Petition for Writ of Certiorari — Koresko v. Farley

; guprarre Court, U8.

7™ FILED

j/

Oh 661 NOV 8 2004

No. OFFICE OF THE CLERI

IN THE

Supreme Court of the Anited States

BONNIE J. KORESKO and

JOHN J. KORESKO, V,

Petitioner

MARK FARLEY, SEATON ROSS, L.P., TOWNSHIP OF

TREDYFFRIN, BRYN MAWR CUSTOM HOME, INC.,

and OLLIE BOWER,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

JOHN J. KORESKO, V., ESQUIRE

200 West Fourth Street

Bridgeport, PA 19405

(610) 992-2200

Petitioner Pro Se and on

Behalf of Bonnie Koresko

Wright Appellate Services 1105

(215) 733-9870 ® (800) 507-9020 @ Fax (215) 733-9872

QUESTIONS PRESENTED

1. Whether a fundamental due process violation oc-

curred when a state trial court and state appellate courts ig-

nored and failed to address Petitioners properly raised

federal claims under 42 U.S.C. §1983?

2. Whether a local subdivision Ordinance is constitution-

ally defective because it does mot require notice to adjoining

land owners in all situations where their property rights will

be permanently altered by operation of the proposed subdivi-

sion plan and contemplated development activity?

3. Whether the dearth of case law throughout the country -

on the question of whether encroaching roots from ancient

boundary trees can be protected by prescriptive easement or

equitable license requires clarification by this Court in cases

involving 42 U.S.C.§1983

4. Whether Petitioners were denied fundamental due proc-

ess when the state trial and appellate courts refused to prop-

erly adjudicate a petition for attorney disqualification due to

conflict of interest, when such conflicted attorney was also a

state actor who sought to aid deprivation of Petitioners’

Property rights?

PARTIES TO THE PROCEEDING

Petitioner Bonnie Koresko is a citizen and resident of the

Commonwealth of Pennsylvania. Petitioner John Koresko is

an attorney and also a resident of Pennsylvania. At all times

relevant to this case, Petitioners were the owners of residen-

il

tial real estate consisting of a house and a 1.3 acre parcel of

land located in a very wooded part of Tredyffrin Township,

Chester County, Pennsylvania. Ancient trees located on the

Koresko property, but within a few feet of the boundary of

an adjacent parcel, have grown naturally for decades to

heights in excess of 75 feet. Roots and branches from the

trees grew naturally and undisturbed across the boundary.

Petitioners contend that this natural encroachment of the tree

roots and branches created easements or other property inter-

ests in their favor. The destruction of certain of these roots,

and the corresponding infringement by Respondents on Peti-

tioners’ property rights, precipitated the actions by Petition-

ers in the lower courts to seek equitable relief and/or

compensation under the common law, the U.S. and Pennsyl-

vania Constitutions, and 42 U.S.C. § 1983.

Respondent Tredyffrin Township, Chester County, Penn-

sylvania is a municipal corporation created and existing un-

der the laws of the Commonwealth of Pennsylvania.

In its capacity as municipal government, Tredyffrin en-

acted subdivision ordinances as part of the Tredyffrin Town-

ship Code. The procedures, substance, and failure to enforce

protections contained such ordinances were challenged in the

lower courts and are the subject of this Petition.

Respondent Mark Farley 1s an adult individual and a citi-

zen and resident of the Commonwealth of Pennsylvania. Mr.

Farley was the land developer whose actions, which could

only occur with the approval of Tredyffrin Township, re-

sulted in the destruction of Petitioners’ property.

TO Et PN A te ia ts +

Respondents Bryn Mawr Custom Home, Inc. and Seaton

Ross, L.P. are entities controlled by Mark Farley that con-

duct business within the Commonwealth of Pennsylvania.

At all relevant times Mr. Farley acted through these entities

as well as in his own right in conducting the development

activities which were subject of the Complaint advanced by

Petitioners in the courts below.

Respondent Ollie Bower is the former owner of the tract

of land adjacent to that of Petitioners developed by Mr. Far-

ley (the “Bower tract”). Respondents Mr. and Mrs. Stephen

Kay and Mr. and Mrs. Robert Grupp purchased and presently

own the two houses Farley built on the Bower tract. The ac-

tions by Bower and Farley to subdivide the Bower tract into

two lots, to build upon it, and thus cause damage to Petition-

ers’ property was at various points approved or ratified by

these parties in conjunction with the Township and Mr. Far-

ley.

iv

TABLE OF CONTENTS

Questions Presented ................:c:ccsccsseeseeseeeeeeeeestseenenneteeeaeees 1

Parties To The Proceeding.................:ccccssseeceeeeeseteeeereeeeseeees i

Table Of COmQemtS........000..sseccccccssssorasscnsssscsssnnssascsssosnsncsssces iv

Table of Authorities .......................ssscccsseesecesersecsccsssssessorsees vi

Opinions Below ...............::-::::ssecsceeceeeeeeteeeeeneensens aabcouuia l

Statement of Jurisdiction .................2.:ccccceeeseeeeeeeeeeeeeeeeeeeeees 1

Constitutional Provisions, Statutes,

Regulations Involved ...............:::::::scssceseeeeeseeeseeeeeeeteeesees l

Statement of the Case ...................cccccccecessesssesseseeeseterenenneees 4

Reasons For Granting the WTrit................:-::::seceeeeseeeeeeeeees 10

I. The failure of any of the lower courts to address

constitutional claims raised by Petitioners under

42 U.S.C. §1983 was a violation of due

PTOCESS............scesceceesescenssccecsecsersessecenssnenssneneenoes 10

I. Tredyffrin Township Ordinance is

constitutionally Defective as it fails to give

notice to property owners whose rights will be

permanently altered by a proposed subdivision

PUR. ...ncnocaennnarenensanscccnsenesennecsenssnsnansssnsnsnncnansanese 13

Ill. The absence of state law necessitates this

Court’s clarification of the property right espe-

cially as it relates to claims under 2 U.S.C.

ID. nciosncecascsdsceceteasrmienitasiidetacegaaeiieaataaaen 20

IV. The failure of the lower courts to address the

issue of the disqualification of William Lamb,

Esq. and his firm was a denial of Petitioners’

SRE 00 GRE PROCORE 2202.2 -cnrcrncccercesnsomssosarecsses 25

I LIOR ee CoN DANSON: cae Daven are 30

vi

TABLE OF AUTHORITIES

Cases:

Booksa v. Patel, Cal.App.4™ 1786 1786 (1994) ........-.--0+ 22

Cohens v. Virginia, (6 Wheaton) 19 U.S. 264 (1821) .12, 21

Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 156 (1978) ...... 11

Fletcher v. Peck, 10 U.S. 87 6 Cranch 87, 3 L.Ed. 162

CRB NGI a senccssecsercinseninchicinisionsninssnsntiiielibipseieiaenmuaiaianaaies 21

Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed. 2d 556, 92 S.Ct.

