Petition for Writ of Certiorari — Lal v. Pennsylvania

eme Court, U.S.

/ FILED

041523 MAR S 2008

No.

: OFFI GP THE CLIP

: IN THE

Supreme Court Of The Guited States

A. ROBY LAL,

Petitioner

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF PENNSYLVANIA

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

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?

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?

Was the Petitioner denied the due process of law guaranteed to

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

required an unreasonably large sum (more than three times the

amount of the fine imposed by the district justice) to be paid

into court under threat of contempt, (b) when the judge

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

motions and on the pretense of his not being present 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?

PARTIES

The caption contains the name of all parties to the proceeding

below.

TABLE OF CONTENTS

QUESTION. PRESEDEE ERD .cisccsnsssddenidalcumenscaneiiens-

PARTIOS oc i

OPDOM SEINE on 1

URI ey 2

CONSTITUTION AND STATUTES INVOLVED ..0+..see--0 2

STATEMENT OF THE CASE :cs..csescossecossesossscsceccssesoseccsvsce 2

REASONS FOR GRANTING THE WRIT ....-cssessssesssueesseees 6

COREL 8 ee 15

i

INDEX TO APPENDICES

APPENDIX A

1. Orders of the Supreme Court of Pennsylvania

dated August 9, 2004, October 7, 2004

APPENDIX B

Case 1-Opinion of the Commonwealth Court of Pennsylvania

dated January 29, 2004

APPENDIX C

Orders and Opinions of the trial courts:

Order dated November 27, 2002

Order dated January 17, 2003

’ Opinion by Judge Juan R. Sanchez

dated March 27, 2003

APPENDIX D:

CONSTITUTIONAL AMENDMENTS:

AMENDMENT V

AMENDMENT VI

AMENDMENT VIII

AMENDMENT XIV

TABLE OF AUTHORITIES CITED

CASES:

Appeal of Sweigart

117 Pa. Cmwlth. 84, 544 A. 2d 74 (1988) ........cceeceesseesseeees 8

Appeal of Warminster Township

56 D & C. 2d 99 (C.B Backs Co. 1971) ...ccci.ciccccssccsssccsccccscess 8

Austin v. United States

509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed 2d 488 (U.S. 1993)....11

Blakely v. Washington

124 S. Cr. 2531, 159 L.Ed.2d 403 (U.S. 2004).......5.0000000000.0.. 9

492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)........ 11

Commonwealth v. McConley

734 A.26 724 (Pe. Canetti. DOGG) cccccccencescscinsonccicsriichetnd’ iti 14

Commonwealth v. Mesler

732 A.24 21 Ca. Comwllthe. 1999) ...0..<ccccsccccccseccecesbeckeicbidsseiis 14

Commonwealth v. Moll

375 Pa. Super. 147, 543 A.2d 1221 (1988)...ccccsesscssesssseesseeeen 11

Commonwealth v. Shull

DET FEE Ge a Ba ia vc ncicnnnicsnicsbiesersicsienataes 11

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

532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)........ 12

Fuentes v. Shevin

407 U.S. 67, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972)............04 9

eee

; v. Weinwr;

372 U.S. 535, 83 S.Ct. 792, 9 L.Ed.2d 799 CGB a tiieinsids ot 6

111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 5691884) .cccccccccccccccoeesees 6

Handi v. Rumsfeld

124 S.Ct. 2633, 159 L.Ed.2d 578 A: 2008) on 7

Klopper v. North Carolina

386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 SGT itis. 6, 10

Lawton v. Steel

152 U.S. 133, 14 S. Cr. 499, 38 L.Ed. 385 eR Se SaaS 9

Manna vy. City of Erie

27 Pa. Cmwilth. 396, 366 A. 2d 615 COL 9, > A ane Re 14

M v.

424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 4), * ERIE 7

McMahon v. McMahon

706 A. 26 350 We. Stipes, 1998) ee es ee 15

Pointe v. Texas

380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965 sticsinisivends 6 -

Sample v. Diecks

885 E2d 1099 (3d Cir. DDG) ooccviceccsciscstisdeccedesen, eee a 10

U.S. v. Baj

524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998)........ 12

509 U.S. 688, 133 S.Ct. 2849, 125 L.Ed.2d 556 (1993)........ 13

Vv

orn

U. S. v. Ogbuehi

897 F. Supp. 887 (E.D. Pa. 1995) ......scccssecsssecsesnesssneessnceenneees 13

U.S. v. Ward

448 U.S. 242, 100 S. Cr. 2636, 65 L.Ed.2d 742 (1980)......... 13

Yates v. U.S.

