Petition for Writ of Certiorari — Kuznetsov v. National City City Bank Bank of Pennsylvania (No. 07-17)

Supreme Court, U.S.

FILED

No. D_ 07-17 JUN 29 2007

OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

STEPHEN B. KUZNETSOV,

Petitioner,

V.

NATIONAL CITY BANK OF PENNSYLVANIA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Raymond G. Hasley

Counsel of Record

9800B McKnight Road

Suite 115

Pittsburgh, PA 15237

(412) 366-6200

Counsel for Petitioner

June 29, 2007

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTION PRESENTED FOR REVIEW

Does the Rooker-Feldman doctrine, as explained by this

Court in Exxon Mobile Corp. v. Saudi Basic Indusg Corp..,

(Justice Ginsburg), 544 U.S. 280, (2005), preclude a federal

district court from exercising subject matter jurisdiction to

determine whether or not a prior state court judgment between

the same parties, raised as_a defense in the federal

proceedings, is void ab initio on the face of the record for

violating due process?

i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioner Stephen B. Kuznetsov is an individual resident

and citizen of Pennsylvania.

Respondent, National City Bank of Pennsylvania, is a

corporate subsidiary of National City Corporation, a publicly

owned corporation with headquarters in Cleveland, Ohio and

traded on the NYSE.

No other parties are involved.

iil

TABLE OF CONTENTS

Question Presented for Review

Parties to the Proceeding and Corporate Disclosure

Statement

Opinions Below

Statement of Jurisdiction

Statutory Provisions Involved

Statement of the Case

Argument for Granting the Petition

I. Due process, the Conduct Of the Pennsylvania

Courts, Denial of the Right to Trial by Jury and

Jurisdiction

Ill. The Rooker-Feldman Doctrine

IV. Reasons to Grant a Writ of Certiorari

Appendix

App. Exh. A, 3” Cir. Order, May 14, 2007

App. Exh. B, 3“ Cir. Order, May 14, 2007

App. Exh. C, 3™ Circuit Docket and Order, April 18,

App. Exh. D, District Court Opinion and Order,

January 16, 2007

App. Exh. E, Petitioner’s Complaint and

Excerpt from Surety Agreement

App. Exh. F, Excerpt, p. 14, Pa. Superior

Court, memorandum, May 19, 2005

App. Exh. G, Excerpt, Summary of Argument,

pp 12, 13 Petitioner’s Brief to Pa. Superior Court .

App. Exh. H, Smith v. Harry 91 Pa. 119 (1879) . . 26a

V

TABLE OF AUTHORITIES

Cases

Bell v. Hood,

327 U.S. 678 (1946)

D.C. Court of Appeals v. Feldman,

460 U.S. 462 (1983

Di Bona, Adm. V. P.T.C.,

356 Pa. 204 (1974)

Douglas, et al. v. City of Jeannette, Pa, et al.,

130 F.2d 652 (3% Cir. (1942)

Exxon Mobile Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280 (2005

Fourtees Co. v. Sterling Equipment Corporation,

242 Pa. Super. 199 (1976

Grun v. Pneeumo Abex Corp.,

163 F.3d 441 (7" Cir. 1998

Int'l Assoc. of Machinist & Aerospace Workers v. Northwest

Airlines,

673 F.2d 700 (3 Cir. 1982)

In Re James,

940 F.2d 46 (3 Cir. 1991)

Land v. Dollar

330 U.S. 731 (1974

Montana v. United States,

440 U.S. 147 (1979

Rankin v. Howard,

633 F.2d 844 (9" Cir. 1980)

Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923)

Smith v. Harry,

91 Pa. 119 (1879)

V.7.A. v. Airco, Inc.

597 F.2d 220 (10" Cir 1979)

Willis v. Davis,

3 Minn. 17 (1859); 1859 WL 3051 Minn. ....... 12

Statutes, Rules and Miscellaneous

28 U.S.C. § 1254 (1)

28 U.S.C. § 1254 (2)

28 U.S.C. § 1331

28 U.S.C. § 2101 (c)

Rules

Supreme Court Rule 13.1

Federal Rules of Civil Procedure 60 (b)(4)

Federal Rules of Civil Procedure 7, 8 and 9

vil

Pa. Superior Court Rule 1.0.P. 65.37

Miscellaneous

Black’s Law Dictionary, 5" Edition

Pittsburgh Post-Gazette

l

PETITION FOR A WRIT OF CERTIORARI

Stephen B. Kuznetsov (“Petitioner, Plaintiff, Appellant or

Kuznetsov”) respectfully petitions for a writ of certiorari to

review the order of the U.S. Court of Appeals for the Third

Circuit dismissing his appeal from the United States District

Court for the Western District of Pennsylvania for lack of

jurisdiction and imposing sanctions in the sum of $28,792.50.

