Opposition Brief — Altamimi v. Brabender

Co

No. 04-265 a Court us)

—

In The 22 2004

Supreme Court of the Anited THY eK |

MAJEED ALTAMIMI,

Petitioner,

v.

DANIEL J. BRABENDER, JR., W. RICHARD COWELL,

JOHN R. WINGERTER, LEE C. FULLER, TED J.

PADDEN, DONALD J. ROGALA, BRADLEY K.

ENTERLINE, MARY PAYTON JARVIE, individuals,

and CARNEY & GOOD, a professional partnership,

Respondents.

BS

vv

On Petition For A Writ Of Certiorari

To The Supreme Court Of Pennsylvania

¢

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

2

Vv

JAMES R. SCHADEL, ESQUIRE

PA. I.D. 27937

Counsel of Record

Amy J. Coco, ESQUIRE

PA. I.D. 73416

WEINHEIMER, SCHADEL &

HABER, P.C.

Firm #090

602 Law and Finance Building

429 Fourth Avenue

Pittsburgh, PA 15219-1503

(412) 765-3399

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

RESTATEMENT OF THE

QUESTION PRESENTED FOR REVIEW

1. Whether the state court properly dismissed a

state law legal malpractice action as time barred where

the Petitioner had filed his action more than six years

after the termination of the attorney-client relationship

and more than six years after his sentencing?

il

TABLE OF CONTENTS

Page

RESTATEMENT OF THE QUESTION PRESENTED

FOR REVERE scusssncicaeniiecqacssantildaasdbatenseatnnes i

TABLE OF AUST Ra seis Fi iisccsctucsivcssesisercsscciesstiecsias iii

COUNTER STATEMENT OF THE CASE................... 1

REASONS FOR DENYING THE WRIT...................... 3

I. Petitioner has not stated a claim for viola-

tion of equal protection or of due process ....... 3

A. The statute of limitations here does not

treat similarly situated persons differ-

B. The statute of limitations is rationally

related to legitimate governmental in-

Ce OGRE ..«....siscsmisaccacetebsdoemanaecameasssiiesients 9

Ii. Petitioner has failed to plead any proper

jurisdictional basis for this Court to hear

these state Law CIRIGBD ccccccecccccectacececcsessoccscocess 13

CONCLUSION .......:+.scsccuruenninanseeeis eenaannnnsenensbaanaan 14

iii

TABLE OF AUTHORITIES

Page

CASES

American Pipe and Const. Co. v. Utah, 414 U.S. 538

I le tlic tiae a ah ad racic kdb sbnlghanbbeaceneniueniemiannenied 4

Bailey v. Tucker, 621 A.2d 108 (Pa. 1993)................. passim

Bowen v. City of New York, 476 U.S. 467 (1986)................. 4

Braswell v. Flintkote Mines, Ltd., 723 F.2d 527 (7th

SN I he salen ddd nadeiheddabtinedanckabiuntaianensuionauiamiaviuatiuesen 10

Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d

I I cides accbheadbekaseatoiaaksewnnabend 4,9, 10, 11

City of Cleburne v. Cleburne Living Center, Inc., 473

secs aacicnisanasndensonaapeanioiiions 4,9

Clark v. Gulesian, 429 F.2d 405 (1st Cir. 1970), cert.

denied, 400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d

(REET Ae a Oe ee Ne ae ae 10

Dincher v. Marlin Firearms, Co., 198 F.2d 821 (2d

a alee 10

Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir. 1982)........ 10

Mathis v. Eli Lilly & Co., 719 F.2d 134 (6th Cir. 1983) ......... 10

Order of Telegraphers v. Railway Exp. Agency, 321

RE ARSE TEER ay EOE ROMO Ne ORR ND 4

Ornstein v. Regan, 604 F.2d 212 (2d Cir. 1979) ................ 10

Robbins & Seventko Orthopedic Surgeons, Inc. v.

Geisenberger, 674 A.2d 244 (Pa.Super. 1996).............. 6, 7

Romer v. Evans, 517 U.S. 620 (1996)... eee eeeee 9

U.S. Department of Agriculture v. Moreno, 413 U.S.

