the right thereof re-

9

main inviolate.’ The same or very similar language
is contained in the constitution of nearly every «tate,
and the uniform construction by judges and text
writers has been that the phrase ‘shall be as hereto-
fore’ refers to the method of trial itself and means that
it shall be preserved with its ‘substartial elements,
whiie the second phrase, ‘the right thereof shall re-
main inviolate’ refers to the right te a jury trial be-
fore the finul decision in all cases where it would have
existed at the time of the adoption of the constitution.’’

In the ease of Wellitz vs. Thomas (1936), 122 Pa. Super-
ior Ct. 438, 185 Atlantic Reports 864, it is stated at page
440:

‘‘By the sixth section of the Declaration of Rights,
it is provided that ‘trial by jury shall be as heretofore,
and the right thereof remain inviolate’; and its mean-
ing is that a jury shall continne to be the tribunal for
the determination of all questions of faet in contro.
versies between individuals and in actions and prosecu-
tions brought by the Commonwealth, its substantiai
feature being that the jury shall consist of twelve good
and lawful men, whose verdict must be unanimous:
Wynkoop v. Cooch, 89 Pa. 450; Smith v. Times Publish-
ing Co., 178 Pa. 481, 36 A. 296; Com. v. Collins, 268
Pa. 295, 110 A. 738.”’

That the Seventh Amendment to the Constitution of the
United States has an identical meaning is established in
Ex Parte Peterson, 253 U.S. 300, 309, 310; 40 S. Ct. 543,
546; 64 L. Ed. 919. It is there stated by Mr. Justice
Brandeis, speaking for the Court:

‘“‘Fourth: The command of the Seventh Amendment
that ‘the right of trial by jury shall be preserved’ does
not require that old forms of practice and procedure
be retained. Walker v. New Mexico & Southern Paci-
fic R. R. Co., 165 U. 8. 592, 596. Compare Twining v.
New Jersey, 211 U.S. 78, 101. It does not prohibit
the introduction of new methods for determining what
facts are actually in issue, nor does it prohibit the in-
troduction of new rules of evidence. Changes in these

10

may be made. New devices may be used to adapt the
ancient institution to present needs and to make of it
an efficient instrument in the administration of justice.’
Indeed, such changes are essential to the preservation
of the right. The limitation imposed by the Amend-
ment is merely that enjoyment of the right of trial by
jury be not obstructed, and that the ultimate determi-
nation of issues of fact by the jury be not interfered
with.”’ Ks
The Trial Court, in the instant case, deprived Petitioner
of his right to trial by jury as effectively as though there
had never been a jury selected or no evidence adduced for
its consideration. The singular, determinative issue of
fact was dogmatically taken away from the jury and the
body of the jury became a pure mechanical apparatus for
the sole purpose of recording, on a verdict slip, that which
the Trial Judge had directed it to do.

The Court below and the Trial Court relied most heavily
upon the cases of Mineo vs. Eureka Security Fire & Marine
Insurance Company, 182 Pa. Superior Ct. 75; 125 Atlantic
Reports, 2d Series 612 (1956) and Pennsylvania Turnpike
Commission vs. United States Fidelity and Guaranty Com-
pany and James F. Torrance, 412 Pa. Supreme Ct. 222;
194 Atlantic Reports, 2d Series 423 (1965). That these
eases are distinguishable on the facts and were decided
within the narrow limits of their facts is clear from the
decisions. It is unimportant to this consideration whether
or not those decisions are wrong.

In the Mineo Case, supra, the plaintiff was the assignee
of wrongdoers who had been convicted of arson on the
very risk for which the assignee brought suit on the insur-
anee contract. The Court merely held that the assignee
stood in the position of the wrongdoers, was seeking the aid

= See ‘Trial by Jury and The Reform of Civil Procedure,’ by Prof. A. W.
Scott, 31 Harvard Law Keview, 669."

11

of the Court and it would not afford same. In the instant
case the Petitioner never sought the aid of the Trial Court.
It was no possible aid or benefit to him to be taken, in
custody, from prison, brought half way across the countr}
to suffer further insults before the public and in the press
from the very person whom he had been requested to and
had sought to assist, aad who, through his own inecompe-
tence, ineptness and business turpitude, brought himself
to a position before the United States Government where
he found it expedient and self-saving to blame Petitioner
for his shorteomings, failures and evasions.