OPINIONS BELOW

The order of the U.S. Court of Appeals for the Third

Circuit, dated April 18, 2007 dismissing the appeal is

unreported, and is reproduced as App. Exh. C, 5a. The order

of the U.S. Court of Appeals dated May 14, 2007 denying

rehearing is unreported, and is reproduced as App. Exh. A,

la and its order of May 14, 2007 imposing sanctions is

unreported and reproduced as App. Exh. B, 3a.

STATEMENT OF JURISDICTION

The orders of the U.S. Court of Appeals for the Third

Circuit sought to be reviewed Were entered April 18, 2007

and May 14, 2007. This petition is timely under 28 U.S.C.

§2101(c) and Supreme Court Rule 13.1 because it is filed

within 90 days of the entry of the orders sought to be

reviewed. This Court has jurisdiction to review the orders of

the U.S. Court of Appeals for the Third Circuit pursuant to

28 U.S.C. §1254(1).

CONSTITUTION PROVISIONS INVOLVED

This case involves Article VI of the United States

Constitution which provides in part,

2

“This Constitution, and the Laws of the United States

which shali be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shal]

be bound thereby, . . .”

This case involves the due process clause of the Fifth

Amendment to the United States Constitution, which

provides, in relevant part “No person shall be . . . deprived

of life, liberty or property without due process of law . . .

”

This case also involves the Seventh Amendment of the

Constitution which provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right to

trial by jury shall be preserved, and no fact tried by a

jury shall be otherwise re-examined in any Court of

the United States, than according to the rules of the

common law.

STATUTUTORY PROVISIONS INVOLVED

This case also involves 28 U.S.C. §1331 which provides

that “The district courts shall have original jurisdiction of all

civil actions arising under the Constitution, laws, or treaties

of the United States.”

STATEMENT OF THE CASE

On April 26, 2006 Petitioner — Plaintiff - Appellant,

Stephen B. Kuznetsov a non-compensated surety, filed a

legal action (App. Exh. E, 16a) claiming jurisdiction under

the federal Constitution in the United States District Court for

3

the Western District of Pennsylvania seeking damages for the

breach of a written surety contract and the implied covenant

of good faith and fair dealing in the performance of the

contract. Paragraph | of the contract provided, “If Borrower

at any time fails to fully and punctually pay or perform any of

the Liabilities when due, the undersigned promises, jointly

and severally to pay all such Liabilities immediately .. .”.

In due course the borrower defaulted but Respondent Bank

refused to permit Petitioner to pay the debt, which he

attempted to do, and thereafter, the debt for which the surety

was liable was increased from about $400,000.00 to

$540,000.00 when judgment for non-payment was confessed

against Petitioner and his wife.

The Respondent Bank moved to dismiss the case in the

District Court or for summary judgment based upon a prior

decision and judgment of the Pennsylvania Superior Court (an

inferior Court) in iis favor in a case Detween the same parities.

In that case Petitioner was denied the right to trial by a jury.

In essence, the trial court granted the Bank’s summary

judgment motion and ruled that a surety, while under a duty

to pay the debt upon default by the borrower, had no right to

pay the debt becausc such right to do so was not cxpressea iti

writing. Also, Respondent was not subject to the implied

covenant of good faith and fair dealing in the performance of

the contract.

The trial courts denial of the right to trial by jury was

appealed to the Pennsylvania Superior Court which affirmed

the trial court’s decision and thereafter the Pennsylvania

Supreme Court (the state court of last resort), declined

review.

4

In response to the Bank’s motion to dismiss in the District

Court, Petitioner challenged the validity of the prior judgment

of the Superior Court contending that it was a nullity because

the record on its face, as hereinafter explained, disclosed a

violation of Petitioner’s federal constitution right to due

process.