19GS CRO TD caccsecvsceninrinsscconsesnensatshcohounpsaianenianein 19

Hirshfield v. Schwartz, 91 Cal.App.4" 749 (2001) ........--- 24

Jones v. Wagner, 425 Pa. Super. 102, 624 A.2d 166,

alloc. denied, 536 Pa. 626, 637 A.2d 286 (1983).........-. 15

Jordan v. Fox, Rothschild, O'Brien and Frankel, 20 F.3d

1250 C3 Cir. CGD) ocenccacscsicseecrecessenvenssnniennntaisanineniansins 11

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ......... 17

Lewkowicz v. Blumish, 442 Pa. 369, 275 A.2d 69 (1971) ...5

Loretto v. Teleprompter Manhattan CATV Corp.,458 US.

AID (19B2)...........ccrcccccsccccsseincsceccccsccccssccsesssensscnsscosscosscnens 17

Martin v. Hunter's Lesee, 14 U.S. 304 (1816) ...............--- 21

Matthews v. Eldridge, 242 U.S. 319, 98 S.Ct. 893 (1976) 19

vil

Monell v. Department of Social Services, 436 U.S. 658,

691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) ......... 25

Morning Call v. Bell Atlantic Properties, 761_A.2d 139,

2000 Pa. Super. 294 (2O0D)..............c..cccceccccscccseccsenseeses 15

Mulane vy. Central Hanover and Trust Co., 339 U.S. 306,

946 L.Ed. BGS, FO BICT. GSE CRAG) cccncccscvsensevsessscssccscee 18

North Georgia Finishing, Inc v. DiChem, Inc., 419

U.S. 601, 42 L.Ed. 2d 751, 95 S. Ct. 719 (1975)........... 19

Paul v. Davis., 424 U.S. 693, 710-711, 96 S.Ct. 1155,

1165, 47 L.Ed. 2d 405, 419 (1976) ................ececeeseeeeee ees 18

People v. Sutherland, 252 N.Y . 86 (1929) ........-..-.:--0-s00+ 23

Pierce v. Casady, 11 Kan. App. 2, 711 P.2d 766 (Ks. Ct.

Pierce v. Casady, 711 P.2d 766 ( Kan. Ct. App. 1985) .... 16

R v. Com Dept of Public Welfare., 535 Pa. 440, 451, 636

ABB 04GB; BGT CHGTDD ccecccnsisenicnttcnnscecinticmszerictnsiacmmsention 18

Robinson v. Clapp, 65 Conn. 365 (1895)........--...:--0+e0++ 22

Sniadach v. Family Finance Corp. of Bay View, 395 U.S.

337, 23 L.Ed. 2d, 89 S.Ct. 1820 (1969) .......2...-.-eeeeeeeee 19

United States v. Causby, 328 U.S. 256, 265, 66 S.Ct. 1062,

1067, 90 L.Ed. 1206 (1946) .222...0-..cressccsecsescconsesscescesoees 17

Van Allen v. Town of Kinderhook, 263 N.Y .S.2d 491; 47

Misc. 2d 955 (Sup. Ct. 1965)

Vill

Wagner v. Jones, 425 Pa. Super. 102, 624 A.2d 166

(1993)...........ecceccsecsecssccsssssssesseccsssssssssscssnnsncssnsssscsscsnseens 23

Constitutional Provisions:

Constitution of the Commonwealth of Pennsylvania,

Article 1, Section I ................c..ccccsscscsscssessesserscssssssssssaesees 3

Constitution of the United States, Amendment V ............... ]

Constitution of the United States, Amendment XIV .....2, 18

Title 53 Unconsolidated Pennsylvania Statutes

Pennsylvania Municipalities Planning Code Article 9§§

1098, 10909;Article 10§§ 1101-A to 11006....................- 4

United States Code, Title 42, Section PE kiss hinsnandiadmesocnnson 2

United States Code, Title 42, Section 1985...............::-+++ 2

Statutes:

2B U.S.C. § 1257 (a) .....--.-cccsccsccesecrcccesssnccesssccsscscssesssnnceoes l

28 U.S.C. § 1983 ...............ccccssseresserccessrccsscossssrcssssnesssnees 28

42 U.S.C. § 1983, et SOQ. .........2cceeeeeeeeensseeeeesenectenneeees passim

ee ee SE e—aEaeeEeeeooor NS aN

OPINIONS BELOW

The opinion of the Chester County Court of Common

Pleas is not a reported opinion and is included in the Appen-

dix to this Petition.

The opinion of the Commonwealth Court of Pennsylvania

is reported at 844 A2d 607 (Pa. Commwith. 2003).

No opinion was issued by the Supreme Court of Pennsyl-

vania in its denial of the Petition for Allowance of Appeal.

by Order issued on August 9, 2004.

STATEMENT OF JURISDICTION

The Petition for Allowance of Appeal to the Supreme

Court of Pennsylvania was denied on August 9, 2004. This

was a final decision from the highest appellate court of the

Commonwealth of Pennsylvania. Jurisdiction of the Su-

preme Court of the United States is invoked pursuant to 28

U.S.C. 1257 (a).

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

Constitution of the United States, Amendment XIV:

Section |. All persons born or naturalized in the United

States and subject to the jurisdiction thereof are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law whic! 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 deny to any. person within its

jurisdiction the equal protection of the laws.

Title 42 United States Code, Section 1983: Civil Action

For Deprivation of Rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the juris-

diction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be

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

or other proper proceeding for redress, except that in any ac-

tion brought against a judicial officer for an act or omission

taken in such officer's judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes of this

section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the

District of Columbia.

Title 42 United States Code, Section 1985-Conspiracy to

Interfere with Civil Rights

(3) Depriving persons of rights or privileges

If two or more persons in any State or Territory conspire

or go in disguise on the highway or on the premises of an-

other, for the purpose of depriving, either directly or indi-

rectly, any person or class of persons of the equal protection

of the laws, or of equal privileges or immunities under the

laws; or for the purpose of preventing or hindering the con-

stituted authorities of any State or Territory from giving or

securing to all persons within such State or Territory the

equal protection of laws; or if two or more persons conspire

to prevent by force, intimidation, or threat, any citizen who is

Me Ni as SA ea 2 a hat Ab Miele bated wine

lawtully entitled to vote, from giving his support or advo-

cacy in a legal manner, toward or in favor of the election of

any lawfully qualified person as an elector for President,

Vice President, or as a Member of Congress of the United

States; or to injure any citizen in person or property on ac-

count of such support or advocacy; in any case of conspiracy

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

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

object of such conspiracy, whereby another is injured in his

person or property, or deprived of having and exercising any

right or privilege of a citizen of the United States, the party

so injured or deprived may have an action for the recovery of

damages occasioned by such injury or deprivation, against

any one or more of the conspirators.