In the Pennsylvania Turnpike Commission Case, supra,
plaintiff had pleaded the conviction of Torrance m the
complaint. The answer did not deny the fact of the con-
viction. A fortiori, it became an admission under the rules
of pleading. Ptaintiff then moved for judgment on the
pleadings which was denied by the lower Court. Upon
appeal, the Supreme Court of Pennsylvania uttered a great
deal of dicta regarding public policy but, nonetheless, sent
the case back to the lower Court for trial on certain factual
issues. The portion of that case which we relied upon is
authority for nothing, since it was not decisive and need
not have been said. It is important to note, however, that
the Supreme Court of Pennsylvania in that case was very
careful to limit its discussion to the particular cireum-
stances involved. In the instant case, the conviction of Pe-
titioner was not pleaded and never became a conclusive
determination of liability until the Trial Court, over objee-
tion, made it so by usurping the historical and unrelinquish-
ed function of the jury.

It is interesting to note that the instant case was filed
more than six years prior to trial. Present counsel for
Petitioner is not aware what occasioned this untoward

12

deluy but it is quite clear that, if the action of the Trial
Judge, in taking the very crux of the factual determination
away from the jury, is allowed to stand, the Petitioner has
been seriously prejudiced by this delay. At the time this
action should have come to trial, in the usual course, there
was no eonvietion of Petitioner.

Clearly, Plaintiff was permitted to offer as substantive
proof, which was treated as conclusive fact by the Trial
Judge, matter which was not pleaded and which Petitioner
had neither opportunity to answer nor defend against.
In fact, the Trial Judge has given Petitioner’s record of
indictment and eonviction exactly the same effect as an ad-
mission, whereas, it is extremely doubtful whether such
matter can be properly pleaded.

What would the Plaintiff and the Trial Court have done
if this ease had come on for trial, in the ordinary course,
at a time when there was no conviction? It is clear, from
the decisions, that the arrest and indictment could not
have been shown for any purpose. What, then, occurred
to open the door to Plaintiff and to permit the Trial Judge
to treat the matter in this manner? Another Court has
adjudicated a criminal case between different parties and
before a different jury. This has never been treated as
res judicata of the facts in issue in subsequent civil pro-
ceeding in any case where that matter was in issue.

In all of these areas the action of the Trial Court and
the Court below has deprived Petitioner of his property
without due process of law as well as depriving him of
his right to trial by jary.

15

POINT Il

Petitioner was deprived of his property without due
process of law when the Trial Judge treated Petitioner’s
record of prior criminal conviction as conclusive evidence
of Petitioner’s liability.

All of the Arguments and Reasons presented in Point I
are also pertinent herein and it is repectfully requested that
they he considered with relation to Point I.

The Fourteenth Amendment to the United States Con-
stitution states that no state shall deprive any person of
life, liberty or property, without due process of law; nor
deny to any person within its jurisdiction the equal protec-
tion of the laws.

Every trial lawyer knows, @s does every Court engaged
in the trial of both civil and criminal cases, that the defense
counsel in the trial of a eriminal case employs entirely dif-
ferent procedures from a civil case trial, and either limits
or extends the scope of interrogation and, in fact, the use
of witnesses according to certain basic and well established
rights. It is quite conceivable and, actually, usual that the
criminal defense lawyer will offer far less evidence than
will the civil trial lawyer on identical issues.

This of course, stems from tie aforesaid basic and well
established rights, many of which are provided by the Con-
stitutions of the United States and Pennsylvania. Certain-
ly, if the construction of the Mineo and Pennsylvania Turn-
pike Commission Cases, supra, which were suecessfully
urged upon the Trial Court and the Court below becomes
the law, these basic rights will have been effectively, though
perhaps cireuitously, abrogated. In effeet, it will amount
to stating to an accused in a criminal case, ‘* You need not
testify or even offer any evidence in your behalf under

i4

the protection of your constitutional privileges and statu-
tory guarantees but, if you don’t and you are convicted,
that conviction will be held to be res judicata in anv subse-
quent civil proceeding by or against you arising out of
this issue.’’ This is not due process of law.