The District Court granted Respondent’s motion and

dismissed the case for lack of subject matter jurisdiction but

added that if it had jurisdiction it would dismiss the case as

barred by res judicata.

Petitioner appealed to the Third Circuit Court of Appeals

and before appeal briefs were filed Respondent moved to

dismiss the appeal and for sanctions.

On April 18, 2007, a panel of three circuit judges, Barry,

Ambro and Fisher granted Respondent’s motion (App. Exh.

C, 5a) based upon the Rooker-Feldman doctrine as explained

in Exxon Mobile Corp. v. Saudi Basic Indus. Corp. 544 U.S.

280 (2005) and in addition, imposed sanctions on Petitioner

of $28,792.50 deeming the suit frivolous (App. Exh. C, 5a

and B, 3a).

Petitioner promptly filed a petition for rehearing on

multiple grounds and requested that the Court’s order be

vacated, that the Court consider submitting the issue to the

Court en banc because the panel’s decision directly conflicted

with a prior decision of Third Circuit, In Re James 940 F.2d

46 (3 Cir. 1991). In that case Judge Aldisert explained that

a federal district court has jurisdiction to determine whether

a prior state judgment is void ab_initio (as Petitioner

contends), while it did not have jurisdiction to review and

determine if the prior judgment was erroneous.

5

Petitioner also requested that because of the critical

importance of comity with state courts, the Rooker-Feldman

doctrine and Petitioner’s federal constitution rights that the

case be certified to this court for review in accordance with

28 USCS §1254(2).

On May 15, 2007 Petitioner’s request for rehearing was

denied (App. Exh. A la).

No federal constitution issues were raised or

decided in the prior state lawsuit.

ARGUMENT FOR GRANTING THE PETITION

i.

DUE PROCESS, THE CONDUCT OF THE

PENNSYLVANIA COURTS, DENIAL OF THE

RIGHT TO TRIAL BY JURY AND JURISDICTION

The due process clause of the Fifth Amendment of the

United States Constitution is sacred. States are bound by due

process although the metes and bounds of due process may be

somewhat indcfinite and how to cnforce such right in some

cases less than certain. But, clearly due process precludes

state judicial bias or other misconduct whether intentional or

inadvertent. That is this case.

In Black’s Law Dictionary (5" Edition) over a half page

of fine print is devoted to explaining the term “due process”

and in Douglas et al. v. City of Jeannette, PA., et al. 130

F.2d 652 (3° Cir. 1942) Circuit Judge Maris at 656-659

discussed various aspects of due process and cited a number

of cases illustrating its complications and indicating the

possible difficulties in pleading a violation of due process.

6

Petitioner acknowledges he has the burden to prove

jurisdiction in the federal court system, but contends such

proof need not be fully set forth in the complaint. In this case

in his complaint, Petitioner simply claimed jurisdiction under

the Constitution and laws pertaining to national banks.

Petitioner contends that where the case arises from the

violation of due process, subject matter jurisdiction can be

established by affidavits and other means. See Land v. Dollar

330 U.S. 731, 735 n.4, 67 S. Ct. 1009, 91 L.Ed. 1209

(1947); Bell v. Hood 327 U.S. 678, 66S. Ct. 773, 775 n.1,2

(1946); and Int’] Assoc. of Machinists & Aerospace Workers

v. Northwest Airlines 673 F.2d 700, 711 n. 5,6 (3™ Cir.

1982). In Petitioner’s case, proof of jurisdiction is

intertwined in documents of record and federal law controls

the outcome of the case.

The case of Grun v. Pneumo Abex Corp. 163 F.3d 441,

423 (7" Cir. 1998) illustrates that even inadvertent conduct by

a court can violate due process. In the Grun case, Grun failed

to appear for his trial and his case was dismissed. He then

moved under Fed. R. Civ. P. 60(b)(4) for relief but it was

denied and he appealed.

On appeal the court noted that 60(b)(4) authorizes relief

when the judgment is void. The court at 423 stated: “...A

judgment may be deemed void if the court that rendered the

judgment acted in a manner inconsistent with due process of

law” (emphasis supplied) citing United States _v. Indoor

Cultivation Equipment from High Tech Indoor Garden Supply

55 F.3d 1311, 1316 (7" Cir. 1995).

From reviewing the record the court at 423 stated:

Indeed, it is clear from the record that the district

court inadvertently failed to notify either of the

7

parties, either by telephone, mail or otherwise, that

they had a trial date. Not surprisingly, it is also

undisputed that neither party appeared for trial. It is

also clear that Grun’s failure to appear at trial formed

the sole basis for the district court’s September 14,

1993 dismissal of Grun’s case. In its Order and

Opinion denying Rule 60 relief, the district judge held

that its dismissal order was not void because:

{the court’s order setting the trial date was in the

court’s file and computer docket between April 7,

1993, and September 14, 1993—the date of dismissal.

