Petition for Writ of Certiorari — Lal v. Pennsylvania

Court,

FILED

=

IN THE

Supreme Court Of The Gnited States

A. ROBY LAL,

Petitioner

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

3 TO THE

COMMONWEALTH COURT OF PENNSYLVANIA,

BOROUGH OF MODENA

Thomas R. Kellogg, Esquire

Strong, Stevens & Wyant

1250 W. Germantown Pike, Suite 300

Plymouth Meeting, Pa. 19462-2444

(610) 832-5900

Attorney for Petitioner

May 7th, 2005

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QUESTIONS PRESENTED

1. Was the Petitioner denied the due process of law guaranteed

to him by the United States Constitution when he was

prosecuted by a Borough for offenses he did not commit and

offenses which were legislatively constituted "misdemeanors

under the Borough Ordinance rather than summary offenses in

violation of the enabling Pennsylvania legislation which

provided that boroughs of the State were limited to legislating

conduct as summary offenses under its ordinances and by

implication prohibited from creating misdemeanors under its

ordinances?

2. Was the Petitioner denied the equal protection of the laws

guaranteed to him by the United States Constitution when he

was singled out for prosecution because of his membership in

a minority group by a borough council president who had no

authority to issue citations against him because of the conflict

of interest inherent in the elective office of borough president

needing revenue which was easily obtainable through fines and

the duties of a code officer.

3. Was the Petitioner denied the due process of law guaranteed to

him by the United States Constitution (a) when the trial judge

imposed maximum fines on each citation without the:

petitioner having the benefit of a jury trial, (b) when the judge

dismissed the Petitioner's appeal without disposing of pre-trial

motions and on the pretense of his presence at the hearing even

though he was represented by an attorney and by a

representative who assisted him in managing the property

involved, and (c) when the trial judge did not follow the

proper procedure for a contempt finding instituted by

appellate courts, and (d) when respondent Pennsylvania failed

to consolidate all pertinent citations for trial as required by law.

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PARTIES

The caption contains the name of all parties to the proceeding

below.

TABLE OF CONTENTS

OPINIONS BELOW (Index to Appendixes) ..........:.c:sceseeeeees

JURESIOI., FROIN |... «incnisixcenanacetioieniniseuienenaheaneaaenannan

CONSTITUTIONAL AND STATUTORY PROVISIONS...

9 TATENEEIG 1 Cor "5 ite Scie nsesissantig socecgendpapsatigetienseapanene

REASONS FOR GRANTING THE WRIT uu... cccecceeeeeeeeees

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INDEX TO APPENDICES

APPENDIX A

Order of the Supreme Court of Pennsylvania dated October 14,

2004.

APPENDIX B

Opinion of the Commonwealth Court of Pennsylvania dated

March 16, 2004 ,

APPENDIX C

1. Order of the trial court dated February 25, 2003

2. Opinion of the trial court [by Hon. Thomas G. Gavin] dated

April 9, 2003

APPENDIX D:

CONSTITUTIONAL AMENDMENTS:

U.S. Const., Amend. 5

U.S. Const., Amend. 6

U.S. Const., Amend. 8

U.S. Const., Amend. 14

TABLE OF AUTHORITIES CITED

CASES:

' | of Swei

OO7 Ben. Cn, BG, DOG A, BG FG CI cintcctcreiccerasasenctiatetactanantistenninisiin’ 6

| of Warmi Townshi

56 D & C. 2d 99 (C.P. Bucks Co. 1971) ...ccccccccccceeeceetccceesseeees seseseenseaess 6

Austin v. United S

509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed 2d 488 (1993)... 10

W;

EOS SB CE Bs 0 ee GD GLE, FOO vivictnciccensiccctetceccennsiccrinccs 8

B ing Ferris v. Kelco Di

492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) uu... eee eeeeeeee 10

Commonwealth v. Moll

375 Pa. Super. 147, Pee Ae Ce ciceishcnsenibtecaticapieietetiinianiaiadadal 10

Commonwealth v. Shull

RE Oi 8 i ie I i csinseciciceinihesinccs thin diasinearalineeaars 10

Cooper Industries, Inc. v. Leatherman Tool Group, Inc.

532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001 ..........cce eee 11

E v, Shevi

407 U.S. 67, 92 S. Cr. 1983, 32 L.Ed.2d 556 (1972) ou... ececceeseesees 8

Gid Wainwriel

372 USS. $35, 83 S.C. 792, 9 L.Ed.2d 799 (1963) ....................cccccssscocess 4

in te ia tates Olen tte ill

FeRth ey Rete ee FR RF) | eeemeennen 5

Handi v. Rumsfeld

vy tem BL Fe Oe hy, £18 a | eMMenMEN mE En 5

5 ;

386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) .0................cccccccseeees .4,9

iV

Lawrence et al. v. Texas,

539 U.S. 558, 125 S.Ct. 2412, 156 L.Ed.2d 508 (2003) ......0.......0..eeeeeeee 7

Lawton v. Steel

152 U.S. 133, 14 S. Cr. 499, 38 L.Ed. 385 (1894) ...essececssessssesesssesrsseeeres8

¥ G ;

27 Pa. Cmwlth. 396, 366 A. 2d 615 (1976).....:c.cccccccccccssssssssscsesscceesseeees 13

)

Vv.

424 US. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ..............cccccscccsseceeceeee 5

Pointe v. Texas

380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) oo... eeeeeceseceeeeees 4

Vv.

OD Fee i eee 8

P Vv.

524 U.S. 321, 118 $.Ce. 2028, 141 L.Ed.2d 314 (1998)... eee 10

U.S. v. Dixon, et al.

509 U.S. 688, 133 S.Ct. 2849, 125 L.Ed.2d 556 (1993) woo. eee eee 12

U. S. v. Ogbuehi

O97 F Sempe. SB7 (EDD. Bik, 1GGDD ccnecessintenipasssisscceadibihitconiaet bastbatetas 12

U. S. v. Ward

448 U.S. 242, 100 S. Cr. 2636, 65 L.Ed.2d 742 (1980).........cccsccceeee 12

Yates v. U.S.