A a ciiacuoaeaninnunciosoes 9

Wood v. Carpenter, 101 U.S. 135 (1879)........... ee eeeeeee 3

1V

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION

Is ice TR aia mae 9

Constitution of the Commonwealth of Pennsylvania........ 13

RULES

Be SN I laid sacs diene santincoelosiialedicabennatinsSniensagsananuon 1

Be I ic vcstcusaciseinciinasnsmununsaceehotehecanankexeiteaniamies 1

Be eR III ind ncctheaspteianccncsngsh vandaaatendagudlesinkunescceas-euedanats 1

Oe ee CIE iistsch Lcenesctiaunsadibedcdinnesncsardaueckcadcecunianies 4,9

Be PEA: ENT citeiasucctiscenciens Hideatieinsdcandebidaiesasaatueniasanias 13

1

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

COUNTER STATEMENT OF THE CASE

This is a state law claim for a legal malpractice under

Pennsylvania law arising out of Petitioner’s guilty plea to

Indecent Sexual Assault and Corruption of a Minor.

Petitioner, an immigrant from Iraq, was charged with

Criminal Solicitation (18 Pa.C.S.A. §902), Indecent Sexual

Assault (18 Pa.C.S.A. §3126) and Corruption of the Morals

of a Minor (18 Pa.C.S.A. §6301) arising out of an incident

occurring on January 19, 1995. Defendant Daniel Bra-

bender, Jr., Esquire represented Petitioner in defense of

the criminal charges filed against him. Defendant disputes

that Petitioner asserted his innocence. Petitioner signed

the plea agreement in connection with the matter on or

about February 13, 1995 and testified regarding the plea

on September 6, 1995. (Transcript of plea hearing, RR,

p. 131a). The Petitioner testified at that hearing that he

understood the plea agreement (RR, p. 137-138a), that he

understood he was pleading guilty with no agreement as

to sentencing (RR, p. 142a) and that he acknowledged he

had spoken to his attorney and his interpreter about what

was in the agreement (RR, p. 141a). As a result of the

agreement, the charge of Criminal Solicitation was

dropped and Petitioner pled guilty to the offenses of

Indecent Sexual Assault and Corruption of the Morals of a

Minor. Thereafter, Petitioner was sentenced to incarcera-

tion at a sentencing hearing on or about October 10, 1995.

Defendant Brabender filed a Motion to Modify and Reduce

Sentence on behalf of Petitioner which the court denied

the very next day. After that ruling, but sometime before

the end of October 1995, Petitioner terminated Mr. Bra-

bender as his counsel.

2

After terminating Mr. Brabender as his counsel in

October 1995, Petitioner did not file a direct appeal in the

matter. However, Petitioner subsequently retained James

Stuczynski, Esquire, in June of 1996. On June 3, Peti-

tioner filed a Motion for Post Conviction Collateral Relief

(PCRA) which was denied on November 25, 1996. Peti-

tioner appealed and said appeal was denied on September

8, 1997. A Petition for Allowance of Appeal was filed to the

Pennsylvania Supreme Court, which was denied on

February 23, 1998.

As a consequence of Petitioner’s guilty plea and

incarceration on charges involving “moral turpitude,” the

Immigration and Naturalization Services (INS) served

upon him an Order to Show Cause why he should not be

deported. An INS hearing was held on October 21, 1997,

and Petitioner was ordered to be deported. That decision

was affirmed on February 5, 1999. Subsequently, in order

to avoid the deportation, Petitioner filed a Petition for

Habeas Corpus in the United States District Court for the

Western District of Pennsylvania. It was in INS proceed-

ings that the Petitioner for the first time raised his issues

regarding the incontinence, impotence and loss of sexual

functioning to attempt to show innocence. However, the

sexual function was not an element of the underlying

criminal charges. The magistrate judge originally recom-

mended denying the Petition; however, after Petitioner

filed objections to the Magistrate’s Report, his Petition was

granted. The Commonwealth of Pennsylvania did not

oppose the Petition for Habeas Corpus as Petitioner had

served all of his state court sentence and was no longer in

the custody of the Commonwealth at the time his Petition

was finally granted on August 21, 2001. Petitioner asserts

that he was cleared of all the charges, when in fact, he was

eee

ee

a

3

not. To the contrary, the habeas corpus was granted

allowing him to stay in the country.