Thus, Grun should have known the impeding trial

date. Apparently, neither Grun nor his counsel

bothered to examine the file during the five-month

period.

Relying on the record in the district court, the trial courts

reasoning was rejected by the appeals, the court ai

424 stating:

Grun’s actions are not representative of the actions

of a litigant deserving the harsh sanction of dismissal.

The dismissal order is void under Rule 60(b)(4)

because it denied Grun due process, and the district

court should have granted Gurn’s Rule 60 motion for

relief from judgment.

Grun illustrates how a violation of due process can occur

without intent to do so.

And in Pennsylvania, the Supreme Court of Pennsylvania

in Di Bona, Adm. V. P.T.C. 356 Pa. 204, 51 A.2d 768

(1974) makes it clear that trial court judges are not immune

from the law of due process and granted a new trial because

8

of various oral questions and comments made by the trial

court judge during the trial that violated due process. The

court at 216 stated:

The rebukes thus administered by the trial judge

were uncalled for and were made in ill-chosen

language. Judges should never forget that “the first

and most essential element in a jury trial is a wise,

learned, impartial and competent judge”. See Martin

et al. v. Phila. Gardens, Inc., 348 Pa.232, 236, 35

A.2d 317, and Com. V. Brown, 309 Pa.515, 521,

164 A. 726. A litigant who is denied this “essential

element” is deprived of “due process of law.”

(emphasis supplied)

Petitioner submits that the same standards should apply to

all judges and certainly in this case, but unfortunately, in the

Di Bona case, supra the court did not elaborate on how to

apply its statement that the judge must be “wise, learned,

impartial and competent”. Query: Was it intended that a

court’s decision could be challenged on due process grounds

because the judge was not learned or competent? What

evidence would be admissible to prove that the judge was not

learned or competent? Do erroneous judgments violate due

process because the judge was not learned and competent?!

To illustrate the difficulty in possibly applying the Di

Bona rule or test in this case, at page 14 of Superior Courts

memo (App. Exh. F, 21a), the court stated:

' In Pennsylvania those seeking positions as judges run for election

as a member of a political party.

9

“In conducting our review, [of the trial courts

grant of summary judgment in favor of the Bank] we

have assessed the record in the light most favorable to

the Bank as the non-moving party” (emphasis

supplied)

However, it is undeniable that the Bank was the moving

party! The question arises whether the Di Bona rule should

be applied to the foregoing statement to establish a violation

of due process 9n the face of the record or, is that evidence

that the Superior Court’s decision was clearly erroneous for

the failure to apply the law correctly and assess the record in

the light most favorable to the Petitioner as the non-moving

party? Or, does the admission that it reviewed the record in

the light most favorable to the Bank indicate that the court

was not impartial or wise, learned or competent?

The Tenth Circuit in V.T.A. v. Airco, Inc. 597 F.2d 220

ath mo: .

(i0" Cir. 1979) expiained:

. . . (void ness) “. . . may also arise if the court’s

action involves a plain usurpation of power”'""° or if

the court has acted in a manner inconsistent with due

process of law'''. (footnotes omitted); Marshall _v.

Board of Ed., Bergenfield, N.J. 575 F.2d 417 (3"

Cir. 1978); National Labor Relations Board v. Ford

Motor Co., 114 F.2d 905, 505, n. 1-4 (6" Cir. 1940)

(“we may accept as fundamental, the axiom that a trial

by a bias judge is not in conformity with due process

of law” (citation omitted) Adamson v. C.1.R., 745

F.2d 541, 546 (9" Cir. 1984) (the “imperative judicial

integrity”).

Thus, while the scope of due process and the ;emedy in

some cases may be uncertain, decisions do make it crystal

10

clear that judicial conduct in a state court proceeding may be

“unfair”, and if so, such conduct violates due process whether

the conduct is inadvertent or intentional’. In the instant case,

Petitioner submits that the conduct hereinafter cited was

intentional or at the very least reveals bias or, if unintended,

indicates that the court was not competent per Di Bona, supra.