Constitution of the Commonwealth of Pennsylvania,

Article 1, Section 1:

Article 1-Declaration of Rights

That the general, great and essential principles of liberty

and free government may be recognized and unalterably es- -

tablished, WE DECLARE THAT —

Section 1. Inherent Rights of Mankind

All men are born equally free and independent, and have

certain inherent and indefeasible rights, among which are

those of enjoying and defending life and liberty, of acquir-

ing, possessing and protecting property and reputation, and

of pursuing their own happiness.

Section 27. Natural Resources and the Public Estate

The people have a right to clean air, pure water, and to the

preservation of, the natural, scenic, historic and esthetic val-

ues of the environment. Pennsylvania’s public natural re-

sources are the common property of all the people, including

generations yet to come. As trustee of these resources, the

Commonwealth shall conserve and maintain them for the

benefit of all people.

Title 53 Unconsolidated Pennsylvania Statutes

Pennsylvania Municipalities Planning Code Article 9 §§

1098, 10909; Article 10 §§ 1101-A to 11006

These portions of the Pennsylvania Unconsolidated Stat-

utes are included in the attached Appendix

Code of the Township of Tredyffrin, Pennsylvania v. 26

Chapter 181-Subdivision and Land Development Article

IV §§181-8 to 181-19

This portion of the Township Code is included in the at-

tached Appendix.

STATEMENT OF THE CASE

In the courts below Petitioners advanced a properly pled

action under 42 U.S.C. §§ 1983, and 1985. This cause of ac-

tion as well as other Constitutional claims were simply ig-

nored by the Pennsylvania courts. Petitioners sought to

protect both substantive and procedural rights in the protec-

tion of their property interests, to wit: the lives of the ancient

trees located on their property, their right to the perpetual

enjoyment of those trees, and their right to protect their

property. The lower courts, in contradiction to well estab-

lished principles of law and equity, held that Petitioners had

no property interests worthy of protection. Those courts thus

avoided the thorny questions of substantive and procedural

rights protected by the U.S. Constitution and enforceable un-

der 42 U.S.C. § 1983 et seq. The Township of Tredyffrin

approved a subdivision plan for the Bower parcel adjacent to

land owned by Petitioners. The subdivision plan was ap-

proved without any notice to the Petitioners because the

Township’s Subdivision and Land Development Ordinances

do not require any such notice. The Bower parcel and Peti-

tioners’ property are located in a highly-wooded area zoned

for single-family residential use. The properties share a 200

foot boundary line. Located on Petitioner’s land next to the

boundary line is a row of ancient trees. The trees are all over

50 feet tall and have an age averaging 68 years. Both

branches and roots of these trees have grown naturally and

unabated, 20 feet or more across the boundary onto the adja-

cent Bower tract. The growth of both branches and roots

over the boundary line has continued unabated for well be-

yond 21 years.' Pursuant to development activity apparently

permitted by the subdivision plan, Respondents amputated

An arborists' expert report, introduced as evidence below and

presented here as Appendix M opines that the roots and branches

have grown continuously on the Brower tract for a far longer time

— averaging 64 years. Pennsylvania’s minimum period for vesting

of prescriptive rights is 21 years. See Lewkowicz v. Blumish, 442

Pa. 369, 275 A.2d 69 (1971).

the roots of the boundary trees, resulting in substantial dam-

age and certain death of the trees.

Several months after Tredyffrin approved the subdivision

plan, Petitioners discovered that Respondent owners and de-

velopers were about to begin construction on the Bower

tract. Petitioners contacted the Township and. its solicitor

and requested that the Township refrain from issuing build-

ing permits. The request was denied and Petitioners were

informed by the Township representatives that they had no

right to stop the construction. Petitioners commenced suit in

the Court of Common Pleas of Chester County, Pennsyl-

vania. The complaint advanced causes of action for trespass,

interference with easement, violations of due process rights,

unlawful taking and violation of 42 U.S.C. §1983, appropri-

ate equitable relief to prevent further damage, restitution and

removal of offending uses.

Prior to the commencement of this case, William Lamb,

the Tredyffrin Township solicitor, represented Petitioner

John Koresko and his law firm in a related collection matter

against Respondent Mark Farley. Before Petitioners had any

notice of the subdivision plan, Mr. Lamb’s firm acted as

counsel in execution proceedings leading to levy against the

Bower tract where the subdivision construction was sched-

uled. Judge Robert Shenkin, the same lower court judge in

this case, stayed the execution proceedings upon the posting

of bond by Mr. Farley. ;

On June 25, 2001 Petitioner John Koresko met with Mr.

Lamb and others. Petitioner’s concern was that in the course

of his representation by Mr. Lamb and his firm, they were

privy to confidential information that involved the property

subject of the now disputed subdivision activity. Petitioner

was told that Mr. Lamb and his firm would be representing

the Township in the instant case, but would take only a pas-

sive role in the dispute. Mr. Koresko, having raised the con-

flict issue, was assured that Mr. Lamb and his firm would not

engage in any action adverse to Petitioner’s interest. On this

basis Mr. Koresko waived the potential conflict.

Approximately a year into the litigation Lamb’s position

changed. It became clear that the Lamb firm and the Town-

ship were acting in concert with Mr. Farley in the discovery

process. More importantly, Mr. Lamb sent a letter to Mr.

Koresko threatening an abuse of process action. In response

Mr. Koresko wrote to Mr. Lamb stating the actions were in

conflict with the June 25" agreement. Because the Lamb

firm was representing the Township in an action that was

directly adverse to Petitioners’ interest, while continuing to

represent Mr. Koresko in the collection matter, Mr. Koresko

asked Mr. Lamb to withdraw from representing the Town-

ship. Lamb refused to do so and instead had his firm termi-

nate its representation of Mr. Koresko in the other collection

and levy matter involving Mr. Farley and the Bower tract.

Petitioner Koresko moved for the disqualification of Mr.