355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957).................... 13

CONSTITUTIONS

United States Constitution

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ORDINANCES

Property Maintenance Code of the Borough of Modena, PA......

RULES

Pa RA len, Rte SOD wicscctnicecistesctsnbatstecssictinse mtadindniedie toa

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 WRIT OF CERTIORARI

TO THE COMMONWEALTH COURT

OF THE COMMONWEALTH OF PENNSYLVANIA

INTRODUCTION

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

issue to review the judgments and opinions of the Commonwealth Court of

Pennsylvania, with respect to which the Supreme Court of Pennsylvania

denied allowance of appeal, including, without limitation, orders denying

leave to file petitions nunc pro tunc, orders denying consolidation of two

proceedings which are the subject of this petition for a writ of certiorari. 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 orders of the Supreme Court of Pennsylvania and the opinions of the

Commonwealth Court of Pennsylvania appear in Appendix A and B to this

i

JURISDICTION

The Pennsylvania Supreme Court declined to accept a

Petition for allowance of appeal because of late filing but permitted

the filing of a Petition for leave to file a petition for allowance of

appeal nunc pro tunc. The nunc pro tunc petition was filed but

denied along with a motion for reargument/reconsideration. These

petitions were denied by the Supreme Court of Pennsylvania by

Orders dated August 9 and 2004, October 7, 2004. Upon

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

to file the present Petition for a Writ of Certiorari by March 6,

2005. A petition was filed, but because of a certain discrepancy in

the format of the petition, which contained two cases in one and

the same petition, the petition was returned and petitioner was

allowed to submit two separate petitions on or before May 9,

2005.This Court's jurisdiction is invoked under Title 28, U.S.C. #

1257 (a).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V, Amendment VI, Amendment VIII,

Amendment XIV, Appear in Appendix C.

In addition the following statutory provisions are

particularly relevant:

53 PS. 48307

65 PS. 13

18 PC.S.A #110

18 PC.S.A #312

STATEMENT OF THE CASE

Lower Court decisions: November 27, 2002 and January 16, 2003

Appellate Court decisions: January 29, 2004, March 31, 2004

Pa. Supreme Court Orders: August 9, 2004 and October 7, 2004.

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

2

experienced 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 can be inferred

that the borough selectively targeted petitioner for the purpose of

raising revenue through the writing of citations. The citations were

written by the Borough Council President (Mr. Groce) who did

not have legal authority under Pennsylvania law to act as code offi-

cer and write citations.

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 children perished. Because of this tragedy, neigh-

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

memoriam. 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.

Mr. Groce would sit at home and write the citations and

add the dates in sequence and then file them with the local district

court. When a hearing date was set for these citations, petitioner

was not notified and the local court found petitioner guilty of 52

separate violations in absentia on May 16, 2002. Petitioner con- -

tends that he filed a TIMELY Notice of Appeal to the Chester

County Common Pleas Court on June 14, 2002 which was with-

in the required thirty day appeal period. Petitioner contends that

the court clerk made an error in docketing the notice and that he

brought this fact to the attention of the Commonwealth Court

with copies of the Notice of Appeal bearing the date within 30

days. However this was overlooked and thus constituted a grievous

error of law.

Petitioner had retained the services of an attorney, Samuel

Stretton, Esquire who filed a Motion to dismiss all the citations

because of inherent conflict in the two positions being performed

by one and the same person, an elected Borough Council President

and a code official who is supposed to be a duly appointed employ-

ee with appropriate compensation. There was never a hearing or

a fact-finding proceeding on the merits of the Motion to Dismiss

filed by petitioner's attorney.

On the date of the hearing on November 27, 2002, the

petitioner was not asked to be present in the court by his attorney

because the pre-trial motion to dismiss the citations had not been

heard by the court. Nevertheless, the court summarily dismissed

the appeal because the petitioner, himself, was not present. He was

only represented by his father who had been property-managing

agent and by his attorney. The trial. imposed a fine of $5,200.00

on all 52 of the citations but allowed petitioner's attorney Stretton

to file a Motion for the court to accept the appeal nunc pro tunc

because the original notice of appeal was not filed by the petition-

er himself, albeit filed in a timely manner.