Petitioner, on February 15, 2002, then filed this legal

malpractice claim against Defendants, Mr. Brabender and

the Law Offices of Carney & Good, more than six (6) years

following his sentencing in state court on October 10, 1995

and Mr. Brabender’s termination as Petitioner’s counsel in

October 1995.

+

vy

REASONS FOR DENYING THE WRIT

I. Petitioner has not stated a claim for violation

of equal protection or of due process

This Court has long held that “[s]tatutes of limitation

are vital to the welfare of society and are favored in the

law. They are found and approved in all systems of

enlightened jurisprudence. They promote repose by giving

security and stability to human affairs. An important

public policy lies at their foundation. They stimulate to

activity and punish negligence.” Wood v. Carpenter, 101

U.S. 135, 139 (1879). This Court consistently upholds the

States’ interest in eliminating stale claims. As this Court

explained:

Statutes of limitation ... are designed to pro-

mote justice by preventing surpr’ses through the

revival of claims that have been allowed to slum-

ber until evidence has been lost, memories have

faded, and witnesses have disappeared. The the-

ory is that even if one has a just claim it is unjust

not to put the adversary on notice to defend

within the period of limitation and that the right

to be free of stale claims in time comes to prevail

over the right to prosecute them.

4

Bowen v. City of New York, 476 U.S. 467, 482 n. 13 (1986);

American Pipe and Const. Co. v. Utah, 414 U.S. 538, 554

(1974); Order of Telegraphers v. Railway Exp. Agency, 321

U.S. 342, 348-49 (1944). There is no absolute and unlim-

ited constitutional right of access to courts, only reason-

able access is necessary. Ciccarelli v. Carey Canadian

Mines, Ltd., 757 F.2d 548 (3d Cir. 1985). The statute of

limitations in Pennsylvania, under 42 Pa.C.S.A. §5524,

provides that negligence claims must be brought within

two (2) years of the date the cause of action arises. The

Pennsylvania Supreme Court in Bailey v. Tucker, 621 A.2d

108 (Pa. 1993) examined claims of legal malpractice and

determined when the statute of limitations begins to run.

As the statute of limitations does not treat similarly

situated persons differently, is reasonably related to

legitimate government interests, and the Petitioner was

given reasonable opportunity to be heard, there is no

federal constitutional violation here. The determination of

when a state law cause of action arises is purely a matter

of state law, and this Court should deny the Petition.

A. The statute of limitations here does not

treat similarly situated persons differently

The Equal Protection Clause of the Fourteenth

Amendment “is essentially a direction that all persons

similarly situated should be treated alike.” City of Cle-

burne v. Cleburne Living Center, Inc., 473 U.S. 432, 439

(1985). Petitioner’s claim here that the statute of limita-

tions for a legal malpractice claim arising out of a criminal

claim treats him differently than those arising out of other

tort claims such as malicious prosecution or abuse of

process. However, this is a misstatement of the law of

Pennsylvania. The statute of limitations in this matter

treats the claimants identically and requires that the

claim be brought within two years from the date the claim

accrues. The law is clear in Pennsylvania that the statute

of limitations in a legal malpractice action arising out of a

criminal matter commences to run not later than the

termination of the attorney-client relationship. Bailey v.

Tucker, 621 A.2d 108 (Pa. 1993). In Bailey, supra, the court

found that in the context of a criminal malpractice action,

the time when the harm is suffered in the typical case is

“easily identifiable, i.e., the date of sentencing.” Bailey,

621 A.2d at 116. Nevertheless, the court recognized that in

criminal proceedings the date the defendant is aware that

counsel may have been responsible for the alleged harm is

often harder to pinpoint. Jd. Therefore, the court held that

the appropriate starting point for the statute of limitations

in a criminal malpractice suit is the termination of the

attorney-client relationship since at that point the ag-

grieved defendant is aware of the injury and is on clear

notice to investigate any alternative cause of that harm

which he believes to exist. Jd.