Lamb. The trial court did not address the merits of the issue

or hold any form of evidentiary hearing. It avoided any dis-

position by deeming the motion moot in light of its ruling on

the underlying property right: The conflict of interest issue

has been repeatedly raised in all of the lower courts and ig-

nored. During the pendency of the appeals, Mr. Lamb, for-

mer Chairman of the Chester County Republican Party,

received a political appointment to a vacant seat on the Penn-

sylvania Supreme Court. Governor Mark Schweiker

conditioned that appointment on Lamb’s agreement not to

subsequently seek election to retain the seat.

There has been no dispute that the Township Ordinance at

issue contained no requirement to give any notice to adjoin-

ing landowners like Petitioners and that the ancient trees

were mortally damaged as a result of the development. The

trial court, in disposing of Petitioners’ Motion For Partial

Summary Judgment and Respondents’ Motions for Judgment

on the Pleadings, declined to acknowledge the existence of

any property right of Petitioners. The trial court never ad-

dressed the cause of action clearly alleged under federal aw

or any of Petitioners’ constitutional claims, but nevertheless

entered final judgment against Petitioners. Petitioners sought

leave to amend pleadings prior to the filing of dispositive

motions but leave was denied. Petitioners filed a timely ap-

peal as to all issues.”

On appeal to the Commonwealth Court, Petitioners again

raised the lack of notice requirements in the Tredyffrin Sub-

division Ordinance, along with the nature of the Petitioners’

property interests and infringement of same by Respondents.

The Commonwealth Court noted that this was a “case of first

impression” and affirmed the lower court’s finding that no

easement or other property right existed as to the tree roots.

The Court also affirmed the lower court’s refusal to permit

2 The Notice of Appeal was originally filed with the Superior

Court of Pennsylvania. A motion was made on behalf of Tredyf-

frin Township to Transfer the Appeal to the Commonwealth Court

which is the appropriate intermediate appellate court for disputes

involving local governments. The Motion was granted and the

matter proceeded in the Commonwealth Court.

amendment of pleadings, and held that the Pennsylvania

Municipalities Planning Code was the excusive vehicle for

challenging the validity of the subdivision. The equity ac- ~

tions were deemed to be moot. Of particular note are the is-

sues the Commonwealth did not address in any fashion

despite their having been raised by Petitioners. Petitioners

asserted that the Township, the Developer, and property

owners acted under color of state law to deprive Petitioners

of their constitutionally protected rights to the use and en-

joyment of the boundary trees. No mention was made by the

Commonwealth Court of the questioned municipal ordinance

or lack of notice, nor was there any mention made of the

failure to enforce certain tree protection laws equally as to all

citizens. The Court in very brief terms agreed with the lower

court’s denial of Petitioner’s motion to disqualify Lamb’s

firm from representing the Township. The Court took no

issue with the sparse record and litigation against a recent

client whom Lamb dropped like the proverbial “hot potato.”

A Petition for Allowance of Appeal was filed timely in the

Pennsylvania Supreme Court. Petitioners advanced as rea-

sons for granting an appeal: (1) the lower courts erred in

holding that Petitioners had no property interest; (2) the ac

tions of the Respondents herein impaired fundamental liberty

and property interests of Petitioners in violation of the Con-

stitutions of Pennsylvania and the United States; (3) Peti-

tioners as adjoining landowners most likely to be harmed had

standing to enforce provisions of the subdivision plan and

complain about violations of restrictions and ordinances; and

(4) the lower court’s refusal to promptly address

disqualification of the Lamb firm prior to making decisions

on the merits cast an unacceptable pall over the proceedings

as

10

Township Solicitor Lamb was also a state actor. The Penn-

sylvania Supreme Court denied the Petitions without opinion

by Order on August 9, 2004.

REASONS FOR GRANTING THE WRIT

I. The failure of any of the lower courts to address the

constitutional claims raised by the petitioners

under 42 U.S.C. §1983 was a violation of due

process

The Petitioners in Count V of their Complaint as filed in

the Court of Common Pleas of Chester County, Pennsylvania

(Appendix H) stated:

“93. The allegations of the preceding para-

graphs are incorporated by reference.

94. Plaintiffs have been denied their property

rights without compensation or due process of law

by the actions of the Defendants Farley and Bower

in concert with Defendant Tredyffrin Township, its

supervisors, employees, and agents, in violation of

the Constitution of Pennsylvania and the United

States of America and the applicable provisions of

state and federal law.

95. Plaintiffs are entitled to equitable or legal

relief in order to restore their property rights to a

position existing prior to the grant of the Subdivi-

sion, or to be compensated through restitution for

an unlawful taking.”

Petitioners submit that these paragraphs, read in conjunction

with the facts and allegations as pled in the incorporated

11

paragraphs, set forth both state and federal constitutional

claims.

The claims advanced by Petitioners are on a par with those

advanced in the matter of Jordan v Fox, Rothschild, O’Brien

and Frankel, 20 F3d 1250 (3 Cir. 1994). The Plaintiffs in

Jordan sued when their lessor, acting through its attorneys,

garnished funds in a bank account after obtaining a judgment

by confession. The Third Circuit Court of Appeals held that

the then current Pennsylvania procedures for executions

upon confessed judgments violated the Due Process Clause

of the Fourteenth Amendment to the United States Constitu-

tion because defendant law firm, under the color of Pennsyl-

vania civil procedures, “caused the state to forcibly to

deprive [plaintiff] of its property without the pre-deprivation

notice and hearing due process requires.” Jd. at 1267. In or-

der to prevail on their federal claims, Petitioners must estab-

lish (1) the violation of a federally protected constitutional or

statutory right, (2) by state action or action under color of

law. Id.; see Flagg Bros., Inc. v Brooks, 436 U.S. 149, 156

(1978).

The Petitioners’ Complaint in the lower courts was suffi-

cient in that it alleged notice was not given before Petitioners

were deprived of their property rights under the Subdivision

Plan and subsequent development. The Township acted

through its solicitor, Mr. Lamb, its manager, Mr. Joseph

Janasak, and other Township employees. The Respondents

acted under the Township’s procedures for approval of sub-

division plans, permits, and ongoing inspections of the con-

struction activities conducted by Farley. The Township

approved the development plan and issued the permits to

Bower and Farley wherein the Petitioners’ property was

12

taken without notice and compensation. Farley could not

have acted absent the initial Township approval and contin-

ued satisfaction of Township inspectors who supervised con-

struction and allowed it to continue despite clear deviations

from the subdivision plan and the Township Code. These

are clear 14" Amendment violations for which redress may

be had under the Constitution and 42 U.S.C. § 1983.

Petitioners’ complaint alleges not only the direct depriva-

tion of property rights but also the constitutional defect in the

Township ordinance. A crucial point in this assignment of

error is that none of the lower courts fulfilled their constitu-

tionally mandated duties by ignoring the federal claims, and

the state appellate courts simply ignored them despite proper

preservation of the issues and substantial briefing on appeal.