355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957) .........ccccessceeee 12

CONSTITUTIONS

U.S. Const., Amend. 5

U.S. Const., Amend. 6

U.S. Const., Amend. 8

U.S. Const., Amend. 14

28 U.S.C. 1257(a) .........ccsoceccscccsscscccscccsssccsssssecssseossserscsssessooceses

9B Paa.C.S. 322 .......ccorccccsccocrccsscccccsccoccsccccossscccsssoccssscsssssossoosoosees

$3 BS. 48301 .....cccccoccccscccccecscsesscsscoces sscccesecsssssccossesosssoncsssoqnosss

$3 BS. 461064 ........cccccrsessccorsrsccccrccccsccsssssccssesccsssencsssesosenceosssosees

GS B.S. 13.....ccrccccccccccscccccccssscesccsccccocsccccsssocossccsssscososocosssooossssoes

ORDINANCES

Property Maintenance Code of the Borough of Modena, PA

Pa RiCsien.P. Bathe SBD cccrccccccsssesssscccsstdececonsttbiedetbneneaedaanate

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2005

A. Roby Lal, Petitioner

vs.

COMMONWEALTH OF PENNSYLVANIA,

(BOROUGH OF MODENA), Respondent

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

Petitioner, A. Roby Lal, respectfully requests that a writ

of certiorari issue to review the judgmeat and opinion of the

Commonwealth Court of Pennsylvania, with respect to which

the Supreme Court of Pennsylvania denied allowance of appeal,

including, without limitation, the order of the Supreme Court

of Pennsylvania denying consolidation of two proceedings

which are the subject of this petition for a writ of certiorari and

a companion proceeding. The state court proceedings involved

citations brought by the Borough of Modena, Chester County,

Pennsylvania against the petitioner involving his one property in

the Borough.

OPINIONS BELOW

The opinion and order of the Commonwealth Court of

Pennsylvania and the order of the Supreme Court of Pennsylvania appear in

Appendix A and Appendix B to this Petition.

JURISDICTION

A petition for allowance of appeal from the Order of the

Commonwealth Court of Pennsylvania was denied by the Supreme

Court of Pennsylvania by Order dated October 14, 2004. Upon

Application No. 04A679, this Court granted an extension of time

to file this Petition for a Writ of Certiorari by March 6, 2005. A

petition was filed in a timely manner, but it covered two separate

proceedings and the Court allowed the petitioner to refile splitting

the petition into two separate cases. The court extended the peri-

od to May 9, 2005. This Court’s jurisdiction is invoked under

Title 28, U.S.C. # 1257 (a).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., Amend. 5

U.S. Const., Amend. 6

U.S. Const., Amend. 8

U.S. Const., Amend. 14

Appear in Appendix D.

In addition the following statutory provisions are particularly rele-

vant:

53 PS. 48307

65 PS. 13

STATEMENT OF THE CASE

Petitioner is a physician owned a rental property in a small

Borough of Modena Pennsylvania with a population of around 600

inhabitants. He was assisted by his father, Amrit Lal, an experi-

enced real estate manager, in managing the property. Petitioner had

made several repairs, improvements and renovations since his

acquisition in 1993 to make it suitable for residential use. The

Borough was in dire need of revenue and it selectively targeted peti-

tioner for the purpose of raising revenue through the writing of

citations. The citations were written by the Borough Council

2

:

President (Mr. Groce) who did not have legal authority under the

Pennsylvania law to write citations. Mr. Groce would sit at home

and write the citations and add the dates in sequence

and then file them with the local municipal court.

On or about December 16, 2001, Mr. Groce went to the

property of the petitioner and wrote items of deficiency which need

to be corrected. Petitioner arranged for a contractor to immediate-

ly attend to urgent matters and repairs which he did. Without pro-

viding a reasonable period of time, Mr. Groce immediately started

writing citations. Within two (2) weeks of Mr. Groce’s visits, the

house became a victim of mystery fire on December 29, 2001 in

which two small kids perished. Because of this tragedy, neighbors

and well-wishers left flowers, toys, cards of sympathy in memori-

am. Petitioner and his father who had looked after the property did

not want to disturb the sanctity of this rural setting which had

become a temporary shrine of sympathy, sadness and sorrow.

Soon thereafter, Mr. Groce wrote to petitioner’s father that

the property needed to be cleaned up. Petitioner was not certain

whether the balance of the home could be saved. Upon contacting

building developers and demolition contractors, it was discovered

that it would be an expensive proposition to save and rehab the

building. Bids were therefore sought for demolition and a contract

was signed for demolition in March 2001. A copy of the contract

was sent to Mr. Groce and the demolition contractor was request-

ed to obtain whatever permits are needed and stay in touch with

Mr. Groce. The demolition contractor had to obtain various types

of permits (State Highway Department, Telephone Company,

Electric Company etc.) prior to renting heavy equipment machin-

ery to demolish the building and clean up the site. All this was

accomplished in early May 2002. Mr. Groce, without proper and

prior notice, again started writing citations from April 3 to April

18, 2002 on the pretense that the building had not been demol-

ished by the petitioner within sixty (60) days.

On September 17, 2002, the local district court imposed a

fine of $100.00 each on the fourteen citations without regard to

the mitigating and exceptional circumstances of the situation. For

that reason, a timely appeal was filed to the Chester County

Common Pleas Court where it was vainly hoped that the respon-

dent State of Pennsylvania through its attorney (the borough solic-

itor) would consolidate the two sets of citations as required by 18

Pa.C.S. 110. Upon appeal the Common Pleas Court after a hear-

ing without jury increased the fine from $100.00 to $1000.00 on

each citation without any aggravating circumstance. The

Commonwealth Court of Pennsylvania affirmed the order of the

trial court by Order and Opinion dated March 16, 2004.

A timely petition for allowance of appeal addressed to the

Supreme Court of Pennsylvania was denied by Order dated

October 14, 2004.