Il.

THE COURTS UNTRUE STATEMENT

To review the facts in this case, the important “hard

evidence” against the Pennsylvania Superior Court Judges

consists of two documents from the record, App. Exh. F, 2]a

and App. Exh. G, 23a and a case decision, App. Exh. H,

26a. The first is a short written statement in Superior Court’s

Memo’ that is extremely important and the second, quotations

from Petitioner’s written appeal brief to Superior Court. A

comparison of the documents reveals on the face of the record

the court’s statement was and is untrue and compels the

conclusion that the court did not act in a fair and impartial

manner in reviewing Petitioner’s appeal.

In the court’s memo affirming the trial court’s ruling that

Petitioner had no right to pay the debt when the borrower

defaulted, the court stated at page 14:

2 In Montana v. United States 440 U.S. 147 (1979) footnote

11.[8b] states: “Redetermination of issues is warranted if there is

reason to doubt the quality, extensiveness, or fairness of procedures

followed in prior litigation . . .”

* Superior Court invoked its Rule I.0.P. 65.37 so that the memo

would not be reported and would not establish precedent; but do not

all decisions establish precedent?

1]

“. . . None of the authorities upon which Appellant

relies support his contrary position that he had a right

to pay the debt.”

Query: Is the foregoing statement true or false? What

authorities cited by Petitioner was Superior Court referring

to? None were identified. The court did not identify a single

authority cited by Petitioner or otherwise comment with

regard to such authorities and further, the court (like the trial

~ court) failed to cite any authority to support the position that

the surety did not have the right to pay the debt although

under a duty to do so “immediately”.

In fact, Petitioner’s brief cited and quoted two cases that

verified that a surety has the right to pay the debt immediately

upon the borrower’s default (App. Exh. G, 23 a). One of the

citations, Smith v. Harry 91 Pa 119, 123 (1879) (App. Exh.

H, 26a) was decided by the Pennsylvania Supreme Court and

thus binding on the inferior Superior Couri. As quvied in

Petitioner’s brief:

“That decree established the executor’s personal

responsibility and it was his duty to make immediate

payment [to the heirs}. It fixed thc liability of his

sureties for an absolute debt, a sum certain, for which

there was then a present right of action against them:

and they were not obligated to wait until after the

legalese formally demanded the money, or issued

process for its collection, before moving to protect

themselves. . . and neither reason nor law required

them to suffer the debt to become swollen by interest

and costs, before they paid it, on pain of being treated

as mere volunteers . . . (Emphasis supplied)

12

~~

Petitioner also cited and quoted Willis v. Davis 3 Minn. 17;

1859 WL 3051 Minn.

. . the relation of principal and surety is one

involving the utmost good faith and confidence; and it

is the duty of the principal and the creditor to

carefully consider and protect the rights of the surety,

in all their transactions relating to the debt; . . .

* *K *

A surety may, at any time, pay the debt to the

creditor, and sue his principal at once, to reimburse

himself...

A surety has always the right to pay the debt of the

principal. and when he does so, he becomes entitled to

be subrogated to all rights of the creditor . . .

* * *

Until this case was decided the rule of law was clear - the

surety, like anyone who owes a debt, has the right to protect

himself when the debt for which he is liable becomes due; he

has the right to pay the debt immediately and the creditor can

not prevent payment or enlarge the debt (as was done here) by

delaying the time for payment and add other charges for the

alleged delay of the surety in making payment.

Despite the citations and quotations, none the less the

Superior Court judges found for Respondent Bank and wrote:

13

“.. . None of the authorities upon which Appellant

relies support his contrary position that he had a right

to pay the debt.”

The foregoing statement is totally opposite the truth and most

revealing and is of critical importance. The untrue statement

is on the face of the record and raises an inference of distrust

of the judges decision. The statement creates a false or

misleading impression. If the three judges acted in good faith

in performing their duties they could not avoid applying the

rules explained in Smith v. Harry, supra‘ or at least to

identify the decision and comment. Petitioner submits that

Superior Court’s untrue statement deceives the reader and is

evidence of the violation of Petitioner’s right to due process.