Meanwhile, the Borough's attorney filed a Motion for

Contempt because $5000.00 had not been paid. The attorney for

the Borough by a letter had informed petitioner's attorney that on

the new date of hearing set for January 16, 2003, it would not be

necessary to have the petitioner present because of the need to dis-

pose of outstanding motions. For that reason, attorney Stretton

did not require the petitioner to be present for the hearing.

On appeal, the Commonwealth Court of Pennsylvania

affirmed the lower court and issued an opinion dated January 29,

2004. Upon application, reconsideration was denied on March 31,

2004.

Petitions for allowance of appeal to the Supreme Court of

Pennsylvania were filed a two days after the expiration of the thir-

ty day appeal period. The late filing was due to the hospitalization

of the petitioner's father a week before the due date. The

Pennsylvania Supreme Court allowed the petitioner to file a peti-

tion to allow the filing of a petition for allowance of appeal nunc

pro tunc, but the petition and a motion for reargument/reconsid-

eration were denied by Orders dated August 9, 2004, October 7,

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 a companion matter. It is apparent

that there is 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 traceable to the nation-

al origin 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

(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 578

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

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

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

Amdt. 5. Under Mathews v. Eldridge, 424 US. 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) The 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 cita-

tions was made due to the dual and conflicting functions of the

Borough Council President and a code enforcement officer. The

trial court did not rule on the motion in contravention of the Pa.

Rules of Criminal Procedure, Rule 580 which provides that “all

pretrial motions shall be determined before trial. Trial shall be

postponed by the court for the determination of pretrial motions,

if necessary." This rule is unequivocal and does not provide an

exception even for motions considered late by the trial judge.

This pretrial motion to dismiss all the citations went to the under-

lying 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

7

'

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."

In addition, 53 P.S. 46104 prohibits an official acting in a

dual capacity where there is incompatibility in fact. The

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

municipality overlooks that the Commonwealth Court itself held

in Appeal of Swigart, 544 A.2d 74 (Pa.Cmwlth.1988) that munic-

ipa adjudication bodies must avoid unnecessary conflicts and com-

mingling of incompatible functions. In Appeal of Warminster

Township, 56 D. & C. 2d 99 (Bucks County Court 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.

The Court’s attention is respectfully drawn to the fact that

because of procedural niceties, the merits of the petitioner's claim

that the code officer’s actions were illegal and unauthorized under

Pennsylvania law were never heard nor decided.

(ii) The petitioner was denied due process of law guaran-

teed to him by U.S. Const., Amdt. 14 when he was prosecuted by

the respondent Borough under its own ordinance for designated

offenses misdemeanors which he did not commit. The ordinance

8

ie)

of the Borough was legislatively defective and inoperative in this

instance in that summary citations of this kind were not authorized

under the Borough's Code.

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,

(as distinguished from Modena Code), 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(s) of the Borough of Modena

should have been found to be unenforceable against the petitioner.

If the ordinance could be judicially amended, enforced and penal-

ty raised ten fold, it follows then that the petitioner should have the

benefit of a trial by jury. If excessive and unreasonable fines are to

be imposed, then the petitioner should not be denied a jury trial in

summary offenses as a protection against judicial bias. See

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 reser-

vation of power in our constitutional structure, meant to ensure the

people's ultimate control in the judiciary. 124 S. Ct. at 2538, 2539.

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

arbitrary 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. Ct. 499 (1894). In Fuentes v. Shevin, 407 U.S. 67, 92

S.Ct.1983, 32 L.Ed.2d 556 (1972) it was held that prohibition

against deprivation of property without due process of law reflects

the high value, embedded in our constitutional and political histo-

ry, that we place on a person's right to enjoy what is his, free of gov-

ernmental interference.

Under the Fourteenth Amendment, 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

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. |

The Court’s attention is again respectfully drawn to the

fact that the petitioner never had an opportunity to present his

arguments with respect to the legality of the ordinance to the courts

below because of procedural niceties which were resolved against

him. The trial court never reached the substance of his arguments

which resulted in an obvious deprivation of due process of law.