Although Petitioner argues that he must bring his

claim prior to it accruing, this is simply not the case. In

fact, Petitioner’s cause of action accrues at the date of

sentencing. At that point, duty, breach and harm have all

occurred, according to the court in Bailey. The cause of

action has accrued at that point. And moreover, the court

in Bailey specifically addressed this element of the claim

not as an element necessary for the prima facie case to file

the suit, but rather that “a plaintiff will not prevail in

an action in criminal malpractice unless and until he

has pursued post-trial remedies and obtained relief which

was dependent upon attorney error.” Specifically address-

ing the Petitioner’s issue, the court notes that “(this

6

requirement does not, however, relieve the plaintiff of his

duty to initiate this cause of action within the statute of

limitations period as hereinafter discussed.” Jd., 621 A.2d

at 115. While plaintiff may later be precluded from pre-

vailing in a legal malpractice action because he cannot

prove that he was innocent of the action and able to obtain

post-sentencing relief, this does not mean his claim has

not accrued. Rather, these are elements that, if not proven,

break the chain of causation.

The claim for legal malpractice arising out of a civil

action is identical in this respect. Robbins & Seventko

Orthopedic Surgeons, Inc. v. Geisenberger, 674 A.2d 244

(Pa.Super. 1996). There, the plaintiff may later obtain

relief in the appellate court which would prevent his

recovery in the legal malpractice action because it breaks

the chain of causation. However, as explained by the court

in Robbins, this does not mean that the cause of action did

not accrue. The court in Robbins explained the Bailey

holding as follows:

While the Court did require a plaintiff to pursue

post-trial remedies and obtain the relief that was

dependent on the attorney’s errors before the

malpractice claim was cognizable, it did not ex-

empt the plaintiff from filing the action within

the prescribed statute of limitations period. Bat-

ley, 533 Pa. at 251 n. 13, 621 A.2d at 115 n. 13.

The Court explained:

“[w]e recognize the concern about the amount of

claims that might clog the civil dockets. However,

we feel that it is more important that we require

these criminal defendants to file their claims

within the statutory period to prevent any injus-

tice to an attorney who has to defend a claim of

7

malpractice many years after his relationship

with the client ends.” Bailey, 533 Pa. at 252 n.

15, 621 A.2d at 115 n. 15. In those instances

where the malpractice claim must be filed before

the post conviction process was completed, the

Court directed an attorney defendant to inter-

pose a preliminary objection on the grounds of

demurrer. The trial court was then instructed to

reserve its ruling until the post conviction proc-

ess was resolved. Bailey, 533 Pa. at 251 n. 13,

621 A.2d at 115 n. 13.

Robbins, 674 A.2d at 248. The court in Robbins then held

that the statute of limitations in a legal malpractice action

arising out of a civil matter was not tlled during the

appeal process in that matter. Therefore, the rule in Bailey

is in that manner no different for civil action claimants

and the causes of action accrue when duty, breach and

harm are present. Here, the Petitioner’s cause of action

accrued at the time he alleged that Mr. Brabender allowed

him to enter into the plea agreement and when he was

subsequently sentenced. All of this occurred in 1995.

Therefore, his claim accrued in 1995. Further, there is no

question that Petitioner was actually aware of the duty,

breach and the actual harm at that point. He had been

sentenced and he pleads in this matter that he had main-

tained his innocence throughout serving his sentence

(although this fact is disputed). He was accordingly aware

then at the time of his sentencing that he had pleaded

guilty to a crime for which he was sentenced to jail and

that he maintained he did not commit.

The instant matter is not a malicious prosecution

action, nor is it a false arrest or imprisonment claim.

Rather, this is a claim for legal malpractice arising out of a

criminal matter, just as the claim in Bailey. The elements

8

of malicious prosecution and false imprisonment claims

are very different than those of a legal malpractice action

and the claimants are not similarly situated. In a legal

malpractice action, a plaintiff is bringing a claim against

his own lawyer, and the court in Bailey directly addressed

the policy considerations involved in a criminal defendant

suing his lawyer. The Court explained:

Unlike in the civil litigation area, a client does

not come before the criminal justice system un-

der the care of his counsel alone; he comes with

full panoply of rights, powers, and privileges.

These rights and privileges not only protect the

client from abuses of the system but are designed

to protect the client from a deficient representa-

tive. Thus, whereas in a civil matter a case once

lost is lost forever, in a criminal matter a defen-

dant is entitled to a second chance (perhaps even

a third or fourth chance) to insure that an injus-

tice has not been committed. For these reasons

we are constrained to recognize that criminal

malpractice trespass actions are distinct from

civil legal malpractice trespass actions, and as a

result the elements to sustain such a cause of ac-

tion must likewise differ.