The Constitution charges the judicial branch of govern-

ment with the duty of maintaining justice. The court system

is supposed to work for the people. The Constitution defines

the things the courts cannot do as well as those things the

courts must do. Courts cannot simply duck federal questions

that are properly raised. This tenet has been part of Ameri-

can jurisprudence since the beginning of this country. As

Chief Justice Marshall said in Cohens v Virginia, (6 Whea-

ton) 19 U.S. 264 (1821):

“It is most true that this court will not take juris-

diction if it should not, but it is equally true that it

must take jurisdiction if it should. The judiciary

cannot, as the legislature may, avoid a measure be-

cause it approaches the confines of the Constitu-

tion. We cannot pass it by because it is doubtful.

With whatever doubts, with whatever difficulties, a

case may be attended, we must decide it, if it be

13

brought before us. We have no more right to de-

cline the exercise of jurisdiction which-is given,

than to usurp that which is not given. The one or

the other would be treason to the Constitution.

Questions may occur which we would gladly

avoid, but we cannot avoid them. All we can do is

to exercise our best judgment, and conscientiously

perform our duty.”

The Courts below did not perform their constitutional

duty. None of them addressed the Petitioners’ claim under

42 U.S.C.81983. The most fandamental violation of due

process has thus occurred, in violation of the 14" Amend-

ment. To redress this constitutional violation, the Court

should grant certiorari and issue a summary reversal.

Il. The Tredyffrin Township Subdivision Ordinance is

constitutionally defective as it fails to give notice to

property owners whose property rights will be

permanently altered by a proposed subdivision plan

The Tredyffrin Township Code contains in its Article If

§181-7 et seq. (Appendix B) the ordinance(s) which set forth

the procedures to be followed to obtain approval of a subdi-

vision plan. The procedures to be followed depend on the

classification of a subdivision as “major” or “minor”. While

the subject ordinance provides for public notice and hearing

as to major subdivisions, there are no provisions for any type

of notice as to “minor” subdivisions. The lack of notice is

most notably demonstrated in the testimony of Joseph

Janasek (Appendix J), the township manager, when he states:

“There’s no notice required. Certified letters are not sent in

14 |

any cases.” (Appendix I, p. 9). The operation of the ordi- |

nance makes no provision for notice by either the township

or land developer to adjoining property owners who may be

affected by a proposed subdivision plan. This is a remark-

able, constitutionally archaic deficiency in that the rights of

an adjoining property owner could be protected by the sim-

ple requirement of a letter and the expenditure of postage for

certified mail. In its present form an affected property owner

only gets notice when the bulldozers begin to dig and the

harm is already inflicted.

The lower courts and the Respondents have taken the posi-

tion that no notice was required because under the particular

circumstances of this case Petitioners had no cognizable

property right. A brief examination of Pennsylvania law on

the subject demonstrates the existence of a property right

whether by prescriptive easement or permanent license.”

As the Commonwealth Court noted in its opinion (Appen-

dix C) the question of whether a prescriptive easement Over

land arises from encroaching tree roots is one of first impres-

sion in Pennsylvania. However, prior Pennsylvania jurispru

a ee

* Petitioners’ claim arises from their interest in the tall trees that

formed a natural boundary line between Petitioners’ and the ad-

joining property. The interest is either and easement or a perma-

nent license. The exact nature of the property interest may be

subject to differing interpretations. What is clear is that under

color of law a property right was exposed to deprivation. The

builder did not list the trees on the subdivision plan. The subdivi-

sion plan provided for a 6 feet deep excavation along the boundary

line, withing the dripline of Petitioners trees, for a driveway and

utility lines. The excavation ripped right through the roots of the

trees, which are now dying.

15

dence provided an alternative basis upon which to answer

this question in the affirmative. The Pennsylvania Superior

Court in Jones v Wagner, 425 Pa. Super 102, 624 A2d 166,

alloc. denied, 536 Pa. 626, 637 A2d 286 (1983), recognized

that prescriptive easements regarding tress could give rise to

a cause of action in Pennsylvania. On the issue of tree

branches creating an easement by prescription the Superior

Court commented:

“We cannot help but wonder whether the con-

tinued presence of encroaching tree branches, held

openly, notoriously, hostility, and continually for

21 years would create a prescriptive easement in

the airspace in which they hang. If this would be

the case, and we can find no Pennsylvania law

which would indicate that a prescriptive easement

is not available in this situation, a land owner who

suffers actual harm for the first time during the tree

owner’s twenty-second year of hostile ownership,

might very well be precluded from seeking a judi-

cial, or even a self-help remedy. This result while

not entirely unforeseeable, is anomalous. How-

ever, if an action is available without a showing of

damage, the land owner has no reason to complain

if a neighbor’s tree causes damage after the pre-

scriptive period has run.”

525 Pa. Super. at 112, n. 3, 624 A2d at 171, n. 3.

Alternatively the Petitioners asked the lower courts to

consider the holding of Morning Call v. Bell Atlantic

Properties, 761 A2d 139, 2000 Pa. Super 294 (2000). There

the Superior Court recognized an equitable property right,

“irrevocable license,” for encroachments and uses of many

dec

16

ades which do not quite fit the definition of prescriptive

easement. Rather than find under Pennsylvania law the exis-

tence an easement, or alternatively, an irrevocable license,

the Commonwealth Court ignored its sister appellate court

entirely and instead adopted the reasoning of a Kansas in-

termediate appellate court, Pierce v Casady, 711 P2d 766

(Kan. Ct. App. 1985). Pierce was inapposite and incorrect in

articulating the law of shared use and easements as to tree

branches, especially as such uses exist in moder society.

While the Pennsylvania Supreme Court has not made a

specific declaration as to the nature of the interest created in

circumstances described in this case, and intermediate courts

are in conflict, a property right does exist. The Pennsylvania

Constitution, Article I, §27 provides:

“The people have a right to clean air, pure water,

and to the preservation of the natural, scenic, his-

toric and esthetic values of the environment. Penn-

sylvania’s public natural resources are the common

property of all the people, including generations

yet to come. As trustee of these resources, the

Commonwealth shall conserve and maintain them

for the benefit of all people.”