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. |

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

"(a) General Rule — The court shall dismiss a prosecution if, hav-

ing 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

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

regarded as envisaged by the General Assembly or other authority

in forbidding the offense."

ee oe ae

10

=m

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

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

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" much less the hefty penalties imposed upon the petitioner.

Even if the court were to impose a fine, it should have been limit-

ed to one and only one citation because of the same defendant,

same property, same circumstance and same situation.

Commonwealth vy. Shull. 811 A. 2d 1 (Pa. Super. 2002).

The monetary penalties imposed in this case are excessive

in violation of U.S. Const., Amdt, 8. Threatening to find the peti-

tioner in contempt without the kind of due process normally pro-

vided by the state and without serious fault simply to extract

$18,000.00 is oppressive and a violation of the 8th Amendment.

There is no defensible rationale for the increase of the penalty of

$5,200.00 in the November 27, 2001 order to $18,000.00 on

January 16, 2002. Arbitrariness and appearance of impropriety

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

had acted with reasonable and due diligence through his represen-

tatives who had his power of attorney or had duly entered his

appearance on behalf of the petitioner. As argued below, it was

error to require the petitioner to be present when his duly author-

ized attorney, a member of the bar, was present on his behalf.

The purpose of the Eighth Amendment was to limit the

government's power to punish. See i

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. Ct. 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

11

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.

334 of 524 U.S.):

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

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, and to fail to appear

at a hearing wherein his representative, a close relative with

power of attorney and a member of the bar both appeared on his

behalf. The petitioner is a medical doctor and had a crowded

schedule of medical appointments in State College, PA, at least

a three hour drive from the Chester County Courthouse. In the

imposition of the penalty imposed it appears that the trial court

exceeded the parameters of the Excessive Fines Clause of the 8th

Amendment.

As argued in Section A, above, since the state chose to

impose excessive monetary penalties on the petitioner, then it

should have provided him the protection of a trial by jury as

required by the Sixth Amendment. Furthermore, since the

offenses for which he was tried were, under the ordinance

involved, misdemeanors, it was error not to afford a trial by jury.

The state ignored the defect in the statute which should have

prevented a trial at all, and then compounded the problem by

not allowing the procedural safeguard which was implied by the

statute as written.

12

“a @&

C. DOUBLE JEOPARDY

The Double Jeopardy Clause of U.S. Const., Amdt. 5, pro-

vides 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 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

punishment for double jeopardy purposes.

Clearly, in the case being submitted here, all the fifty-

two prosecutions are 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

13

find eleven different incidents of contempt against a defendant

who refused to answer eleven separate questions related to the

same general topic on cross examination. This Court will not

allow the multiplication of the criminal consequences of several

occurrences of what is essentially the same act.

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

complained 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 appear-

ance” for a hearing in case of disagreement. No such opportu-

nity was provided. In fact the Borough did not even have a prop-

er office or a secretary or a manager where petitioner or his rep-

resentative could call or complain.

The trial court's decision to dismiss the appeal from the

local district court because the petitioner was not present in the

court failed to recognize that petitioner was represented by an

attorney and by his father who held a general power of attorney.

In reviewing this matter, the Commonwealth Court of

Pennsylvania contradicted its own ruling or teaching in

Commonwealth v. McConley, 754 A.2d 724 (Pa.Cmwith.

2000) and Commonwealth v. Mesler, 732 A.2d 21

(Pa.;Cmwlth. 1999). A double and disparate standard was

applied to the petitioner.

Similarly, in the contempt proceeding which was finally ren-

dered moot because of the petitioner's father’s agreement to pay

$18,000 into court the usual five step procedure set forth in

McMahon v. McMahon, 706 A.2d 350 (Pa. Super. 1998) for

such purposes was not followed by failing to proceed with a rule

to show cause, scheduling another hearing for the petitioner to

prepare. It appears that if the petitioner is of a diverse ethnici-

ty, he does not have the benefit of the plain language of the law

being applied. That is disparate treatment, denial of due process

and equal protection.

Finally, to consolidate the state proceedings into one

case would have lightened the petitioner's burden of defending

against the charges and of appealing the convictions, with no

detriment to the borough as provided in 18 P-C.S. #110.