Further, Petitioner requested that the Supreme Court of

Pennsylvania exercise its power and review the case and

correct the decision but without any explanation the Supreme

Court declined to do so: it would not ph taay

Awan a <n ie ~

Views LU UY OV, IL WUUI LIU CVC alsWwC! LUlICC

simple questions:

1. Did Superior Court commit reversible error for

failing to apply the principles of law set forth in Smith

v. Harry, 91 Pa. 119, 123 (1879)?

2. Did Superior court commit reversible error in

interpreting the Surety Agreement and Guaranty in

favor of the Bank?

* The failure to refer to Smith v. Harry, supra, could explain why

the court invoked rule 1.0.P. 65.37 so that the decision would not

set a precedent.

14

3. Did Superior court commit reversible error in

holding the Duty of Good Faith inapplicable?

The decision of the Supreme Court not to review the case

ended Petitioner’s opportunity in state court proceedings to

prove the lower courts decision erroneous and to obtain a jury

trial. Also, the failure of the Supreme Court to review

implies that it approved Superior Courts decision in disregard

of the law and that it would not set precedent, thus raising

another suspicion. The conduct of the Supreme Court and

statement by Superior Court proves that the state courts were

not fair and impartial. The statement attempts to justify the

decision against your Petitioner but such statement is itself

untrue in at least two respects. First, Petitioner did in fact

cite cases that supported his “right to pay” — position, the

controlling issue on appeal and, second, Smith v. Harry,

supra, decided by the Supreme Court, was right on point and

should have been applied.

The untrue statement is on the face of the record and with

regard to a critical issue and for that reason should enable

Petitioner under 28 U.S.C. §1331 to challenge the validity of

the judgment invoked by Respondent as a defense. Also, to

have the judgment held void ab initio and to do so without

requiring the district court to examine and resolve the merits

of the judgment. The conduct of Superior Court is

tantamount to obstruction of justice and the failure of the

Pennsylvania Supreme Court to review the case denied

Petitioner’s right to trial by jury and compelled Petitioner to

seek justice elsewhere - - - - in the federal district court for

the violation of rights guaranteed by the Constitution.

Pennsylvania has acknowledged that judgments can be void if

the conduct of a judge violates due process and here the

evidence of a violation is clear under both federal law and the

law of Pennsylvania. Truth should matter.

15

iil.

THE ROOKER - FELDMAN DOCTRINE

AN EXCEPTION

In Exxon Mobile Corp. v. Saudi Basic Indus Corp. 544

U.S. 280 (2005) and other cases this court has explained the

Rooker-Feldman doctrine and its application based upon the

decisions in Rooker v. Fidelity Trust Co. 263 U.S. 413

(1923) and D.C. Court of Appeals v. Feldman 460 U.S. 462

(1983) but never in a case similar to that of Petitioner.

Petitioner acknowledges that at present the doctrine clearly

prohibits federal district courts from exercising appellate

jurisdiction to review the merits of a state judgment and to

reverse or modify the judgment at the request of the plaintiff

in the federal suit. However, it is believed that this Court has

yet to answer whether district court’s retain subject matter

jurisdiction to review a prior state judgment asserted as a

defense. The distinction between reviewing a decision tor

state court errors and voiding a judgment based on the face of

the record for violating due process is critical. Application of

the Rooker-Feldman doctrine should not restrict rights

guaranteed by the Constitution and leave an aggrieve party

without any meaningful recourse. there must be an

exception.

The 3 Circuit panel relied on the Rooker-Feldman

doctrine to dismiss Petitioner’s case but your Petitioner

submits that was clear error. Petitioner was deprived of his

right to trial by jury in the prior state proceedings because of

improper conduct by Superior Court judges and the failure of

the Pennsylvania Supreme Court to grant review of the case.

Without doubt what Superior Court did clearly indicated its

bias and prejudice and fairly raised an inference of distrust in

its decision. Nonetheless, the 3 Circuit panel considered

16

Superior Courts statement merely “[a rejection of] Appellant’s

legal argument'” (App. Exh. C, 5a) ignoring that the

Statement was untrue and further, the panel could not point to

any citations in the record to support an argument that a

surety has no right to pay, etc.