It must also be noted, as set forth in the Statement of
the Case, that there are presently proceedings before your
Honorable Court and the Court of Appeals for the Seventh
Cireuit pertaining to the conviction of Petitioner. When is
a criminal defendant ‘‘constitutionally guilty’? and what
will be the status of the decision in the instant case if
Petitioner is declared not to be guilty? There were very
basic reasons for not confusing criminal and civil matters
and they should be preserved.

Interestingly, the Court below has seen fit to draw an
ill-defined distinction between crimes (Certified Record
pages 296, 297 and Appendix A of this Petition). It states,
in effect, that this newly conjured doctrine will not be
applicable to minor crimes. This is not equal protection
of the laws.

As mentioned in the same passage, at the above cited
pages, it is indeed interesting to compare the effect of a
plea of nolo contendere, as in the case of Teslevich vs.
Firemen’s Fund Fire Insurance Co., 110 Pa. Superior Ct.
245: 168 Aticentic Reports 354 (1933). In that case the
Court gave it no effect in the civil proceeding and the
crime involved was arson, a crime which, at common law.
ranked directly along side of murder.

Conclusion and Summary

Petitioner has been denied his right to trial by jury.
Petitioner has been deprived of his property without due

15

process of law. Petitioner has not been affored the equal
protection of the laws. Such administration of basic con-
stitutional rights and guarantees must not be permitted to
stand as the decided law of a land where constitutional
guarantees have so long been jealously protected.

Lest it be contended that the questions here were not
brought to the attention of the Court below with sufficient
specificity in all particulars, the language and reasoning of
Mr. Justice Shiras in the ease of Green Bay etc. Canal Co.
vs. Patten Paper Co., 172 U. 8. 58, 19 S. Ct. 97, 43 L. Ed.
364, is pertinent. It is there stated, at page 67:

‘‘But no particular form of words or phrases has
ever been declared necessary in which the claim of
Federal rights must be asserted.”’

Respectfully submitted,

LLOYD F. ENGEL, JR., ESQUIRE
1312 Frick Building,

Pittsburgh, Pennsylvania 15219,
Attorney for Petitioner.

16

APPENDIX A

Opinion of Supreme Court of Pennsylvania

IN THE

SUPREME COURT OF PENNSYLVANIA
WestTERN District

Nos. 219 and 225 March Term, 1964

in Bankruptey of the Estate of
and trading as RIDER
ONSTRUCTION

WwW. C. HURTT, Trustee
William G. Rider, Individually
SUPPLY COMPANY and as RIDER C
COMPANY, Bankrupt,

-

NICHOLAS A. STTRONE,

Appellant.
SAME,
Appellant,
¥.
SAME.

Appeals from the J udgment of the Court of Common Pleas
for the County of Allegheny at No. 3290
October Term, 1957.

No. 219: Entered, April 20, 1964.
No. 225: Entered, April 28, 1964.

Opinion Filed January 14. 1965.

EAGEN, J.
This case presents two appeals from a judgment entered
in the Court of Common Pleas of Allegheny County.

The factual background is as follows:

The plaintiff, Trustee in Bankruptcy of the Estate of
William G. Rider, individually and trading as Rider Supply
Company and Rider Construction Company, bankrupt,
brought this action in assumpsit in his capacity as trustee
to recover a sum of money paid by Rider to the defendant
as the result of extortionate threats.

Rider was engaged in construction work, and also in
the business of supplying building materials to general
contractors in western Pennsylvania. He became involved
with the defendant, a “labor leader” in the same area, dur-
ing the course of negotiations for the award of a sub-con-
tract to supply ready-mix concrete to a construction com-
pany, Ragnar Benson, Inc. (Ragnar), for incorporation
into 2 steel mill to be built by that company. Rider was
awarded this subeontract on a bid of $11.75 per cubic yard
of concrete delivered, and, pursuant thereto and to subse-
quent additions delivered in excess of 60,000 eubic vards
of concrete. Rider then paid $31,274.18 to the defendant,
ealeulated on the basis of $.50 per cubic vard of concrete
which Rider had delivered to Ragnar.