A property owner, by virtue of his ownership of the land

and the trees upon it, has a right to preserve environmental

resources over which he has dominion. Under Article 1, sec-

tion 1, of the Pennsylvania Constitution, the landowner has

the express right to protect his property. Local governments

under Pennsylvania’s Constitution, Article 1, section 27

likewise have a duty to preserve and protect natural re-

sources like trees. The private rights and public duties inter

17

sect. Not only does the private land owner have a property

right in the trees, but also the accompanying right to the en-

joyment of the same. Government has the affirmative duty to

maintain and enforce its mandate to preserve the lives of

trees, especially when it exercises dominion over public

property or submits private property to government control

by regulating the privilege of subdivision. The courts below

forgot that the privilege of subdivision, regulatable under the

police power of government, can never trump the rights of

private property owners or the beneficiaries of a constitu-

tionally-mandated public trust.

These rights are no less real than other property rights

consistently recognized by this Court. In Loretto v Tele-

prompter Manhattan CATV Corp., 458 U.S. 419 (1982), the

restriction of the use of water was found to be a property

right with a significant impact since the restriction of use ex-

tinguished all property value Id. at 319. In reaching this

conclusion, the Court analogized the case to United States v

Causby, 328 U.S. 256, 265, 66 S.Ct. 1062, 1067, 90 L.Ed.

1206 (1946), in which frequent flights immediately above a

landowner’s property were akin to a physical taking. “Even

if the Government physically invades only an easement in

property, it must nonetheless pay just compensation.” Kat-

ser Aetna v. United States, 444 US. 164 (1979); citing

Causby, supra. The same rule must apply when a developer,

given permission to act by the state, disregards an easement

or irrevocable license, or simply takes an action that harms a

neighbor’s trees. The approval of the subdivision plan, issu-

ance of permits, and allowance of the activities thereunder

permitted the developer to kill ancient trees by amputating

their roots. [Appendix M-Arborist Report.] This occurred

18

despite Tredyffrin’s pre-existing ordinances that barred con-

struction within the dripline of any tree. The trees as corpo-

real works of nature, and Petitioners’ intangible right to

enjoy their beauty and positive contribution to the environ-

ment, are no less protected property interests than the rights

to use of water and air space without interference by gov-

ernment.

Petitioners submit that the existence of protected property

rights is clear. As such, constitutional and statutory protec-

tions attach. Under the 14'" Amendment to the United States

Constitution as well as Article I, §1 of the Pennsylvania

Constitution, all persons possess a protected interest in the

possession, protection, and enjoyment of all their property,

whether tangible (trees) or intangible (enjoyment). This

Court has repeatedly ruled that the procedural rules of the

Fourteenth Amendment apply whenever the State seeks to

remove or significantly alter protected status of a liberty or

property interest. R v Com. Dept. of Public Welfare, 535 Pa.

440, 451, 636 A2d 142, 147 (1993) quoting Paul v Davis,

424 U.S. 693, 710-711, 96 S.Ct. 1155, 1165, 47 L.Ed. 2d

405, 419 (1976) (footnote omitted ).

The Due Process Clause of the Fourteenth Amendment

requires at a minimum that the deprivation of life liberty or

property must be preceded by notice and opportunity for

hearing appropriate to the nature of the case. Mulane v Cen-

tral Hanover and Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70

S. Ct. 652 (1950). The Due Process Clause requires states to

make efforts to provide notice to all parties whose interests

are affected by proceedings in front of a tribunal. Where

parties assert rights in the same piece of property, one party

cannot claim the right under operation of statute without

19

proper notice to anyone whose rights may be affected.

Sniadach v Family Finance Corp. of Bay View, 395 US.

337, 23 L.Ed. 2d 349, 89 S.Ct. 1820 (1969) (Wisconsin gar-

nishment statute struck down for failure of notice provision),

Fuentes v Shevin, 407 U.S. 67, 32 L.Ed. 2d 556, 92 S.Ct.

1983 (1972) (invalidating state replevin law which permitted

ex parte procedure to seize goods; North Georgia Finishing,

Inc. v DiChem, Inc. 419 U.S. 601, 42 L.Ed. 2d 751, 95 S.Ct.

719 (1975) (invalidating an ex-parte garnishment statute).

In the present case, Petitioners received no notice because

notice under the ordinance is not required. Consequently,

there was no opportunity or mechanism for Petitioners to

voice opposition to a proposed subdivision or present evi-

dence on their behalf as to the adverse effects to their prop-

erty interests. This is what due process requires and its

absence demonstrates the primary constitutional infirmity of

the Tredyffrin Township Ordinances. It was error for the

lower courts to ignore the federally protected rights of the

Petitioners.*

* Respondents have asserted that Petitioners did not have standing

to bring the action as they were required to exhaust remedies un-

der the Pennsylvania Municipalities Code 53 P.S.§ 10900 et seq.

The administrative remedy was not exclusive. See Matthews v El-

dridge, 242 U.S. 319, 98 S.Ct. 893 (1976) n.10. Availability of

administrative remedies does not preclude raising constitutional

claims in a court of competent jurisdiction. The Municipality

Planning Code (MPC) does not trump the Fourteenth Amendment

or 42 U.S.C. §1983. Moreover, any conceivable remedy under the

MPC became effectively moot as Petitioners ‘notice’ was the de-

struction of their property.

20

Ill. The absence of state law necessitates this Court’s

clarification of the property right especially as it

relates to claims under 42 U.S.C. §1983

Although the facts of this case are local in nature, there is

an important national environmental issue to be resolved. In

the absence of particular state law on an issue, the federal

law will be authoritative. Blind and harsh application of

common law is simply not appropriate in modern times. For

example, the common law through much of history provided

that a landowner’s property rights extend from the ground to

the heavens. The development of air travel caused modifica-

tion of the common law to contemplate protection of only

the air space a landowner could reasonably use. Just as air

space rights required rearticulation of the common law so

does the law as to ancient trees and the encroachment of root

systems. The majority of persons in this county no longer

live in rural communities. Subdivisions and property devel-

opment has continued and communities are now comprised

of neighbors who share property and tree lines in close prox-

imity. There is a paucity of either statutory or case law.

None of the cases provide any real guidance as to the nature

of the property right and the protections attached thereto. It

is necessary for this Court to clarify the law relating to en-

croaching tree roots and its effect all Americans who share

boundaries with properties subject to future development.

