# Petition for Writ of Certiorari — Koresko v. Farley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1580%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 1090 ## Text ; 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1580%3A1. Public record. Not legal advice.