It is the recovery of this money that iene thee basis of
this action. Plaintiff's evidence established that the money
was paid to the defendant’ by Rider as the result of ex-
tortionate threats made by the defendant, to the effect that
unless Rider complied, the defendant, by virtue of his posi-
tion as labor leader, would cause Rider to lose the sub-
contract with Ragnar, and other business which the defend-
ant could influence. Defendant admitted receiving the
money, but denied making the alleged threats and asserted
that the payments were consideration for efforts on his part
to secure the Ragnar contract for Rider.

18

At the conclusion of the testimony, the trial court direct-
ed the jury to return a verdict in favor of the plaintiff in
the sum of $31,274.13, plus interest not to exceed 6% from
January 1, 1954. The jury returned a verdict in the total
sum of $38,779.92 ($31,274.13 plus interest not to exceed
$7505.79), which included the principal sum plus interest
at the rate of 3%.

The defendant filed a motion for a new trial based upon
alleged trial errors. The plaintiff filed a motion to mould
the verdict, contending that. under the circumstances, he
was entitled to recover interest at the rate of 6%. Both
motions were dismissed by the court en banc, and from the
judgment entered upon the verdict, both parties appealed.

DEFENDANT'S APPEAL (NO. 219)

As a result of the money payments involved herein, the
defendant was twice tried and convicted in the United
States District Court for the Western District of Pennsyl-
yania for violation of the Hobbs Anti-Raeketeering Act,
18 U.S. C. £1951: United States v. Stirone, 168 YT. Supp.
490 (W. D. Pa. 1957), aff'd 262 F. 2d 571 (3d Cir. 1958).
rev'd 361 U. S. 212 (1960); and, United States v. Stirone,
311 F. 2d 277 (3d Cir. 1962), cert. denied 372 U. S. 935
(1963). At the trial on the criminal indictment, similar
factual issues were involved and the defendant’s testimony
was the came as given in the trial of the present action.

At the instant trial. the record of the defendant's con-

19

of the criminal conviction was conclusive evidence of the
fact of the alleged extortion and, therefore, the plaintiff
was entitled to a directed verdict for the recovery of the
sums so paid. It is this ruling that is primarily questioned
here.

The question for determination, therefore, may be stat-
ed in this manner: In a civil suit against a convicted ex-
tortioner to recover the extorted money, is proof of the
conviction of the extortion conclusive evidence of the faet
of extortion?

Research discloses that decisions in other jurisdictions
reflect a marked disparity in result. See, IS A. L. R. 2d
1287. The majority of jurisdictions exclude the record of
the criminal conviction and rule that it has no probative
value for any purpose. See, 50 C. J. S. Judgments. ‘ 754
(b). However, the rationale is based more in history and
technicality than in logic. Moreover, there is a growing
tendeney to decide each ease upon its partieular facts, with
a view toward applying the exclusionary rule only where
reason and logie so demané. See, Eagle, car & British
Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S. E. 314
(1927). for a well reasonec discussion. See also, Schindler
v. Royal Ins. Co., 258 N. Y. 310, 179 N. E. 711 (1982): Lo-
cal 167, 1. B. of Teamsters v. United States, 21 U.8. 2s
(1934): and, Developments in the Law-Res Judicata, 65
Harv. L. Rev. SIS (1952).

In Pennsylvania, judgments in criminal cases for vears
were held inadmissible to establish the facts in a civil ease.
See, Estate of Edward D. Gartner, 94 Pa. Superior Ct. 45
(1928). and Commomrealth vc. Moran, 951 Pa. 477. 96 A.
1089 (1915). But the tendeney of recent decisions is away
from enforeing a rigid rule. See, Mineo vr. Eureka Secur-
itu Fire & Marine Ins. Co.. 182 Pa. Superior Ct. 75, 125 A.

20

2d 612 (1956), and Griefer’s Estate, 333 Pa. 278, 5 A. 2d
118 (1939).

Very recently this Court unanimously held’ in Pennsyl-
vania Turnpike Comm. v. United States Fidelity & Guar-
anty Co., supra, that a public servant and his surety bonds-
man were conclusively bound as to the fact of guilt, estab-
lished by the record of the individual’s pricr criminal con-
viction for criminal mishehavior in office introduced in a
civil action, involving the same facts and issues. The par-
allels of the present case to that case are striking. In
each ease, the record of conviction of the defendant was
offered by the plaintiff, in the civil action, to bar the de-
fendant from avoiding restitution, as opposed to the record
of conviction of the plaintiff, as was the situation in Mineo,
supra. So too, in each case the defendant was seeking to
avoid payment of a sum of money to the plaintiff by assert-
ing non-liability on the basis of the facts already establish-
ed to the contrary in prior criminal proceedings.