REASONS FOR GRANTING THE WRIT

A. FOURTEENTH AMENDMENT VIOLATIONS OF DUE |

PROCESS

For the most part, the reasons for granting the writ are the

same in both this matter and the companion matter. It is apparent

that there was arbitrary and oppressive use of police powers by

Pennsylvania acting through the officials of the Borough of

Modena in mistreating the petitioner. It may be inferred that these

fourteenth amendment violations are germane to the national ori-

gin and Asiatic-Indian status of the petitioner, even though he is a

U. S. citizen by birth.

The protection afforded by the Bill of Rights of U.S.

Const. must be given by the States under U.S. Const., Amend. 14.

Klopper_v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18

L.Ed.2d 1 (1967). A provision of the Bill of Rights which is "fun-

damental and essential to a fair trial: is made obligatory on the

States by the Fourteenth Amendment." Gideon v. Wainwright,

372 U.S. 535, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See also,

Pointe v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923

4

‘

. Sai

P=

(1965).

In addition to being obliged to provide Fifth Amendment

due process, the states are directly obliged to provide due process

and equal protection of the laws by the Fourteenth Amendment.

In Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S.Ct.

663, 28 L.Ed. 569 (1884), the court said (at p. 707 of 111 U.S.)

with respect to the meaning of due process:

“What constitutes that process it may be difficult to define with

precision so as to cover all cases....It is sufficient to observe here,

that by ‘due process’ is meant one which, following the forms of

law, is appropriate to the case, and just to the parties to be affect-

ed. It must be pursued in the ordinary mode prescribed by the law;

it must be adapted to the end to be attained; and wherever it is nec-

essary for the protection of the parties, it must give them an oppor-

tunity to be heard respecting the justice of the judgment sought.

The clause in question means, therefore, that there can be no pro-

ceeding against life, liberty, or property which may result in the

deprivation of either, without the observance of those general rules

established in our system of jurisprudence for the security of pri-

vate rights."

In Handi v. Rumsfeld, 124 S.Ct. 2633, 159 L.Ed.2d 78

(U.S. 2004), this Court discussed the procedures it uses to deter-

mine whether a citizen is being deprived of "life, liberty, or prop-

erty without due process of law" as guaranteed by U.S. Const.,

Amend. 5. Under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct.

893, 47 L.Ed.2d 18 (1976) the Court determines the private inter-

est which is affected by the official action against the asserted gov-

ernmental interest and the governmental burdens in providing

greater process.

(i) Petitioner was issued citations against his property by an

elected official to the Borough council who had no legal authority

to write the citations. A motion to dismiss all the citations was

made due to the dual and conflicting functions of the Borough

Council President and a code enforcement officer. On February

25, 2003, the date of the hearing on appeal in the Common Pleas

5

Court, counsel for the petitioner filed a motion to dismiss the pro-

ceedings.

This pretrial motion to dismiss all the citations went to the

underlying legality of the proceedings against the petitioner

because it challenged the authority of the code officer to act in dual

capacity. The motion made by petitioner's attorney alleged that

there was incompatibility in fact between the office of Code

Enforcement and the President of the Borough Council to which

Mr. Groce admitted that he was both an elected member of the

Borough Council and an employee of the Borough. The law in

Pennsylvania, 65 PS.13 provides:

"No member of said councils shall hereafter hold any office

or employment in the choice of said councils during the term for

which he shall have been elected."

The Respondent's argument that the statute does not cover a small

municipality overlooks that the Commonwealth Court itself held

in Appeal of Swigart, 117 Pa. Cmwlth. 84, 544 A.2d 74 (1988)

that municipal adjudication bodies must avoid unnecessary con-

flicts and commingling of incompatible functions. In Appeal of

Warminster Township, 56 D. & C. 2d 99 (C.P. Bucks Co. 1971),

the court pointed out that it is against the public policy of this

Commonwealth for an officer with the power of an appointing

official to appoint himself to a compensable position. In this case,

the appointment was not made by any resolution or action of the

Borough Council. Such an event must strictly be construed

according to law and the explicit direction of the Pennsylvania leg-

islature. Even if an exception were to be found, the appointment

itself was not a legally valid appointment because there is no writ-

ten record of the appointment in the Minutes of the Borough

Council Meetings. Nor is there any record of seeking a special dis-

pensation from the County Court for such an appointment.

Just as in the companion case, this motion was dismissed

because the trial judge thought it was filed too late, although

Pennsylvania criminal procedure requires that all pretrial motions

be decided before the trial. Since this was not a mere procedural

issue, it was fundamental error for the trial court to dismiss the

petitioner's motion, particularly without considering the merits

and the fact of timely notice of appeal.

(ii) The petitioner was denied due process of law guaranteed to

him U.S. Const., Amend. 14 when he was prosecuted by the

respondent Borough under its own ordinance for designated

offenses as misdemeanors which he did not commit. Although no

written motion addressing this point was filed, the petitioner's

lawyer brought it up at the beginning of the hearing on February

25, 2003. He asserted that the ordinance of the Borough was leg-

islatively defective and inoperative in this instance in that summa-

ry citations of this kind were not authorized under the Borough's

Code. The trial court brushed this issue aside on the ground that

many municipal governments do not write their ordinances prop-

erly. Invoking the severability provision of the ordinance, he went

ahead with the hearing anyway. The Commonwealth Court disre-

garded the Borough’s Ordinance that made the violations as "mis-

demeanors". Instead it affirmed the lower court’s abuse of discre-

tion in interpreting away the problem in a defective law and legis-

lating ad hoc for the Borough of Modena and finding the petition-

er guilty on not one but fourteen summary citations for one and

the same offense pertaining to the same property and against one

and the same petitioner under an ordinance which did not author-

ize such summary citations contrary to Pennsylvania's own

Borough Code.

Thus there is a clear conflict between Pennsylvania law and

the Borough Code and the trial judge exceeded his authority and

abused his discretion in interpreting away the conflict. It is ele-

mentary that prosecution under an illegal or defective state statute

is void. Lawrence et al. v. Texas. 539 U.S. 558, 125 S.Ct. 2412,

156 L.Ed.2d 508 (2003). Prosecutions under an illegal or defec-

tive municipal ordinance are void by analogy.