CONCLUSION

For the reasons outlined above, Petitioner requests that

the petition for the writ of certiorari be granted or the Court

may summarily reverse and remand.

Respectfully submitted,

Thomas R. Kellogg, Esquire

Strong, Stevens & Wyant

1250 W. Germantown Pike,

Suite 300

Plymouth Meeting, Pa. 19462-2444

15

POL IES MT a a

APPENDIX A

ORDERS AND OPINIONS OF COURTS

ORDERS OF THE SUPREME COURT OF PENNSYLVANIA

No. 86 MM 2004

PER CURIAM

AND NOW, this 9th day of August 2004, the Petition for

Leave to File Petition for Allowance of Appeal Nunc Pro Tunc and

request for Consolidation are denied.

No. 86 MM 2004

PER CURIAM

AND NOW, this 7th day of October, 2004, the Application

for Reconsideration/Reargument is denied.

16

APPENDIX B

OPINIONS OF THE COMMONWEALTH COURT:

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, _ :

v. : No. 1634 C.D. 2003

Adhinayak Roby Lal, : Submitted: November 21, 2003

Appellant

BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge

HONORABLE BONNIE BRIGANCE LEADBEUER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE JULIANTE FILED: January 29, 2004

Adhinayak Roby Lal (Lal) appeals from the January 17,

2003 order of the Court of Common Pleas of Chester County

(trial court) that denied Lal’s petition to reinstate appeal nunc pro

tunc. We affirm. Lal was cited by the Borough of Modena (Borough)

for 52 violations of Borough Ordinance 305.1 due to the

accumulation of trash and rubbish on his property. By notice dated

April 5, 2002, the District Justice informed Lal that a hearing on

the charges would be held on May 16, 2002. On that date, the

District Justice found Lal guilty in absentia) and sentenced him to pay

fines within 30 days. On July 26, 2002, Lal filed an appeal with

the trial court and a hearing was set for November 27, 2002.

On November 25, 2002, Lal filed a motion to

'The Borough contends that Lal sent his father, Amrit, to appear at the District Justice bear-

ing on his behalf. Over the objection of the Borough, the District Justice proceeded with the

hearing and found Lal guilty. In his Order Imposing Sentence, the District Justice checked the

box indicating that “ 5/16/02, your trial on the above charge(s) was held in the Magisterial

District Court listed above in your absence pursuant to Pa.R.Crim.P. 455." (C.R.10)

17

dismiss, alleging a conflict of interest where the Borough’s Code

Enforcement Officer was also the Borough Council president.

At the November 27, 2002 hearing, Lal’s father, Amrit, testified

that although the subject property was titled to his son, he main-

tained the property and had power of attorney to manage his

son's business affairs. He further stated that he would take full

responsibility for any monetary verdict the trial court might

enter. In addition to alleging that he failed to receive notice of

the District Justice hearing, Amrit stated that his son was unable

to attend the hearing because of professional obligations in

another county.

At the conclusion of the hearing, the trial court stated

that it was not convinced that Amrit had legal authority to act

on behalf of Lal or had standing to participate in the proceed-

ings. Therefore, the trial court gave Amrit the opportunity to

present to the court a power of attorney later that day. Amrit

failed to do so; consequently, the trial court struck Lal’s appeal

and ordered payment of the fines imposed by the District

Justice. Additionally, the trial court indicated to the parties that

it would entertain a motion to reinstate the appeal because it was

not clear whether Lal was notified of the November 27, 2002

hearing.

On December 19, 2002, Lal filed a motion to reinstate

the appeal and a hearing was scheduled for January 16, 2003.

The Borough also filed a motion for contempt of court on the

ground that Lal failed to pay the imposed fines. Both matters

were to be heard at the same time. On January 16, 2003, how-

ever, Lal once again failed to appear and his father Amrit attend-

ed the hearing.

The trial court dismissed Lal’s petition to reinstate the

appeal and proceeded to consider the Borough's petition for

contempt. After an off-the-record discussion, counsel indicated

that Amrit had obtained a cashier’s check in the amount of

$18,000, which was remitted to the Clerk of Courts.

