Petition for Writ of Certiorari — Fiore v. Pennsylvania

Supreme Court. U.S

FILED

927.264 AUG 7 1997

No. OFFICE OF THE CLERK

IN THE UNITED STATES SUPREME COURT

OCTOBER TERM, 1997

WILLIAM M. FIORE, t/a

FIORE TRUCKING AND CONTRACTING,

Petitioner,

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petition for Writ of Certiorari to the Supreme Court

of Pennsylvania, Middle District, from the Order

dated May 9, 1997, denying Appellant’s Application

for Reargument

James B. Lieber, Esquire

PA I.D. # 21748

Lieber & Hammer, P.C.

5528 Walnut Street

Pittsburgh, PA 15232-2312

(412) 687-2231

Counsel of Record

for Petitioner

QUESTIONS ON REVIEW

Questions presented for review:

Did the Appellate Courts of Pennsylvania deny

Petitioner procedural due process by permitting the

Commonwealth of Pennsylvania to assert a new

theory of tax liability after the Commonwealth

conceded, following the completion of

administrative proceedings and during statutory

appeal, the validity of Petitioner’s original defense

to the Commonwealth’s theory of tax liability.

Answered in the affirmative.

mw

Did the Commonwealth Court of Pennsylvania deny

Petitioner procedural due process in not affording

him adequate time or opportunity to prepare his

defense to the Commonwealth’s new theories of tax

liability at a hearing upon remand from the

Pennsylvania Supreme Court.

Answered in the affirmative.

a Did the Commonwealth Court of Pennsylvania deny

Petitioner procedural due process in failing to create

a record of evidence Petitioner offered during the

evidentiary hearing on remand.

Answered in the affirmative.

TABLE OF CONTENTS

Page

Questions On Review .....-----ssrrrrrrttt 1

ee ili

Table of Authorities .....-.---2-eeeeccrerres Vv

Official And Unofficial Reports Of

Opinions Delivered In the Case By

See eat Pee ae ee Vill

Concise Statement Of Grounds On Which

The Jurisdiction Of The Supreme Court

Sar ee ix

Constitutional Provisions At Issue ...--- +--+ see? x

Concise Statement Of The Case ...--- +--+ ss ec: |

a a a ee 7

a Petitioner’s Due Process Rights

Were Violated When The

Commonwealth Of Pennsylvania

Revised Its Theory Of Liability

After 10 1/2 Years Of Litigation ......----> 8

A. The Commonwealth Of

Pennsylvania Admitted

The Validity Of The

Petitioner’s Defense ......-----+:: 10

11]

B. Pennsylvania Law Precludes

Changing Theories Of

Liability On Appeal ............. 12

Cc. Due Process Would Bar

Further Action By The State........ 16

II. Petitioner Was Denied Due Process

When The Commonwealth Court

Failed To Afford Him Adequate

Access To His Records On Remand ....... 22

III. Petitioner Was Denied Due Process

When The Commonwealth Court

Failed To Create A Record Of

Documents Proffered By Petitioner ........ 22

CR oe oe ere a ee eee ee gg ee

TABLE OF AUTHORITIES

Page

yak Cee BY . 2 Sr Be M2 Bee Aa lV

£2 Oa Con Sek. GOON uk oc se Ee er et 28

a ee SS Be ee 13, 14

Alexander v. Gardner-Denver Co., 415 U.S. 36, 58-59,

94 S.Ct. 1011, 1024 (1974) ...- eee e errr: 25

Altman v. Ryan, 257 A.2d 583, 585 (Pa. 1969) .... 15

Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct.

TORE PC SAR ee 8

Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct.

Te TRAINED 5c 5 em 2s ee ee Oe 8

Carey v. Piphus, 435 U.S. 247, 261-262, 98 S.Ct.

1042, 1050 CIFTE) sw ce es tet eee eS 8. 9

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999

fo a iat ale 25

DeMarco v. Jones & Laughlin Steel Corp., §22 A.2d

ye A ee 14

Federated Department Stores, Inc. v. Moitie, 452

U.S. 394, 398, 101 S.Ct. 2424 (1981) 2.22 ee eee 18

Fiore v. Com. Bd. of Fin. and Rev., 633 A.2d 1112,

Tike, Wt) ee a2. 23

V

Fiore v. Commonwealth of Pennsylvania, 596

wy Stora Be OR ee 4

Fiore v. Commonwealth of Pennsylvania, 633

we £9910 S&S. : Serer a ee oS ea

Fiore v. Commonwealth of Pennsylvania, 668

A.2d 1210 (Pa. CONWE. TURP 60 ct eee es 5

Gateway School Dist. v. Com. Dept. of Educ., 559

A.28 156 CPaA WR. TOG OE hone ce Bie 6 se 15

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585

(OOD «be & ress 06 6 he ie eee Vale eos 24

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123, 162, 71 S.Ct. 624 (1951) ..... ee ee

Kimmel v. Somerset County Commissioners, 333 A.2d

TEE GG. TOTS) occa 6 tp 6S oe ees ee ee 15

Kindle v. Commonwealth State Board of Nurse

Examiners, 515 A.2d 1342 (Pa. 1986) .......... 14

Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct.