There is no dispute that the Borough Ordinance under

which petitioner was prosecuted was defective and void. Under

Section 3301 of the Pennsylvania Borough Code, 53 PS. 48301

the violation of a municipal ordinance can result in no more than

a summary conviction. Moreover, had misdemeanors been charged

as mandated by the Borough Code pursuant to the Borough

Ordinance, but contrary to Pennsylvania law, petitioner would

have been entitled to a jury trial. Accordingly, the ordinance of the

Borough of Modena should have been found to be unenforceable

against the petitioner. If the ordinance could be judicially amend-

ed, enforced and penalty raised ten fold, it follows then that the

petitioner should have had the benefit of a trial by jury. If exces-

sive and unreasonable fines are enhanced and imposed (from

$1400 to $14,000) arbitrarily, then the petitioner should not be

subject to the restriction by the State of Pennsylvania on the avail-

ability of jury trial in summary offenses as a protection against judi-

cial bias. See Blakely v. Washington, 124 S. Ct. 2531,159 L.Ed.2d

403 (U.S. 2004) wherein it was held that the Sixth Amendment

right to trial by jury is no more procedural formality, but rather, is

a fundamental reservation of power in our constitutional structure,

meant to ensure the people’s ultimate control in the judiciary. 124

S. Cr. at 2538, 2539.

If an ordinance has not been validly enacted, it leads to arbi-

trary and selective enforcement. Municipal ordinances which are

oppressive on their face are unconstitutional in violation of the

Fourteenth Amendment. See Lawton v. Steele, 152 U.S. 133, 14

S. Cr. 499, 38 L.Ed. 385 (1894). In Fuentes v. Shevin, 407 U.S.

67, 92 S.Ct.1983, 32 L.Ed.2d 556 (1972) it was held that prohi-

bition against deprivation of property without due process of law

reflects the high value, embedded in our constitutional and politi-

cal history, that we place on a person’s right to enjoy what is his,

free of governmental interference.

Under U.S. Const., Amend. 14, Pennsylvania may not

authorize deprivation of protected liberty or property interest with-

out providing procedure in connection with that deprivation that

meets the requirements of due process. Sample v. Diecks, 885 F.2d

8

1099 (3d Cir. 1989). In petitioner’s case, there was no dire neces-

sity and the actions of the Borough were not calculated to alleviate

or prevent a danger to the health and safety of any one. Under

Pennsylvania law, 18 Pa.C.S..312, de minimis offenses which do

not cause any harm to society are not to be subjected to penalties.

Here the penalties in the sentence were enhanced ten-fold. [The

fire that occurred was not a result of any building code violation,

but a direct result of the negligence and carelessness of the parents

of the two children. It was so found by the investigating authori-

ties].

B. SIXTH AND EIGHTH AMENDMENT VIOLATIONS

As set forth previously, the protection afforded by the

Bill of Rights of U.S. Const. must be provided by the States under

U.S. Const., Amend. 14. Klopper v. North Carolina, 386 U.S.

213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) and other cases cited,

supra.

The trial court upon appeal from minor judicial court

apparently arbitrarily increased the fines from $100 to $1000 on

each citation for a total increase of from $1400 to $14,000. It is

doubrful that a jury would have found any aggravating circum-

stances appropriate for such an increase over the fine. Pennsylvania

Law at 18 Pa.C.S.#312 provides:

"(a) General Rule — The court shall dismiss a prosecution

if, having regard to the nature of the conduct charged to constitute

an offense and the nature of the attendant circumstances, it finds

that the conduct of the defendant:

(1) was within a customary license or tolerance, neither expressly.

negatived by the person whose interest infringed nor inconsistent

with the purpose of the law defining the offense;

(2) did not actually cause or threaten the harm or evil sought to be

prevented by the law defining the offense or did so only to an

extent too trivial to warrant the condemnation of conviction; or

REE LECLERC POLLS STEAD NANO I A Ge POR

(3) presents such other extenuation that it cannot reasonably be

regarded as envisaged by the General Assembly or other authority

in forbidding the offense."

In Commonwealth v. Moll, 375 Pa. Super. 147, 543 A.2d

1221 (1988), the court pointed out that de mimimis section 312,

18 Pa.C.S. was intended to apply "where no harm occurs either to

the victim or to society, generally." The alleged offenses in the

cases at bar were "too trivial to warrant condemnation of convic-

tion" or hefty penalties as imposed upon the petitioner. Even if the

court were to impose a fine, it should have been limited to one and

only one citation because of the same defendant, same property,

same circumstance and same situation. v.

811 A. 2d 1 (Pa. Super. 2002).

The fines imposed in this case are excessive in violation of

U.S. Consc., Amend. 8. Arbitrariness and appearance of impro-

priety were at a maximum level in the treatment of this petitioner

who had acted with reasonable and due diligence and a harmless

delay of few days beyond 60 days was due to circumstances beyond

his control and met the test of mitigating circumstance which com-

pelled the verdict of "not guilty”.

The purpose of the Eighth Amendment was to limit the

government's power to punish. See Browning Ferris v. Kelco

Disposal, 492 U.S. 257, 267, 109 S.Ct. 2909, 2916, 106 L.Ed.2d

219 (1989). The cruel and unusual punishment clause is self-evi-

dently concerned with punishment with excessive fines. Austin v.

United States, 509 U.S. 602, 113 S. Cr. 2801, 125 L.Ed.2d 488

(1993). In U.S. v. Baj, 524 U.S. 321, 118 S.Ct. 2028, 141

L.Ed.2d 314 (1998); this Court explained the Excessive Fines

clause of the 8th Amendment which prohibits the imposition of

excessive fines. Fines are monetary payments imposed as punish-

ment. The penalties in the case at bar certainly qualify. This Court

pointed out that the amount of a forfeiture must bear some rela-

tion to the severity of the offense it is designed to punish. A stan-

dard had not previously been articulated. The Court said (at p.