18

Accordingly, the trial court entered an order on January

17, 2003 denying Lal’s petition to reinstate the appeal and find-

ing the Borough's motion for contempt of court moot by virtue

of Amrit's remittance of $18,000 to the Clerk of Courts. Five

thousand dollars of the $18,000 was to be released to the

Borough in order to allow it to clean the property. If Lal chose

not to appeal the trial court’s order, then the remaining monies

were to be released to the Borough to apply toward the out-

standing fines, court costs and interest that may be due to the

Borough. The order further provided that should Lal prevail on

appeal, he was entitled to the remaining funds.

In this appeal, we need only address the issue of whether

Lal’s appeal of the District Justice’s May 16, 2002 order was

timely. We conclude that it was not and, therefore, affirm the

trial court's order.

Section 5571(b) of the Judicial Code, 42 Pa. C.S. §

5571(b), provides that an appeal from a tribunal or other gov-

ernment unit must be commenced within 30 days after entry of

the order from which the appeal is taken. Presently, the order

from which the appeal was taken was the District Justice’s May

16, 2002 order. Hence, Lal’s appeal to the trial court had to be

filed on or before June 17, 2002.2

Lal did not appeal the District Justice’s May 16, 2002

order until July 16, 2002, well beyond the 30-day appeal peri-

od. Thus, the appeal was untimely. Nonetheless, the trial court

gave Lal an opportunity to demonstrate that an appeal nunc pro

tunc was warranted. In Criss v. Wise, 566 Pa. 437, 442-443, 781

A.2d 1156, 1159 (2001), the Supreme Court set forth the cur-

rent principles governing nunc pro tunc appeals:

2. June 15, 2002 was a Saturday and pursuant to Pa. R.C.P. No. 106(b), whenever the last day

of any period falls on Saturday or Sunday, such day is omitted from the computation of time.

19

[\X’] hen a party has filed an untimely notice of

appeal ... [ may grant a party equitable relief in the form

of an appeal nunc pro tunc in certain extraordinary cir-

cumstances. Initially, an appeal nunc pro tunc was lim-

ited to circumstances in which a party failed to file a

timely notice of appeal as a result of fraud or a break-

down in the court's operations. In Bass v.

Commonwealth [Pennsylvania, Bureau of Corrections],

485 Pa. 256, 401 A.2d 1133 (1979), however, this

Court found that where an appellant, an appellant’s

counsel, or an agent of appellant's counsel has failed to

file a notice of appeal on time due to non- negligent cir-

cumstances, the appellant should not lose his day in

court. Therefore, the Bass Court expanded the limited

exceptions for allowing an appeal nunc pro tunc to

permit such an appeal where the appellant proves that:

(1) the appellant’s notice of appeal was filed late as a

result of non-negligent circumstances, either as they

relate to the appellant or the appellant’s counsel; (2) the

appellant filed the notice of appeal shortly after the

expiration date; and (3) the appellee was not prejudiced

by the delay.

(Citations omitted.) ,

At the November 27, 2002 hearing, Amrit stated that he was

the manager of the subject property, that he had power of attorney to

act on Lal’s behalf’ and that Lal was unaware of the November 27

hearing. Nevertheless, Lal remained the record owner of the subject

property and there was no showing that the Borough's citations were

not properly mailed to him, that he did not receive notice of the hear-

ing before the District Justice or that the District Justice’s order

3 As previously noted, the crial court gave Amrit an opportunity to present the power

of attorney; however, it was never produced. Thus, the trial court correctly concluded that Amrit,

who had no legal interest in the subject property, did not have standing to participate in the hear-

ing. Moreover, counsel was apparently retained by Amrit to represent Lal's interests and was told

to contact only Amrit only. (R.R. 17) It appears that counsel never met Lal or was retained by

him. Notwithstanding, the only evidence elicited by counsel was that Amrit did not receive

notice of the District Justice hearing. (/d.)

20

of sentence was incorrectly addressed. Thus, Lal failed to demonstrate

that his late appeal of the District Justice’s order was due to non-neg-

ligent circumstances, fraud or a breakdown in the court's operations.

Criss.