The panel also criticized Petitioner’s choice of words

characterizing the conduct of the responsible Superior Court

Judges as unwarranted. To the contrary, Petitioner contends

that he was and is entitled to select words from the English

language that best describe the facts, even if

uncomplimentary’ to a judge or judges. Respondent Bank

raised the issue of the state suit and Petitioner surely was and

is entitled to a fair fight for rights guaranteed by the

Constitution - due process and a trial by jury.

Petitioner did not request the district court to review the

merits of the prior state judgment or seek damages caused by

that judgment. And, Respondent could have avoided the issue

by asserting other defenses instead of the prior judgment.

Petitioner contends that the Rooker-Feldman doctrine is

inapplicable because Petitioner should be entitled to prove the

state judgment void ab initio when asserted as a defense.

> While the use of lies by judges to support their decision may be

rare it is not unheard of. On January 31, 2007 an article was

published in the Pittsburgh Post-Gazette newspaper that “Retired

Elizabeth District Judge Ernest L. Marranccini is scheduled to

plead guilty to one count of obstruction of justice on March 15 in

federal court for trying to instruct a witness to lie during a grand

jury investigation. ”

Also, see In Rankin v. Howard, 633 F.2d 844 (9" Cir. 1980) where

the judge made a pre-trial agreement to decide in favor of one party

and was caught.

17

Petitioners position is in keeping with the teaching of the

Court of Appeals for the Third Circuit in the case of In Re

James 940 F.2d 46 (3™ Cir. 1991). In that case the court

recognized different attacks on judgments to prove such

judgments void and that for one type of attack federal district

courts lacked subject matter jurisdiction while for a different

attack, to prove the judgment void ab initio, the district courts

have jurisdiction. Speaking for the Court Judge Aldisert at

page 52 explained:

It bears emphasis to repeat that federal courts that are

classed as inferior under Article III have the power to

vacate only state court judgments that are considered

void ab initio. Sound jurisprudential reasons underlie

this concept. Because a void judgment is null and

without effect, the vacating of such a judgment is

merely a formality and does not intrude upon the

notion of mutual respect in federal -_ state

interests...”

In fact, the Pennsylvania Supreme Court has long

recognized that judgments rendered by its courts can be void;

hence, the validity of Pennsylvania judgments can be attack

without offending comity. In Fourtees Co., v. Sterling

Equipment Corporation 242 Pa. Super. 199, at 208, footnote

3 Superior Court explained:

“3. It is of no importance that the judgment in the

instant case has already gone to execution. A

judgment which is defective on its face is a nullity and

without legal effect. Hence, the passage of time,

however great, does not enter into a consideration of

its validity. See Funds for Business Growth, Inc. v.

Maraldo, 443 Pa. 281 278 A.2d 922 (1971); Sharp v.

Valley Forge Medical Center, 422 Pa. 124, 221 A.2d

18

185 (1966); Haverford Township School District v.

Herzog, 314 Pa. 161, 171 A.455 (1934); Pennsylvania

Stave Company's Appeal, 225 Pa. 178, 73A. 1107

(1909). Cf. Wilber trust Co. v. Evans, 192 Pa. Super.

417, 422, 161 A.2d 664 (1960); Markeim-Chalmers-

Ludington, Inc. v. Mead, 140 Pa. Super. 490, 14 A2d

152 (1940).

Petitioner contends the 3 Circuit panel in this case should

not have ignored in Re James supra as well as the Di Bone

and Fourtees cases, supra. Those cases clearly support

Petitioner’s right io attack the validity of the state court

judgment as “void on its face”. Judicial misconduct -

intentional or inadvertent -violates due process and in this

case the record shows on its face an untrue statement in the

Superior Court memo that was critical to the outcome of the

case.

This Court is requested to consider that your Petitioner

restricted his attack to only the face of the record created

under the control of Superior Court and that Petitioner had no

right of discovery to uncover additional facts of possible great

interest. (Possibly the reason for favoritism or prejudice

could be discovered.) One does not expect an elected political

judge to confess in writing to bias, prejudice or political

influence in making a decision. One must search for clues.

Considering the untruthfulness of Superior Court’s statement

both the District Court and the Court of Appeals should not

have hesitated to immediately nullify the Superior Court

judgment. Protection of a person’s right to fair and impartial

proceedings is guaranteed by the federal constitution and

Article VI of the Constitution is binding on al] State court

judges. Due process controls the outcome of the case under

29 U.S.C. §1331 and assuming the state judgment nullified,

Petitioner should then be permitted to proceed before a jury

19

to prove the case alleged in the complaint. Diversity of

citizenship is not required when federal law is the controlling

issue.