10

_ ee eg

334 of 524 US.):

“We now hold that a punitive forfeiture violates the

Excessive Fines Clause if it is grossly disproportional to the gravity

of a defendant's offense."

It has been held that the Excessive Fines Clause applies to

the States. i

Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001).

In the case at bar, the petitioners offenses charged were

only what the Borough considered slow action to clean up his

property after a fire which was not his fault. In the imposition of

enhanced fines, it appears that the trial court exceeded the param-

eters of the Excessive Fines Clause of the 8th Amendment.

If Pennsylvania imposes excessive fines on the petitioner,

then it must provide for the trial by jury as required by the U.S.

Const., Amend. 6. If petitioner had been allowed a trial by jury,

the fact finding process would have been insulated from the pos-

ture or personal feeling, animus or bias of the trial judges towards

the petitioner or petitioner's father. A jury of petitioner's peers

might have found the petitioner "not guilty" resulting in punish-

ment of no fine. If petitioner had to be found guilty because of his

association with his father, then the father should have been

charged with the citations and not the petitioner. The

Commonwealth Court failed to perceive the errors of law and

abuse of discretion by the trial court in its ruling. Thus a travesty

of justice has occurred here inconsistent with American legal phi-

losophy.

C. DOUBLE JEOPARDY

The Double Jeopardy Clause of U.S. Const., Amend.

5, provides that no one shall "be subject for the same offense to be

twice put in jeopardy of life or limb." The constitutionality of the

trial court punishing the petitioner for code violations and also

holding him in contempt is thrown into doubt by this Court's

11

holding in, U.S. v. Dixon, et al., 509 U.S. 688, 133 S.Ct. 2849,

125 L.Ed.2d 556 (1993).

This petitioner was subjected to double jeopardy as is

apparent from the 8th Amendment violations by the respondent

State of Pennsylvania. In U.S. v. Ward, 448 U.S. 242, 100 S.Ct.

2636, 65 L.Ed.2d 742 (1980), it was held that where a statutory

scheme is "so punitive either in purpose or effect as to negate” the

civil label, it is deemed criminal for purposes of the constitutional

protections.

In United States v. Ogbuehi, 897 F Supp. 887 (E.D. Pa.

1995), it was held that a civil sanction, such as a forfeiture, which

goes beyond remedial purpose and can only be explained as also

serving retributive or deterrent purpose will be considered punish-

ment for double jeopardy purposes.

In the case being submitted here there were fourteen cita-

tions. In the companion case there were an additional fifty-two

citations. All sixty-four prosecutions were essentially for one and

same offense against one and the same petitioner flowing from one

and the same property. Here it can be inferred that the punishment

is not for remedial purpose but for raising revenue for a cash

strapped tiny municipality on a selective basis against a person of

Asiatic Indian ethnicity based on his national origin.

The Court's attention is drawn to Yates v. U.S., 355 U.S.

66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957), wherein the Court held it

a violation of the Double Jeopardy Clause for a trial court to find

eleven different incidents of contempt against a defendant who

refused to answer eleven separate questions related to the same gen-

eral topic on cross examination. This Court will not allow the mul-

tiplication of the criminal consequences of several occurrences of

what is essentially the same act.

12

wWw wJ

D. DEPRIVATION OF DUE PROCESS

Petitioner was deprived of due process in that required

notices by the Borough were defective. For example, it gave only 3

days to correct the demolition of a retaining wall. The notice did

not provide for a reasonable time to correct the condition com-

plained of. This was a violation by the respondent Borough (or

Pennsylvania) even though Section 106 of the Property

Maintenance Code of the Borough of Modena required that

notices of violation must provide reasonable time. In Manna v.

City of Erie, 27 Pa. Cmwlth. 396, 366 A. 2d 615 (1976) the court

held that a property owner must be given with "notice of the

action, a copy of the alleged violations, reasonable time to file a

written response, and an opportunity for an oral appearance" for a

hearing in case of disagreement. No such opportunity was provid-

ed. In fact the Borough did not even have a proper office or a sec-

retary or a manager where petitioner or his representative could call

or complain. In addition, to consolidate the state proceedings into

one case woulc have lightened the petitioner's burden of defending

against the charges and of appealing the convictions, with no detri-

ment to the borough.

It is particularly noteworthy that the petitioner herein who

has no prior history of any violation is paying the price of maxi-

mum penalties because the trial judge believed in the "small world

theory" and that a son "must have known of his father’s propensi-

ties". It is clear that this was an assumption of the trial court based

upon nothing more than ‘mere bias, speculation and surmise as

there is no evidence in the record to support this. Petitioner

should have been judged on his own merits and not penalized

because of who his father is. This question involves an issue of

immediate importance in that each citizen must be adjudged for

who he or she is and not for the actions of the other members of

his family. It is evident that the trial judge penalized the petition-

er because of previous experience with his father.

13

<P. Sash Hered. BF

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Ei smh

CONCLUSION

For the reasons outlined above, Petitioner requests that the

petition for the writ of certiorari be granted or this Court may sum-

marily reverse and remand.

Respectfully submitted,

Thomas R. Kellogg, Esquire

Strong, Stevens & Wyant

1250 W. Germantown Pike, Suite 300

Plymouth Meeting, Pa. 19462-2444

14

APPENDIX A

ORDERS AND OPIONS OF COURTS

ORDERS OF THE SUPREME COURT OF PENNSYLVANIA

No. 301 MAL 2004

Per curiam

AND NOW, this 14th day of October, 2004, the Petition

for Allowance of Appeal is hereby denied.