Although Lal was given a second opportunity at the January

2003 hearing to show that a nunc pro tunc appeal was warranted, Lal

again failed to demonstrate the reasons for his failure to timely appeal

the District Justice’s May 16, 2002 order. Regardless of his reasons for

failing to attend the January 17, 2003 hearing‘, neither Lal’s counsel

nor his father attempted to proffer an explanation as to why Lal did

not timely appeal the District Justice’s May 16, 2002 order. Without

an explanation, the trial court could not determine whether a nunc

pro tunc appeal was justified. Accordingly, we conclude that the trial

court did not err in denying Lal’s petition to reinstate an appeal nunc

pro tunc. |

Lal further contends that the trial court failed to follow prop-

er procedure in resolving the Borough's motion for contempt of court.

However, as the trial court noted, the motion for contempt was ren-

dered moot by payment of $18,000 to the Clerk of Courts.

Finally, Lal maintains that the trial court erred in denying his

petition to reinstate the appeal inasmuch as there was an outstanding

motion to dismiss the charges on the ground that a conflict of inter-

est existed because the Borough Code Enforcement Officer also served

as Borough Council president. Where an appeal is not timely filed, the

court is divested of jurisdiction and may not address the

“Ac the hearing, counsel offered a letter from La! requesting a continuance because

he had professional obligations in Centre County, where he is a physician. Although the trial

court did not specifically rule on the request, it was obviously denied because the trial court pro-

ceeded to hear the Borough's motion for contempt of court. The court has broad discretion in

granting a continuance, see Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022 (Pa.

Super. 2001), and we find no abuse of discretion inasmuch as the January 17, 2003 hearing was

Lal’s second opportunity to appeal the District's Justice's order and the Borough's witnesses were

present to testify at both hearings.

21

underlying merits of a case. See Lajevic v. Department of

Transportation, Bureau of Driver Licensing, 718 A.2d 371 (Pa.

Cmwilth. 1998). Hence, the trial court did not have the power to

entertain Lal’s motion to dismiss the charges after the petition to

appeal nunc pro tunc was denied.

Based on the foregoing, the order of the trial court is affirmed.

JESS S. JULIANTE, Senior Judge

APPENDIX C

HUDSON L. VOLTZ, ESQUIRE Attorney for: Movant, Berough of Modena,

Attomey |.D. No: 32272 Commenweaith of Pennsytvania

780 East Market Street, Suite 280

West Chestér, PA 19382 ~

(610)429-1330

IN THE COURT OF COMMON PLEAS OF

CHESTER COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, .

BOROUGH OF MODENA bd

Plaintiff 46 CRIMINAL DIVISION

VS. ’ CASE-NO. 3646-02 through

Pd 3724-02

ADHINAYAK RODY CAL ¥

Defend >

Modena, Conmormath f Prneanee Apeat Ant Ra and-after

hereby ORDERED AND: DECREED that Motion is prairies! arid JUdyeneitt shall be Menderes iA

favor of the: Bamugh ef ak Rady Lal for the sume granted by the District

within fifteerr (15) days front the date of this Order.

BY THE-COURT:

JUAN R. SANCHES

23

HUDSON-L. VOLTZ, ESQUIRE Solicitor for: Borough of Modena

Attomey t.D. No.: 32272

780 East Market Street, Suite 280

West Chester, PA 19382 —

(61029-4330. Fax (640-428-1160

IN THE COURT OF COMMON-PLEAS OF

COMMONWEALTH OF PENNSYLVANIA,

BOROUGH OF MODENA :

Ptaintift CRIMINAL DIVISION

vs. * GASE-NO. 3646-02 through

. 3724-02

ADHINAYAK ROBY LAL ‘5

—

a 0

Oa ef

ere 2

> & 3S ORDER

4 —- +o :

“ ANDLNGW Ee 17 Fray of Jarvaary, 2003, after argument in open

Court and. s in Chambers, it is hereby ORDERED afd DECREED that

s Pelition to Reinstate Appeatis hereby DENIED. Plaintiff's Petition to

hold Defendant in Contempt is rendered moot by Defendant's. payment of

$18,000.00 to the Clerk of Courts, said sum to be used as security for payment of

fines and costs te be decided: by this Honorable Couit.

it is: further ORDERED and DECREED that from the $15,000.00 posted by

Defendant with the-Clerk ef Courts, the Clerk is directed to release to the Borough

at Modena-upon thes “squest a sunrnot to exceed $5,000.00 for use in

24

connection with property clean-up, which is the subject of the this action. The

Borough of Modena, fis agents, servants and workmen 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. Modena Borough, Chester

County, Pa. . The balance of the $5,000.00, if any, shail be-returned to the Clerk

ofCourt’s account.