Id. at 114. The Petitioner is claiming that his due process

— rights are being violated because he must file his legal

malpractice action against his criminal attorney within

two years from the date of the termination of the attorney-

client relationship. His argument is that he has fewer |

rights than those bringing false imprisonment or mali- |

cious prosecution claims. However, in actuality, as the

court addressed in Bailey, the criminal defendant comes

with full panoply of rights, powers, and privileges as part

of the criminal process designed to protect him from

OE

9

deficient representation. Therefore, the statute of limita-

tions began to run at Petitioner’s sentencing on October

10, 1995. Pursuant to 42 Pa.C.S.A. §5524, a legal malprac-

tice action in negligence must be brought within two (2)

years of the date the cause of action arises. The instant

action, brought by Petitioner more than six (6) years after

the cause of action arose, is barred by the statute of

limitations applicable in legal malpractice actions sound-

ing in both negligence and contract.

As Petitioner cannot meet his burden that he was

treated differently than similarly situated classes of

persons. Petitioner was not denied due process, and _ this

Petition should be denied.

B. The statute of limitations is rationally re-

lated to legitimate governmental interests

Even assuming Petitioner was treated differently, this

statute of limitations is constitutional. In considering

whether state legislation violates the Equal Protection

Clause of the Fourteenth Amendment, U.S. Const., Amdt.

14, §1, the Court applies different levels of scrutiny to

different types of classifications. Under the rational basis

standard of review, “legislation is presumed to be valid

and will be sustained if the classification drawn by the

statute is rationally related to a legitimate state interest.”

Cleburne, supra, 473 U.S. at 440; See also U.S. Depart-

ment of Agriculture v. Moreno, 413 U.S. 528, 534 (1973);

Romer v. Evans, 517 U.S. 620, 632-33 (1996).

The court in Ciccarelli, supra, examined the appel-

lant’s claim that the difference in the running dates of the

statutes of limitations in the wrongful death action and

survival action violated equal protection and due process

10

rights. The court held that it did not and stated that even

statutes that in effect extinguish claims before they accrue

can be constitutional. Jd. The court noted that “[b]ecause

statutory periods are in some sense arbitrary, the period to

initiate suit occasionally expires before a claimant has

- sustained any injury, See e.g. Jewson v. Mayo Clinic, 691

F.2d 405, 411 (8th Cir. 1982); See also Dincher v. Marlin

Firearms Co., 198 F.2d 821, 822-23 (2d Cir. 1952), or before

the claimant knows he has sustained an injury, see, e.g.,

Jewson, 691 F.2d at 411; Clark v. Gulesian, 429 F.2d 405,

406 (Ist Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct.

461, 27 L.Ed.2d 441 (1971).” Jd. 757 F.2d at 555. The court

found that these statutes do not violate the constitution so

long as the term is otherwise reasonable. Id. See also

Braswell v. Flintkote Mines, Ltd., 723 F.2d 527, 531 (7th

Cir. 1983); Mathis v. Eli Lilly & Co., 719 F.2d 134, 139 (6th

Cir. 1983); Jewson, 691 F.2d at 411; Ornstein v. Regan, 604

F.2d 212, 214 (2d Cir. 1979).

The court in Ciccarelli also held that having different

running times for different claims does not violate equal

protection. The court stated:

The distinction does not implicate a suspect class

nor a fundamental right; consequently, if the dis-

tinction is rationally related to a legitimate gov-

ernment interest it does not violate equal

protection. A distinction between wrongful death

and survival actions, and those personal injury ac-

tions brought by living plaintiffs, is related to the

state’s interest — and those of the survivors — in

the prompt settlement of the economic and legal

affairs of the deceased. The state legislature may

not be said to be irrational in encouraging a per-

sonal representative to bring suit promptly. Re-

quiring all wrongful death and survival actions

11

to be commenced within one and two years, re-

spectively, of the decedent’s death may well rep-

resent a conclusion by the state that the right to

be free of state claims in time comes to prevail

over the right to prosecute them even though this

may lead to harsh results in some cases.

Id., 757 F.3d at 555-56.

Likewise, in the instant matter, Petitioner claims that

the statute of limitations accrual established in Bailey

violates the constitution because it treats claims against

lawyers differently than it treats claims for malicious

prosecution or false imprisonment. However, this impli-

cates neither a suspect class nor a fundamental right.