This case presents one of those rare opportunities to fash-

ion the common law in the United States. The Court can

5 Petitioner’s research discloses that at least 35 states appear to

have not addressed the issues of prescriptive easement or irrevo-

cable license in relation to encroaching tree roots. Most of the

21

state unequivocally that the right to enjoy a tree, and the

right to protect it from destruction, is protected under the

Constitution. Furthermore, the Court can eliminate another

of those self-help remedies that barely breathe within the

common law but are disfavored and almost extinct in modern

society. Self-help remedies tend to cause social problems in

a complex society like ours. The present case is conceptu-

ally no different than cases like Sniadac,supra, Fuentes, supra,

and North Georgia Finishing, Inc., supra which struck down

other types of self-help remedies absent notice of intent to

harm a property right. “False is the idea of utility that sacri

cases considering the issue have not reached the states’ highest

courts. In the absence of a state’s declaration of common law, or

an erroneous one, this Court’s articulation of the common law can

be binding, especially in cases litigated in federal courts. See, Van

Horne's Lessee v. Dorrance, 2 Dall. 304, 310 (1795). After refer-

ring to various provisions of the constitution of Pennsylvania, Jus-

tice Paterson maintained, "it is evident that the right of acquiring

and possessing property, and having it protected, is one of the

natural, inherent and inalienable rights of man.... The legislature

therefore had no authority to make an act divesting one citizen of

his freehold, and vesting it in another, without just compensation.

It is inconsistent with the principles of reason, justice and moral

rectitude; it is incompatible with the comfort, peace and happiness

of mankind; it is contrary to the principles of the social alliance, in

every free government; and lastly, it is contrary to the letter and

spirit of the constitution." /d., at 310. See also, Fletcher v. Peck,

10 U.S. 87 6 Cranch 87, 3 L.Ed. 162 (1810) (property rights pro-

tected from local attempts to impair title), Martin v. Hunter's Les-

see, 14 U.S. 304 (1816); Cohens v. Virginia, 19 U.S. 264 (1821)

(review of — unconstitutional state court decisions).

22

fices a thousand real advantages for one imaginary or tri-

fling inconvenience. . . .”. Thomas Jefferson, Commonplace

Book, 1774-1776.

California states a compromise rule in Booska v. Patel, 24

Cal.App.4th 1786 (1994). In Booska, the defendant had sev-

ered roots that extended under his property from a large or-

namental tree that was part of the landscaping of the

plaintiff's neighboring backyard, essentially killing the tree

and forcing the plaintiff to have it removed. The Booska

court acknowledged the ancient common law rule that a

landowner has the right to cut the branches or roots of a

neighbor's tree to the extent that they encroach onto the

landowner's property, but held that this right is no longer ab-

solute. The Court of Appeal held that the right of landown-

ers to trim trees encroaching onto their land is subject to a

reasonableness standard. Booska, supra, 24 Cal.App.4th at

1791-1792.

The New York and Connecticut courts protect all tree

parts from unilateral, self-help destruction by adjoining

landowners only when the trunks are bisected by the prop-

erty line separating their respective lands. Van Allen v. Town

of Kinderhook., 263 N.Y.S.2d 491; 47 Misc. 2d 955 (Sup.

Ct. 1965) citing Robinson v. Clapp, 65 Conn. 365 (1895).

Those courts toiled with the old common law rule that al-

lowed self-help cutting of roots but found it logical to bar

such actions if the trunk were shared by both. Under this

“shared trunk” theory, either landowner has “the right to

demand that the owner of the other portion shall so use his

part as not unreasonably to injure or destroy the whole.”

This rule, while slightly more enlightened, retains an artifi-

cial and scientifically irrelevant distinction. There is no

23

logic in protecting all tree roots from destruction simply be-

cause a tree trunk is 1/1000" of an inch across a boundary

line, yet affording no protection to the vitally important roots

because the trunk comes through the ground 1/1000" inch to

the other side of the line. This rule also presupposes the fic-

tion that roots are somehow less important than trunks, and

that a person has is no property right in the enjoyment of the

tree attached to his property as a living creature of Nature.

Remarkably, the Van Allen court, citing People v. Suther-

land, 252 N. Y. 86 (1929), recognized the possibility of pre-

scriptive easements related to encroaching tree parts. In

contrast, the Pennsylvania Commonwealth Court in this case

joined the Kansas intermediate appellate court in Pierce v.

Casady, 11 Kan. App. 2, 711 P.2d 766 (Ks. Ct. App. 1985),

holding fast to the old common law self-help rule. Pierce

involved about a split tree whose limbs were a potential dan-

ger to structures on a neighbor’s property. The Kansas court

allowed the neighbor to trim the tree limb back to the prop-

erty line. However, the Kansas court clearly erred in saying

“there is no case law indicating that an easement by prescrip-

tion may be obtained by overhanging tree branches.” There

may have been no Kansas authority, but Van Allen and other

cases, see infra, were decided 20 years or more earlier, and

the law of prescriptive easements is older than that.

As stated previously, the Pennsylvania Superior Court in

Wagner v Jones, 425 Pa. Super. 102, 624 A.2d 166 (1993)

agreed with Van Allen and recognized the possibility of a

prescriptive easement for encroaching tree parts. Admit-

tedly, these reflections were in dicta, but a logical proposi-

tion of law stated in dicta does not render it erroneous. Even

if those courts took the theory of prescriptive easements too

‘-

24

far, the Pennsylvania Superior Court recognized in Morning

Call v. Bell Atlantic, supra, the theory of “irrevocable li-

cense” for long-standing uses of a servient tenement which

do not quite satisfy all the requirements of prescriptive ease-

ment. “Irrevocable license” is commonly equated by

scholars to the term “equitable easement.” This theory has

also found favor in California. For example, in Hirshfield v.

Schwartz, 91 Cal.App.4th 749 (2001), the Court of Appeal

held that an injunction granted to protect an encroachment

from destruction was an equitable remedy, rather than an ex-

clusive prescriptive easement. Essentially, the Hirshfield

court applied the modern “reasonableness standard” of

Booksa to discourage self-help and encourage the same equi-

table result Morning Call teaches in Pennsylvania.

Most important to this Court’s consideration is the wis-

dom of the Pennsylvania Superior Court in Jones v. Wagner,

supra, and its consideration of the limited amount of author-

ity from other jurisdictions. See generally, Annotation, En-

croachment of Tree, Shrubbery, or Other Vegetation Across

Boundary Line, 65 A.L.R.4th 603. The Jones Court con-

cluded: “Under the laws of those [aforesaid] jurisdictions

who have confronted the issue, and henceforth ours, a show-

ing that encroaching tree limbs, branches, or roots have

caused sensible damage is not a pre-condition to exercising a

self-help remedy.” Jones, at 425 Pa. Super. 106. This rule

should be the constitutional law of the United States when

the self-help destruction of a Neighbor’s tree roots ensues

from a subdivision and construction procedure created, con-

ducted, reviewed, approved and supervised by municipal of-

ficers, their agents, and the persons to whom they extend the

privilege of development. A local government is liable for

25

implementation of an official policy, no matter how promul-

gated, if the policy acts to deprive a person of a federally

protected right. Such a policy must be a deliberate or con-

_scious one "made by lawmakers or by those who edicts or

acts may fairly be said to represent official policy . . ." Mo-

nell v. Department of Social Services, 436 U.S. 658, 691, 98

S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Citizens have the

right to expect that government will not give aid to those

who seek to destroy property rights. Modern society has fi-

nally evolved to acknowledge the aesthetic value of trees,

especially when our citizens see fewer and fewer of them.