IV.

REASONS TO GRANT A WRIT OF CERTIORARI

Violating due process to deny the right to trial by jury

could not be a more serious matter. This Court is requested

to answer specifically whether a federal district court has

subject matter jurisdiction to hear and decide whether the

defense of res judicata based upon a prior state court

judgment can be challenged as void ab initio when the face of

the state court record reveals a significant irregularity in the

state proceedings that offends due process. If a district court

is precluded from hearing the matter, what is the aggrieved

party to do?

At present a party who believes that his right to due

process has been violated in state court proceedings is

confronted with numerous obstacles to obtain relief in

addition to the Rooker-Feldman doctrine. The difficulties

start with the federal prucedural rules. Fed. R. Civ. P.

60(b)(4) confirms the jurisdiction of a federal district court to

decide a motion to void a judgment but Rules 7, 8 or 9 do not

address the nature of a complaint to challenge a state court

judgment as void ab initio and what must be alleged. Rule 8

provides that res judicata be plead as a defense. 28 U.S.C.

§1331 provides that district courts have jurisdiction to decide

“|. . civil actions arising under the Constitution . . .” but

how should the aggrieved party prove jurisdiction? Pleading

Form 2(b) requires only a mere reference to the Constitution.

The end object here is to obtain a trial by jury improperly

denied by a state court, but the controlling issue to obtain the

20

trial is one of federal law and your Petitioner contends that 28

U.S.C. § 1331 should be interpreted to permit a challenge to

the validity of a prior state court judgment as attempted by

Petitioner in this case.

The question arises; what is more important ~ the

guaranty to individuals of due process for their protection or

protecting state judges from scrutiny in their decision making

process? State judges are not above the law and their wrong

doing should not be swept under the rug.

Petitioner contends that if there is any evidence suggesting

judicial misconduct in state court proceedings the judgment

complained of should be automatically nullified and the

aggrieved party entitled to proceed with his case in a federal

district court. Otherwise the Rooker-Feldman_ doctrine

renders due process worthless; it does not protect a litigant

and it does not discourage judicial abuse but protects wrong

doing as this case illustrates.

Petitioner contends the door to justice in federal courts

must at all times remain open despite comity with state courts.

The right to due process and trial by jury are sacred and one

of the reasons the war for independence was fought! The

court of last resort in Pennsylvania would not answer the

simplest question of whether its decision in Smith v. Harry,

supra. was still good law! What was your Petitioner to do?

Finally, please note that your Petitioner was sanctioned

$28,792.50 for simply trying to obtain a trial by jury - his

ultimate goal and, Petitioner submits, the sanction was and is

unwarranted. The issues are justicable and sanctions violate

the general American rule that parties to litigation pay their

own attorneys’ fees. Also, in the prior history judgment was

confessed against Petitioner and his wife for about

21

$140,000.00 more than the debt when it first became due and

Petitioner attempted to pay the debt; hence the question,

“Hasn’t Petitioner been overly punished?

Your Petitioner requests that the orders of the Court of

Appeals for the Third Circuit be reversed and the case

remanded to the District Court to conduct a trial by jury of

the allegations in Petitioner’s complaint. In the alternative,

this court is requested to exercise its discretion and review the

state court judgment on its merits. There are a number of

reasons why it is clearly erroneous. For example, Superior

Court failed to even discuss and give meaning to 41 of the

surety contract which required Petitioner to pay the debt

immediately and it, “assessed the record in the light most

favorable to the Bank... .”. Also, it excused Respondent

from the obligation to act in good faith and deal fairly in the

performance of the contract.

The issues of jurisdiction, due process and the right to

trial by jury are of nationwide importance and, does not due

process command full review by this Court? Plaintiff

contends that the Rooker-Feldman doctrine was not intended

to deprive federal district courts from entertaining and

deciding whether a state judgment is void ab initio; however,

the question was not answered in either the Rooker-Feldman

cases or the Exxon Mobile case.

22

Respectfully submitted,

Raymond G. Hasley, Pa. Id. 1231

Counsel of Record

9800B McKnight Road, Suite 115

Pittsburgh, PA 15237

(412) 366-6200

Attorney for Petitioner