15

APPENDIX B

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,

v. No. 1536 C.D. 2003

Adhinayak Roby Lal, : Submitted: October 10, 2003

Appellant

BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge -

HONORABLE BONNIE BRIGANCE LEADBETTER., Judge

HONORABLE JESS S. JIULIANTE, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SMITH-RIBNER FILED: March 16, 2004

Adhinayak Roby Lal (Appellant) appeals from orders of the

Court of Common Pleas of Chester County finding him guilty of vio-

lations of the Borough of Modena’s (Borough) property maintenance

code. By order dated February 25, 2003, the trial court found

Appellant guilty of fourteen housing code violations and assessed a

$1000 fine plus costs for each violation. By opinion of April 9, 2003,

the court denied Appellant’s motion for reconsideration. !

‘Appellant raises the following questions: (1) whether the trial court erred by denying his

motion to dismiss the charges because they were improperly brought by a Borough code officer

who was also the elected Borough council president; (2) whether the trial judge erred by not

recusing himself when he had a long history of adjudicating issues involving Appellant's father

and had developed a demonstrable bias; (3) whether the court erred by conducting a hearing

when notice was defective and when the municipal ordinance under which Appellant was

charged classified the violations as misdemeanors and Pennsylvania law only allows such viola-

tions to be tried as summary offenses; (4) whether the court erred by imposing costs for each

citation when the Rules of Criminal Procedure permit costs to be imposed with respect to only

one proceeding; and (5) whether the fines were excessive in view of Appellant's good-faith efforts

to comply with the Borough’: requirements and the de minimis nature of the offenses.

16

Appellant, a physician, owns property at 19 Mortonville

Road in the Borough. Dr. Amrit La! is Appellant's father and

manages Appellant's property pursuant to a power of attorney.

On December 16, 2001, Edwin Groce, a Borough code officer

and also the Borough council president, met with Dr. Amrit Lal

and inspected Appellant’s property, pointing out several viola-

tions of the Borough's property maintenance code relating to

trash and unsafe conditions and requesting that the violations be

corrected.” On December 29, 2001, a building on the property

burned down. At the time of the fire Appellant had not yet cor-

rected the cited violations, and in January 2002 Appellant was

notified of the continuing violations and of the need to demol-

ish the destroyed building.

By letter dated February 3, 2002, Groce notified

Appellant that pursuant to Section 108.1 of the Borough’s main-

tenance code, he had fifteen days in which to submit to the

Borough a contract for demolition of the destroyed building and

clean-up of the property. The notice stated that Appellant had

twenty days in which to appeal and that Groce had personally

delivered a copy of the notice to Dr. Amrit La!. A second copy

of the notice was sent by certified mail and was received by

Appellant on February 12, 2002. On or about February 10,

2002, Groce posted a demolition notice at the property stating

that Appellant had fifteen days to submit a demolition contract

to the Borough and sixty days to complete it.

In March 2002 Dr. Amrit La! received an estimate and a

proposed contract for the demolition and clean-up from

Anthony Formica, owner of the A.S.

? January 2001, by Ordinance No. 117, the Borough council adopted as its mainte-

mance code the International Property Maintenance Code (BOCA) as published by the

International Code of Councils, Inc. Section 103.6 of the maintenance code provides for fines

of between $100 and $1000 for each day that a violation continues after the Borough has noti-

fied the landowner of the violation. Section 107.2 requires the Borough to give the landowner a

reasonable time to correct any violations.

17

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Formica Co. Dr. Amrit Lal sent the contract to the Borough for its approval; but

the contract was not signed or otherwise concluded and the Borough took no

further action. Formica contacted Groce concerning Borough requirements for

demolition permits, and he informed Groce that he had not yet received a signed

contract from Dr. Amrit Lal. By April 2002 the building had not been demolished

and the other violations had not yet been corrected; consequently, from April 3 -

18, 2002 Groce issued fifteen citations for Appellant's failure to comply with the

demolition order and to correct the other violations. The citations were filed with

the local district justice on April 19, 2002. Formica began demolition of the

building on May 10 and thereafter completed a partial clean-up.

On September 17, 2002, the district justice found Appellant guilty of

each violation and assessed a fine of $100 plus court costs for each violation. At

“the February 25, 2003 de novo hearing, counsel for Appellant presented a motion

to dismiss all of the charges asserting that because Groce was the elected Borough

council president he was prohibited from acting also as a code enforcement officer

pursuant to Section 1104 of The Borough Code, as amended, 53 P.S. §461042 The

trial court denied the motion as untimely; however, testimony. established that

Modena had a population of only 610 and therefore that Groce could properly

>The Borough Code was enacted by the Act of February 1, 1996, P-L. (1965) 1656, as

amended, 53 P.S §§45101 - 48501. Section 1104 provides, in relevant part:

Unless there is incompatibility in fact, any elective or appointive officer of

the borough shall be eligible to serve on any board, commission, bureau or other

agency created by or for the borough, or any borough office created or authorized

by statute and may accept appointments thereunder, but no mayor or member of

council shall receive compensation therefor. No elected borough official of a

borough with a population of 3,000 or more may serve as an employe of that

borough. Where there is no incompatibility in fact, and subject to the foregoing

provisions #s to compensation, appointees of council may hold two or more

18

serve simultaneously as council president and as code enforcement

officer. After hearing testimony from Groce, Formica and Dr. Amicit

Lal, the court found Appellant guilty of fourteen of the citations and

imposed a $1000 fine plus costs for each violation. Thereafter, the

court denied Appellant's petition for reconsideration, explaining that

Appellant could be held liable for the acts of his father as agent; that

Appellant's violations were of a continuing nature and the Borough

could issue continuing citations; that Appellant failed to act in a rea-

sonable time to abate the violations or to demolish the building

because Dr. Amrit Lal wanted to maintain a "memorial" to the two

children who died in the fire; and that the fines were based on a total-

ity of the agent's conduct.4

Appellant first argues that the trial court erred when it denied

Appellant’s motion to dismiss the charges when the motion was pre-

sented prior to the hearing to Borough counsel and when Section

1104 of The Borough Code, 53 PS. $46104, prohibited Groce from

issuing the citations. The decision to grant

or to deny a defendant's motion to dismiss prior to hearing is within

the sole discretion of the trial court, and its decision will not be dis-

turbed absent an abuse of discretion. Commonwealth v. Moore, 756

A.2d 64 (Pa. Super. 2000). At the time Appellant's counsel presented

the motion, witnesses for Appellant and the Borough had already

assembled and were prepared to testify; Appellant did not appear.