In Mineo, at page 86, the Court said, “We are of the
opinion that when one is convicted of a felony and subse-
quently attempts to benefit from the commission, the record
of his guilt should be a bar to his recovery.” We are equal-
ly of the opinion that when one has been convicted of a
felony, the result of which is of financial benefit to him,
the record of his guilt should bar his avoidance of restitu-
tion therefor. This was implicit in the ruling of the Penn-
sylvania Turnpike Commission ease, supra, and we now
directly so hold. In Mineo, the basic fact in issue was
whether or not the plaintiff’s assignor had started the fire;
in the Pennsylvania Turnpike Commission ease, it was
whether or not Torrance had violated the trust of his office ;

2 Mr. Justice Cohen did not participate in the consideration or decision of
the case.

here, it is whether or not the defendant extorted money
from Rider. The parallel is persuasive.

The same principles of public policy enunciated in Mineo,
supra, and Pennsylvania Turnpike Commission, supra, ap-
ply with equal foree to the present case. The defendant
was presented with more than ample opportunity to over-
come the charges lodged against him while he was swathed
in a cloak of presumed innocence. His case was twice pre-
sented to a federal jury which found him guilty of extortion
beyond a reasonable doubt, upon the same facts which are
now urged as the basis for his eivil liability. ‘To now hold
that the effect of those jury determinations is ni] not only
would be to fly in the face of reason, but also would be a
general indictment of the whole American jury system. We
are not now prepared to say that the mere technical effect
of the doctrines of res judicata and collateral estoppel re-
garding identity of parties is sufficient to overcome the pol-
icv which requires us to give conclusive effect to the prior
conviction herein. The defendant should not now be heard
to deny that which was established by his prior criminal
conviction, without proof that his conviction was procured
by fraud, perjury or some manner of error now sufficient
to upset the conviction itself. Defendant has had his day
in court and has failed to instill even a reasonable doubt
in the collective mind of his then jury. No valid reason
exists why he should be given a chance to try his luck with
another jury.

In so deciding, we recegnize a valid existing distinction
in cases involving the reeord of conviction of relatively
minor matters such as traffic violations, lesser misdemean-
ors, and matters of like import. Especially in traffie viola-
tions, expediency and convenience, rather than guilt, often

ecntrol the defendant's “trial technique.” In sueh eases, it

22

is not obvious that the defendant has taken advantage of
his day in court, and it would be unreasonable and unrealis-
tic to say he waived that right as to a matter (civil liabil-
ity), which was probably not within contemplation at the
time of the conviction. Compare also the effect given in
Pennsylvania to a plea of nolo contendere: Teslovicn v.
Firemen’s Fire Ins. Co., 110 Pa. Superior Ct. 245, 168 A.
394 (1933).

The policy shifts with regard to major criminal convic-
tions such as the one presented. We find it incredible in
such a situation that a defendant would present less than
his best defense, knowing that his failure would result in
the loss of substantial property, or even his liberty.’

PLAINTIFF’S APPEAL (NO. 225)

As above noted, the jury returned a verdict in favor of
the plaintiff for the principle sum, plus interest at the
rate of 3%. Plaintiff contends that, since the amount of
money invoived was not in dispute, he is entitled as a mat-
ter of law to receive interest at the legal rate of 6%, and
that the lower court erred in not moulding the verdict to
include this sum.

After careful consideration of the pertinent case law,
this court is equally divided on this question. Hence, the
determination of this issae by the lower court must stand.

Judgment affirmed.
Mr. Justice Musmanno filed a dissenting opinion.

Mr. Justice Cohen filed a dissenting opinion.
2 Ga October 16, 1961, Nicholas A. Stirone, defendant herein, was adjudged
to be guilty and sentenced to be imprisoned for a period of 10 years, and to
pay a fine of $10,000. upon the above-mentioned federal indictment for viola-
tion of 18 U. S. C. § 1951.