Science tells us that trees are essential to produce the oxygen

which sustains our lives. Tredyffrin Township had an ordi-

nance that actually demanded that no construction activities

occur where it is likely that tree roots grow. The supreme

law of this naticn needs to evolve accordingly for the benefit

of all Americans.

IV. The failure of the lower courts to address the issue

of the disqualification of William Lamb, Esq. and —

his firm denied Petitioners’ their right to due

process of law.

Part of the record in the case below includes a Motion by

Petitioners to Disqualify William Lamb, Esquire supported

by the affidavits of John Koresko, Esquire and Virginia

Miller, Esquire (Appendix J). As stated more fully in pp. 8-

10, supra, Petitioner John Koresko, the sole shareholder of

Koresko and Associates, P.C., initiated a fee collection mat-

ter against Mark Farley in the Court of Common Pleas of

26

Chester County, Pennsylvania. Judge Shenkin was also the

assigned trial judge in that matter.

In June 2001 as part of this collection matter, before any

construction began on the adjoining parcel of land, Peti-

tioner John Koresko retained William Lamb, Esq. and his

firm, Lamb, Windle and McErlane, P.C. as co-counsel with

Virginia Miller, Esq.° The Lamb firm began execution pro-

ceedings in the collection matter against the same piece of

land that was part of the now challenged sub-division plan.

At all relevant times, Mr. Lamb or members of his firm acted

as the Solicitor of Tredyffrin Township, and gave Respon-

dents the information that “they had no rights” to stop the

developer Farley from pursuing his building permits. Peti-

tioner, shared with Mr. Lamb and members of his firm confi-

dential and privileged information relating to Mr. Koresko’s

strategies involving litigation with the same Mr. Farley.

Regardless of previously waiving Lamb’s conflict as

Township Solicitor when Lamb assured Petitioner that the

Township would remain neutral in the present action, Peti-

tioner revoked his waiver and demanded that Lamb resign

once Lamb demonstrated no further neutrality. Lamb then

terminated his relationship with Petitioner in a letter stating

that given the firm’s long relationship with the Township and

the “very small matter” in which it represented Petitioner, it

was dropping Petitioner as a client. (Appendix J. Miller Af

®° Ms. Miller is a Major in a Special Operations Combat C130 Air

National Guard Unit subject to deployment at any time. Follow-

ing the attacks of September 11, 2001, she was deployed overseas

twice. As such, the Lamb firm’s involvement in this matter be-

came more than just local counsel.

27

fidavit ). Lamb actually threatened Respondents, and his

firm vehemently litigated this case against Respondents.

Lamb’s firm secured a judgment against Respondents.

Petitioners filed the appended Motion To Disqualify.

Judge Shenkin never scheduled an evidentiary hearing or

required Mr. Lamb to explain himself under oath. The Mo-

tion was given cursory treatment and then deemed moot be-

cause the trial court granted judgment on the pleadings.

Despite presentation of the issue by Petitioners, the Com-

monwealth Court made no determination as to the propriety

of the Lamb firm’s actions or the lack of an evidentiary re-

cord at the trial court level. Most notably, the Common-

wealth Court avoided any discussion of the unprecedented

holding of the trial court, that it did not have to rule on a dis-

qualification motion when made since the apparently con-

flicted attorney eventually succeeded subsequently in having

the case resolved with prejudice against his first client! The

Pennsylvania Supreme Court in its August 9, 2004 order did

not comment on any aspect of the case, despite the repug-

nance of the holding below.

Ordinarily this type of procedural problem might not merit

constitutional scrutiny. However, the facts of record con and

newspaper reports in the Appendix support Petitioner’s con-

tention that the refusal by the lower courts to deal with the

issue was a de facto deprivation of the right to due process.

As noted, Mr. Lamb was the Tredyffrin Solicitor and was

also former chairman of the Chester County Republican

Party At the time this case was appealed to the Common-

wealth Court, Mr. Lamb was appointed by a Republican

28

governor to the Supreme Court of Pennsylvania - the court

with supervisory authority over the Commonwealth Court

and trial Judge Shenkin. During Lamb’s time as a Justice of

the Pennsylvania Supreme Court, the Commonwealth Court

faced the uncomfortable prospect of subjecting a sitting Jus-

tice to criticism of his ethical responsibilities. Despite the

difficulties, Petitioners were entitled to proper consideration

of the matter, and the trial court under these circumstances

should have permitted the development of an evidentiary re-

cord. The Commonwealth Court simply compounded the

problem by ignoring it. It would be difficult to question the

professional conduct of a sitting Supreme Court Justice, who

was a Township Solicitor and a state actor with potential li-

ability under 28 U.S.C. § 1983. .

Petitioners raised the issue one last time in the Pennsyl-

vania Supreme Court. Any appellate court should be con-

cerned with a precedent that allows an attorney in a conflict

of interest situation to litigate a case to conclusion and have

that conflict disregarded without a hearing because the con-

flicted lawyer prevailed on the merits. More disturbing is

what the Pennsyivania Supreme Court already knew as it

considered the instant case. During his very short time on the

bench, then-Justice Lamb did not recuse himself in connec-

tion with a zoning case involving one of his law firm’s cli-

ents. See Appendix S. The matter was no doubt of some

embarrassment to the Court. In light of the failure of the

Pennsylvania Supreme Court or the Commonwealth Court to

even opine on the issues addressed herein, Petitioner can

7 Mr. Lamb had never served as a judge prior to his appointment

to Pennsylvania’s highest court.

29

only ask this Honorable Court to question why the judges

and justices refused to consider the possibility that the proc-

ess had been tainted. In this case, the appearance of impro-

prienty reached constitutional proportions because the state

actor at the heart of the controversy had apparent influence

over the process and judicial review was so cursory.

30

CONCLUSION

For all of the forgoing reasons Petitioners respectfully re-

quest the Court grant certiorari and summary reversal and/or

all appropriate relief consistent with the issuance of the Writ.

Respectfully submitted,

John J. Koresko, V., Esquire

Petitioner Pro Se and on

behalf of Bonnie Koresko

200 West Fourth Street

Bridgeport, PA 19405

(610) 992-2200