Under these circumstances, the court’s denial of the motion did not

“constitute an abuse of discretion. In any case, the motion lacked merit

since the evidence established that the Modena population was less

than 3000, and therefore under Section 1104 Groce was permitted to

act both as Borough council president and as a code enforcement offi-

cer. See supra n3. No evidence was introduced to suggest that Groce

otherwise violated Section 1104 or any other Code provision.

*This Court's review here is limited to determining whether the trial court commit-

ted an error of law, made necessary findings unsupported by substantial evidence or committed

an abuse of discretion. Commonwealth v. Snyder, 688 A.2d 230 (Pa. Cmwlth. 1996); De Cray

v. Zoning Hearing Bd. of Upper Saucon Township, 599 A.2d 286 (Pa. Cmwith. 1991). An abuse

of discretion is not merely an error in judgment; one must show that the trial court misapplied

the law or that the judgment exercised was unreasonable or the result of bias, prejudice or

partiality. Commonwealth v. CSX Transportation, Inc., 653 A.2d 1327 (Pa. Cmwith. 1995).

19

Appellant next argues that the trial judge, the Honorable

Thomas G. Gavin, should have sua sponte recused himself

because of prior rulings in cases involving Dr. Amrit La! and the

judge's appearance of bias or demonstration of actual bias

against Appellant and his family. No recusal motion was present-

ed to the judge, and for that reason the issue has been waived.

See Commonwealth v. Boyd, 835 A.2d 812, 820 (Pa: Super.

2003) (“It is well-settled that a party seeking recusal or disqual-

ification must raise the objection at the earliest possible

moment, or the, party will suffer the consequence of being time

barred.") (quoting Commonwealth v. Stafford, 749 A.2d 489,

501 (Pa. Super. 2000)).

Appellant also maintains that the trial court should not

have conducted a hearing on the charged violations when

Ordinance No. 117 referred to them as misdemeanors, and vio-

lations of municipal ordinances may only be prosecuted as sum-

mary offenses. Appellant is correct that under Section 3301 of

The Borough Code, 53 P.S. §48301, the violation of a munici-

pal ordinance can result in no more than a summary conviction.

It is also true that Section 106:3 of the Borough’s maintenance

code erroneously referred to violations of code as being misde-

meanors and that the court reviewed the proceedings with

Appellant, exercised the severability clause under Section 101.4

and substituted the proper summary classification for the viola-

tions. Section 3301 of The Borough Code declares, inter a/ia,

that violations of a borough ordinance are summary offenses and

shall be brought before "any justice of the peace of the bor-

ough." As the proper procedures were followed, including ade-

quate notice, Appellant was not denied due process.

Appellant next asserts that the trial court erred in impos-

ing court costs on each citation when the Rules of Criminal

Procedure and case precedents allow for only one set of costs to

be imposed. Appellant cites Commonwealth v. Snyder, 560

A.2d 165 (Pa. Super. 1989), and Commonwealth v. Shull, 811

20

A.2d 1 (Pa. Super. 2002), appeal denied, 572 Pa. 756, 818 A.2d

504 (2003), as support. In Snyder the defendant was charged

with multiple violations related to driving under the influence

and driving without a license resulting from a single traffic stop.

The charges were presented in two criminal complaints filed

nine months apart. The court denied the defendant's motion to

dismiss the second complaint, explaining that under Rule 13

1(b) and (c), Pa.R-Crim.P. 13 1(b), (©) (now Rule 505(b) and

(c)), the defendant was entitled to have the charges presented in

a single complaint and that the proper remedy was to disallow

costs on the second one. Similarly, Shull involved multiple sum-

mary and misdemeanor offenses arising from a single altercation

between two motorists. Two complaints were filed and prosecut-

ed before different district justices. The court again noted that

defendant was only entitled to relief from the second set of costs

under Rule 505(b) and (c).

Neither Snyder nor Shull applies to these proceedings.

Pa 453(b) provides that " more than one summary offense is

alleged to have been committed by one person arising from the

same incident, the matter shall proceed as a single case and the

issuing authority shall receive only one set of costs." In this case,

however, the trial court was presented with ongoing violations of

a municipality's property maintenance code, resulting in multi-

ple citations issued on separate dates and multiple summary

convictions at the distinct justice and the trial court levels. The

incident resulting in each violation was not simply the physical

conditions of the property discovered to be in violation of the

ordinance, but rather it was the continuing, daily failure to cor-

rect the violations. The trial court therefore properly imposed

costs on each of the fourteen citations.

Finally, Appellant essentially argues that the trial court

abused its discretion by imposing the maximum fine of $1000

for each violation and ignoring Appellant’s good-faith efforts to

comply with the Borough's directives. Sentencing is within the

21

discretion of the trial judge and absent an abuse of discretion,

this Court will not disturb the trial judge’s exercise of discretion.

Borough of Kennett Square v. La!, 643 A.2d 1172 (Pa. Cmwlth.

1994). In formulating a sentence, the trial court should weigh all

mitigating and aggravating factors, including the degree of actu-

al or potential harm to the public, the gravity of the offense and

the history and character of the defendant. Id. The trial judge

explained the reasons of or the maximum fines, citing the dan-

ger to the community, the Borough's efforts to secure compli-

ance and Dr. Amrit Lal’s failure to act within a reasonable time

due in part to his decision to allow a "memorial" to the deceased

children. Although significant, the Court cannot say that the

fines are so excessive that they constitute an abuse of the trial

judge’s discretion. Finding no reversible error, the Court accord-

ingly affirms the orders of the Trial Court.