Dissenting Opinion of Justice Cohen
IN THE
SUPREME COURT OF PENNSYLVANIA

Western District

Nos. 219 and 225 March Term, 1964

W. C. HURTT, Trustee in Bankruptcy of the Estate of
William G. Rider, Individually and trading as RIDER
SUPPLY COMPANY and as RIDER CONSTRUCTION
COMPANY, Bankrupt,

Vv.
NICHOLAS A. STIRONE,
Appellant.
SAME,
Appellant,
v.
SAME.

Appeals from the Judgment of the Court of Common Pleas
for the County of Allegheny at No. 3290
October Term, 1957.

Filed January. 14, 1965.

COHEN, J.

As recently as Zubrod v. Kuhn, 357 Pa. 200, 53 A. 2d
604 (1947) we held that the record of a defendant’s con-
viction of criminal assault and battery was inadmissible in
an action to reeover civil damages for the same assault
and battery. Today the majority holds that a conviction
of a defendant in a federal criminal court for a violation
of the federal anti-racketeering law, including extortion, as

24

federally defined, is conclusive proof of plaintiff’s right
to recover from the defendant in a state unjust enrichment
action.

The majority relies on Pennsylvania Turnpike Comm. v.
United States Fidelity & Guaranty Co., 412 Pa. 222, 194 A.
2d 423 (1943). First, we there established, at great length,
that the conduct for which the public official had been
criminally convicted was precisely the same conduct which,
by contract, made his bondsman civilly lable to the Com-
monwealth. In fact, we were of the opinion that the
criminal conviction itself was tantamount to a breacl of the
bond. Here we are left to speculate on the correlation of
the precise facts supporting the federal offense and the
precise facts necessary to prove the plaintiff's alleged eivil
action. Second. in Pennsylvania Turnpike we found that
the identical questions involved in the civil eases had been
“exhaustively and conclusively litigated” in the criminal
case and that the questions were thoroughly explored in a
long and well conducted trial when ‘‘detailed evidence was
adduced.’’ Here, the majority merely states that defendant
had “more than ainple opportunity to overcome the charges
lodged” and then asserts that it is “incredible to such a
situation that defendant would present less than his best
defense, knowing that his failure would result in loss of
substantial property, or even his liability.”

Third, in Pennsylvania Turnpike, before we allowed the
eriminal conviction to he conclusive proof of the facts there-
in established—which is another way of saving that the
doctrine of collateral estoppel applied—we found that there
was a substantial identity of parties. This, of course, is a
prerequisite to collateral estoppel. Helmiq v. Rockwell
Manufacturing Company, 389 Pa. 21, 131 A. 2d 622 (1957).
The Commonwealth was the plaintiff-proseeutor in the

25

criminal ease and the Turnpike Commission was the plain-
tiff in the civil ease. We said “(t]he commission is an
instrumentality of the Commonwealth.” Pennsylvania
Turnpike, supra, at 220. While Torrance was the defend-
ant in the criminal ease and his surety the defendant in
the civil ease, we held that “{t}he surety is bound by the
determination of the principals liability.” Jd., at 229.
But by no stretch of the imagination ean the plaintiff in this
civil ease be likened unto the federal government for pur-
poses of the identity of parties rule in the application of
collateral estoppel. Therefore, the criminal conviction can-
not be conclusive proof of plaintiff’s right to recover in this
case.

Finally, the majority would distinguish records of con-
viction in “minor matters” only on the supposition that
“expediency and convenience, rather than guilt, often con-
trol defendant’s trial technique” and that “in such cases,
it is not obvious that the defendant has taken advantage of
his day in court, and it would be unreasonable and unreal-
istic to sav he waived that right as to a matter (civil lia-
bility) which was probably not within contemplation at the
time of the conviction.” I doubt the propriety of this von-
jectured distinction as much as I do the appiiestion of col-
lateral estoppel doctrine on the conjecture that it is un-
believable that defendant will not try in a “serious” criminal
ease. Also. I doubt that the distinction between “major”
und “minor” matters ean be well drawn by courts in this
area of vital importance to the htigants.

For these reasons [ dissent.