Therefore, so long as the distinction is rationally related to

a legitimate government interest, it is constitutional. In

Bailey, the Pennsylvania Supreme Court addressed the

mumerous government interests involved in litigation in

claims against lawyers, and in particular, lawyers in

criminal malpractice actions. Those interests included:

1) the threat of a malpractice action for repre-

sentation of a criminal defendant will have a

“chilling effect” on counsel’s ability to defend

his client fearlessly and independently;

2) as a consequence the system will have diffi-

culty attracting and maintaining attorneys

to represent persons charged with crime,

and the retention of an attorney will become

prohibitively expensive;

3) aggrieved defendants already have sufficient

systemic remedies for attorney ineffective-

ness such as appeals and post-conviction

proceedings;

12

4) to permit such a cause of action will result

in a flood of litigation; and

5) the existence of such a cause of action leads

to the possibility of a guilty “in fact” party

actually profiting from his crime where the

attorney’s negligence was directed to a non-

factual aspect of the criminal defense

Id., 621 A.2d at 112-13. The Pennsylvania Supreme Court

appropriately balanced a plaintiff’s right to bring a claim

with a defendant’s right to be put on notice of a claim and

the interest of avoiding litigation of stale claims. Pennsyl-

vania has a Writ procedure which allows the plaintiff to

file a notice of a claim without asserting the facts support-

ing the elements of a cause of action. In these types of

circumstances, this would place the defendant lawyer on

notice to maintain files and information with respect to a

representation. The Pennsylvania Supreme Court clearly

considered these issues in holding that the cause of action

accrued at the latest at the time of the termination of

representation. Therefore, the Pennsylvania courts had

rational reasons related to legitimate government inter-

ests in deciding the accrual period for claims against

lawyers. Accordingly, the statute of limitations accrual

period for legal malpractice claims is constitutional.

Petitioner has not met his burden of establishing that

there is no rational reason related to legitimate govern-

ment interests in this matter. Accordingly, the lower courts

appropriately ruled and there is no compelling reason

justifying additional review. Accordingly, this Petition

should be denied.

13

II. Petitioner has failed to plead any proper

jurisdictional basis for this Court to hear

these state law claims

Petitioner's attempt to have this Court consider

whether or not the statute of limitations for legal malprac-

tice claims violates Equal Protection and the Constitution

of the Commonwealth of Pennsylvania must fail as there is

no proper jurisdictional basis. The United States: Supreme

Court may review judgments rendered by state courts

under 28 U.S.C. §1257. The section permits review by

certiorari of a final judgment of the highest court of a state

that is premised on federal law or where the validity of a

state statute is violative of federal law or the Constitution.

The decisions by the Pennsylvania appellate courts at

issue in this Petition for Writ of Certiorari were based

exclusively on state law claims. There is no reference in

the decisions of the Pennsylvania appellate courts to any

federal law, including the federal equal protection and due

process clauses. More importantly, 28 U.S.C. §1257 only

permits this Court to review decisions of the highest court

of a state which concern federal law. Further, Petitioner is

not complaining that the terms of the state law statute of

limitations violate federal law. Rather, the Petitioner

appears to be complaining that the Pennsylvania Supreme

Court’s holding of the elements for a state law claim of

legal malpractice violates due process. This is entirely a

state law issue and does not implicate federal law in any

way and 28 U.S.C. §1257 does not confer jurisdiction on

this Court to hear this claim.

Finally, by definition, Petitioner’s claim that the

application of the statute of limitations denies him rights

under the Constitution of the Commonwealth of Pennsyl-

vania is a state law claim, and 28 U.S.C. §1257 will not

14

confer jurisdiction upon this Court to entertain such a

claim. Therefore, this Petition should be denied.

¢

CONCLUSION

Because the state courts have properly ruled regard-

ing this state law issue, and no federal constitutional

violation occurred, this Court should deny the Petition.

Respectfully submitted,

WEINHEIMER, SCHADEL & HABER, P.C.

JAMES R. SCHADEL, ESQUIRE

Pa. I.D. 27937

(Counsel of Record)

AMY J. Coco, ESQUIRE

Pa. I.D. 73416

Counsel for Respondents