The escrow account established by the Clerk of Courts shall be interest _

bearing, if passibie, with Interest fo the prevailing party. it Is understood that if,

after thirty (30) days, from January 16, 2003, ne appeal is filed by the Defendant,

the balance of the accaunt shail be released to 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 shall be rendered to the Defendant to indicate whet, if any, additional

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

account shall be released to the Defendant, less the sums subtracted by the

BY THE COURT:

JUAN R. SANCHES

25

EDEN DRIES AT See Ae ok i.

COMMONWEALTH OF PENNSYLVANIA

: INTHE COURT OF COMMON PLEAS

‘Y

: CHESTER COUNTY, PENNSYLVANIA

ADHINAYAK ROBY LAE

: NO. 3646-02 through 3724-02

: CRIMINAL ACTION

C20

© *

“itd.

Hudson L. Voltz, Esquire, for the Borough ef Modena. Ys

Thomas Ost-Prisco, Esquire, Assistant District Attorney for the

Adhinayak Roby Lal, Pro Se

>

ange

4

Oe es ae ee

agate

Leta Loki

iis

By: Séncheg, J. March 777 cas

On January 17, 2003, this Court denied. Defendant Adhinayak Lal’s Petition to Reinstate

Appeal Nunc Pro Tunc from the judgment entéred By the District Court. On February 13; 2003,

Defendant Adhineyak Lal filed a Notice of Appeal to the Superior Court of Pennsylvania. We

write briefly pursuant to the maidate of Pa R.A.P- 1925fa}:

Defendant Adhinayak Lal’s father, Amrit Lal, filed an appeal of the District Court's

judgment to this Court. Defendant Adhinayel Lal; however, is the recorded title owner of the

subject property. Anutit Lal did not have express or légal authority to file the appeat. On-

November 27, 2003, we dismissed the appeal for Amrit Lal’s lack of standing and entered the

judgment of the District Court. PaR-CrimP. 462;

(Pe. Cmmyw. 2001). Further, we ordered Defendant Adhinayak Lal to pay the judgment entered

in favor of the Borough of Modena within fifteen (15) days of the entry of this Court’s Order. At

this tima, Amrit Lal and his attomey were asked whéther Defendant Adhinayak Lat was aware of

26

these proceedings. Amrit Lat toid the Court his son was-net, (N.T. 11/27/02 at 6, 16). We

advised counsel and Amrit Lal that we would consider a petition to reinstate the appeal, and set a

hearing date for Defendant Adhinayak Lal to appear on January 17,2003 as ordered by this

Court. On January 17, 2003, Defendant Adhinayak Lal failed to appear at the hearing to explain.

why he did not filea timely appeal from the judgment of the District Court. Given his failure to

appear, we denied Defendant Adhinayak Lat’s Petition to Reinstate Appeal Nunc Pro Tune.

We then heard the Borough of Modena's Cross-Motion to hold Deféndant Adhinayak

Lal’s in contempt failure-te-pay- the judgment. Anzrit Lal decided to settle the case with the s

Borough of Modena and paid $18,000 for security on the costs of the judgment to-avoid-this

Court helding Defendant Adhinayak Lal in contempt. Therefore, the Contempt Motion became

moot.

Defendant Adhinayak Lal’s appeal of our January 17, 2002 Order denying the Petition to

Remstate the Appeat Nune Pro-Tune is-untimely and without merit. The timely date for eppeat

of judgment is no more than thirty (30) days as of the Court’s November 27, 2002 Order-

dismissing the summary appeal for lack of standing and entering the judgment of the District

Justice. Defendant Adhinayak Lal faited to appear on January 17, 2003 to be heard-on 2 petition

ta reinstate the appeal mune pro tunc, even after we ordered him to appear. An appeal fiom our

Fanuary 17, 2063 Order is, therefore; improper. Further, Defendant Adhinayak Lal and his father

Amrit Lal have given reason to question the veracity of their statements-ané actions in this

Matter.

Accordingly, this Court’s Order denying DEfendant Lal’s Petition to Reinstate Appeal

should be affirmed.

BY THE COURT:

Juan R. Sénchez J

27

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.

28

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.