26

Dissenting Opinion of Justice Musmanno

IN THE
SUPREME COURT OF PENNSYLVANIA

Western District
Nos. 219 and 225 March Term, 1964

W. C. HURTT, Trustee in Bankruptcy of the Estate of
William G. Rider, Individually and trading as RIDER
SUPLY COMPANY and as RIDER CONSTRUCTION

COMPANY, Bankrupt,
mA

NICHOLAS A. STTRONE,
Appellant,

SAME,
Appellant,

v

SAME.

Appeals from the Judgment of the Court of Common Pleas
for the Couaty of Allegheny at No. 3290,
October Term, 1957.

Xo. 219: Entered, April 20, 1964.
No. 225: Entered. April 28, 1964.

DISSENTING OPINION
MUSMANNO. J. Filed: January 14, 1965.

What a defendant battles for in a criminal case is wholly
different from what he defends against in a civil case. The

20

issues are different, the facts frequently differ, and they
are certainly presented in a different way. Obviously, the
objectives are different.

In fighting for his name and liberty in a criminal prosecu-
tion. the defendant might well be unconeerned about de-
tails of financial bookkeeping. his eye being focused on the
main objective of clearing his name. What is money against
honor and liberty? In a civil case, however, a defendant
can battle for every dime and penny unhaunted and unin-
hibited by the shadow of a criminal conviction which could
blast his whole life. Thus, it is entirely unfair and im-
proper to introduce during a civil trial the judgment of a
criminal court as being conclusive of the issues raised in
the civil court.

The Majority Opinion admits that:

“In Pennsylvania, judgments in criminal eases for

years were held inadmissible to establish the facts in a

civil ease,”
but gives no reason for changing that fundamental rule of
justice. It merely states that “the tendency of recent deci-
sions is away from” such a rule. That to me is not enough
to justify so drastic a change in the law which touches
upon a man’s liberties.

I do not share the apprekension voiced in the Majority
Opinion that to contest the issue of money in a civil case
after a criminal conviction “would be to fly in the face
of reason.” and it “would be a general indictment of the
whole American jury system.” This presupposes that a
jury may never err and that a jury's verdict is like a preci-
ous vase which must not be handled for fear of breakage.
In every session of this court the vase of verdicts is studied
and often sent back to the factory for refusing.

28

The Majority states that where the lesser misdemeanors
are involved, the record of the conviction may not be intro-
duced in a civil suit involving the same subject matter.
If the conviction may not be introduced where the offense is
a lessor one, why should it be introduced where the offense
is grave and calls for severe penalties and, in the event
of an adverse civil verdict the jucgment will also be a
severe one?

I dissent.

Letter Dated February 19, 1965 from Prothonotary

THE SUPREME COURT OF PENNSYLVANIA
Western District

Patrick N. BoLstncER
Prothonotary

Heven D. STEELE
Deputy Prothonotary

PrrrssureH, Pa.
February 19, 1965

Lloyd F. Engle, Jr., Esq.
Wilner, Wiiner and Kuhn, Esqs.
1314 Frick Building

Pittsburgh 19, Pa.

Re: W.C. Hurtt, etc. v. Stirone
No. 219 March Term, 1964
Dear Mr. Engle:

Please be advised that the Court has entered the follow-
ing Order on the Petition for Reargument filed in the above
matter :

tS

“February 16, 1965
Denied, Per Curiam, By the Court”
Very truly vours,
HELEN D. STEELE

Deputy Prothonotary

HS/wb
ee: David MeNeil Olds, Esq.

APPENDIX B

Constitution of United States Amendment VII Civil Trials

In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than accord-
ing to the rules of the cominon law.

Constitution of United States Amendment XIV, Section 1
Due Process and Equal Protection

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 enforee any law 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, with-
out due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

30

Constitution of Pennsylvania Article 1, Section 6
Trial by Jury

Trial by jury shail be as heretofore, and the right thereof
remain inviolate.

Certificate of Service
I certify that I have served the foregoing Petition upon
opposir;* counsel, David MeNeil Olds, Esquire, by mailing
same to him postpaid at his office address, 747 Union Trust
Building, Pittsburgh, Pennsylvania 15219.

LLOYD F. ENGLE, JR.,
Attorney for Petitioner.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0553%3A2. Public record. Not legal advice.