DORIS A. SMITH-RIBNER, Judge

> Section 1725.1 of the Judicial Code, as amended, 42 P& C.S. § 1725.1, provides

that “the costs to be charged by the minor judiciary or by the court of common pleas where

appropriate in every criminal case ... shall be as follows: (1) Summary conviction, except motor

vehicle cases

22

APPENDIX C

IN THE COURT OF COMMON PLEAS OF AR -'7 2008

CHESTER COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

BOROUGH OF MODENA °

Plaintiff 4 CRIMINAL DIVISION

vs. , CASE NO. 5556-02 through

” 5568-02 and

? 36-03, 37-03

ADHINAYAK RODY LAL :

Defendant ____*

Pn = - satin Sethi pated

novo in the above captioned Summary Appeal before this Honorable Court, it is

hereby ORDERED and DECREED that Defendant, ADHINAYAK RODY LAL is

found guilty of violations of Borough Municipal Code Ordinance number 117,

section 110 et seq. and 305 et seq., ond fs ORDERED to pay Snes in the amount

of $1,000.00 per violation ($14,000.00 total) plus the court costs,

- Citation number 1 P 1200215-2, appearing at 5559-02 Is hereby withdrawn

by the Borough of Modena.

BY THE COURT:

2 -«

4 THOMAS G. GAVEIN J

ao

23

COMMONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMMON PLEAS

CHESTER COUNTY, PENNSYLVANIA

- NOS. 5556-02 - 5568-02; 36-03 - 37-03

ADHINAYAK ROBY LAL : CRIMINALACTION =

ae

urs

OPINION ei

ee

This writer is a firm believer in the “small world” theory and “the'more things thange, the

w

more they remain the same." Dr. Amrit Lal is well known im the community, the Court of

Common Pleas of Chester County and both the Superior Court and Commonwealth Court of

Pennsylvania for his tenacity in defending against municipal code violations. This information is

provided simply to set the tone, ie., that Adhinayak Roby Lal MUST HAVE KNOWN of his

father's propensities simply from what appears in the general media, if not from having lived

with him through the many years of litigation in which he has engaged.

DISCUSSION

Dr. Adhinayak Lal sought reconsideration of the sentence imposed upon him as a result

of various housing code violations in the Borough of Modena, Chester County, Pennsylvania.

Dr. Adhinayak Lal first asserts in the Petition for Reconsideration that he was, “held responsible

for the actions of Amrit Lal which were done without his knowledge." The record establishes

that Dr. Adhinayak Lal gave his father a Power of Attorney over the property and thus, in my

24

view, ceded management of same to his father. As previously indicated, his father's reputation re

property management is well known. A principal is liable for the actions of his agent undertaken

in the scope of the principal's business. Clearly, Dr. Amrit Lal was acting within the scope of his

management duties at all times material to these proceedings and therefore his son, as principal,

is liable for his father’s actions. If Dr. Adhinayak Lal was ignorant of his father’s actions, that

ignorance is not a defense.

Another reason given for reconsideration is that the borough cited the “same underlying

violations on a daily basis." A municipality has the choice in the face of a continuing violation

of either looking the other way or citing on a recurring basis. As the violation is a recurring one,

$0 too should be the citations. I hasten to point out that the record established that the borough

went through the usual ritual with Dr. Amrit Lal of affording multiple opportunities to cure the

defects BEFORE CITATIONS WERE ISSUED. Accordingly, this averment provides no basis

for reconsideration.

Grounds C and D can be considered together as they essentially go to the issue of the fine

imposed and the reason for the fine. The record more than adequately establishes the physical

condition of the property and the danger it presented to the community. The record also

establishes the efforts the borough made to effectuate the necessary remedial action and the utter

failure of Dr. Amrit Lal to act reasonably within a reasonable time frame. In fact, Dr. Amrit Lal

had the gall to assert that the premises were not taken down in a more timely fashion as the

ruined building was, “a memorial” to the persons who had died therein. Using a tragic

25

connection with property clean up, whichis the subject of the this action. The

Borough of Modena, its agents, servants and werkmen are-to account to this

Honorable Court for all sums spent in connection with the-clean up-and rendering

safe of the premises Known as 19 Mortonville Road, Medene Borough, Chester

County, Pa. The balance of the $5,000.06, if any, shail be-returned-to the Clerk

of Court's account.

The escrow account established by the Clerk of Courts shalt be interest.

bearing, it passible, with interest to the. prevailing party. Ht ie understood that if,

after thitty (30) days, from January 16, 2003, ne appeatis filled by the Defendant,

the balance of the account shall be released fo the Borough of Modena to apply

against the outstanding balance of fines, court costs, and interest that may be due

to the Borough of Modena, At the time-the- balance of funds are released, an.

accounting shalt be rendered to the Defendant to indicate what, if any, additional

if the Defendant prevails, then the-balance-of fhe Clerk of Court's escrow _

account shall be released to the Defendant, lees-the-sums subtracted by the

BY THE COURT:

THOMAS G. GAVEIN J

26

APPENDIX D:

CONSTITUTIONAL AMENDMENTS

AMENDMENT V:

No person shell... be deprived of life, liberty, or property, with-

out due process of law, nor shall private property be taken -for

public use, without just compensation.

AMENDMENT VI:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which dis-

trict shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

AMENDMENT VIII:

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.

AMENDMENT XIV:

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 which shall abridge the privileges or immunities of citi-

zens 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.

27

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

A. Roby Lal, Petitioner

vs.

COMMONWEALTH OF PENNSYLVANIA,

(BOROUGH OF MODENA), Respondent

PROOF OF SERVICE

Thomas R. Kellogg, Esquire, a member of the Bar of the Supreme

Court of the United States, hereby certifies that on 7th day of May, 2005 he

caused to be served by United States first class mail, postage prepaid, three

copies of the Petition for a Writ of Certiorari in this matter to the attorney

for Respondent at the address set forth below:

Hudson L. Voltz, Esquire

525 Highlands Blvd.

Coatesville, Pa. 19320-5810

(610) 466-9500

This satisfies the requirements of Supreme Court Rule 29(3).

Thomas R. Kellogg, Esquire

Strong Stevens and Wyant

1250 W. Germantown Pike, Suite 300

Plymouth Meeting, Pa. 19462-2444.

28