DP, POO CETIED 6-55 e608 6 8.636 4 CLI 8, 20

Memphis Light, Gas, & Water Division v. Craft, 436

U.S. 1, 14, SS SAA. TSG CIR FRe ok 0.0 0 Pare ies 26

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct.

one CHPTED «. «0 OR MA eas Gee oes i 28

Pennsylvania State Police, Bureau of Liquor

Enforcement v. Kelly’s Bar, Inc., 639 A.2d 440

PE, FOP) nce kek gnene t+ ele 27, 28

V1

William M. Fiore t/a Fiore Trucking and

Contracting v. Com. of Pa., No. 50.51 and 52

M.D. Appeal Docket 1992, at pages 22-28 and 45-49. 6

William M. Fiore t/a/ Fiore Trucking and

Contracting v. Com. of Pa., Nos. 83. 84 and 85

M.D. Appeal Docket 1996 ....-- +s errr 7

Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975

ES eee eh eee ET EE Ee Te SSS 2)

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS DELIVERED IN THE

CASE BY OTHER COURTS

Fiore v. Commonwealth, 596 A.2d 1147 (Pa. Cmwith.

1991)

Fiore v. Commonwealth, 609 A.2d 862 (Pa. Cmwith.

1992)

Fiore v. Commonwealth, Board of Finance & Revenue,

633 A.2d 1111 (Pa. 1993)

Fiore v. Commonwealth, 668 A.2d 1210 (Pa. Cmwith.

1995)

Fiore v. Commonwealth, 676 A.2d 723 (Pa. Cmwith.

1996)

Fiore v. Commonwealth, Board of Finance & Revenue,

690 A.2d 234 (Pa. 1997)

Vill

CONCISE STATEMENT OF GROUNDS ON

WHICH THE JURISDICTION OF THE

SUPREME COURT IS INVOKED

This appeal relates to the entry of judgment of the

Pennsylvania Supreme Court, dated March 25, 1997, at

Nos. 83, 84 and 85 M.P. Appeal Docket 1996, by which

the Court affirmed the Order entered April 22, 1996 in the

Commonwealth Court at 925 C.D. 1980, 895 C.D. 1985,

and 1029 C.D. 1985.

By Order dated May 9, 1997, the Pennsylvania

Supreme Court denied Appellant’s Application for

Reargument.

The Court has jurisdiction over this matter pursuant

to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS AT ISSUE

All issues raised in this appeal invoke the due

process protections provided by the Fourteenth Amendment

of the United States Constitution which reads in relevant

part as follows:

Section 1. No State shall make or enforce any law

which shall abridge the privileges or immunities of

the citizens of the United States; nor shall any state

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

CONCISE STATEMENT OF THE CASE

The purpose of this petition is to seek redress

where state courts flaunted due process in favor of a taxing

authority in the unusual situation of a citizen who

continued to challenge his major assessment while

‘ncarcerated. Instead of properly situating itself between

the state and the individual, the judiciary allowed the

government to offer an entirely new theory of assessment

after 10 1/2 years, to hinder the incarcerated individual's

access to his own files prior to the hearing, and finally to

offer Petitioner a hearing (where he proceeded pro se) so

deficient and perfunctory as to make it impossible to

discern which documentary materials were entered into

evidence, received into the record, or even considered by

the court.

The controversy in this case revolves around two

audits conducted by the Commonwealth of Pennsylvania,

Department of Tax and Revenue, for the periods from

aia

January 1, 1975 to September 30, 1978 and October |,

1978 to December 31, 1981. These audits resulted in

Appellant Fiore being assessed in excess of One Million

Dollars ($1,000,000.00) for failure to pay sales and use tax

on purchases made by Appellant in his trucking business

which Appellant contended was tax exempt as a common

carrier.

The Petitioner filed for Petition of Reassessment

with the Board of Appeals of the Department of Revenue,

asserting that no tax was due because the Petitioner was

entitled to an exemption as a common carrier with public

utility authority. The Board of Appeals found the

assessment to be valid based on the theory that the

Petitioner was not entitled to a common carrier exemption

because he hauled for essentially one customer, United

States Steel.

The Petitioner then exhausted the Department of

Revenue administrative appeals process. The Board of

+

—

Finance and Review again denied the Petitioner’s exempt

status solely because it found that the Petitioner did not

qualify as a common carrier because he hauled for

predominantly one customer.

The Petitioner then timely filed a Petition for

Review with the Commonwealth Court of Pennsylvania.

At an evidentiary hearing before the Commonwealth

Court, in January, 1991 after approximately ten and one-

half years of litigation, the Commonwealth of Pennsylvania

admitted that "... nothing in the definitional section

requires that a common carrier perform for any particular

number of customers”, thereby sustaining the Petitioner's

contention that he owed no tax because he qualified for an

exemption as a common carrier.

The Commonwealth Court, however, allowed the

Commonwealth to change its theory of litigation,

abandoning the “one customer” approach and adopting a

completely new theory that the Petitioner owed tax because

he did not hold a PUC license and had poor records; the

Commonwealth Court gave the Petitioner only twenty days

to respond to an entirely new theory. On August 9, 1991,

the Commonwealth Court affirmed the decision of the

Board of Finance and Review. Fiore v. Commonwealth of

Pennsylvania, 596 A.2d 1147 (Pa. Cmwith. 1991).

The Petitioner then appealed to the Pennsylvania

Supreme Court on a number of grounds, one of which was

that he was denied procedural due process. The Court

vacated the Commonwealth Court’s decision and remanded

the case for a new hearing. Fiore v. Commonwealth of

Pennsylvania, 633 A.2d 1111 (Pa. 1993). The Court held

that giving the Petitioner only twenty days to prepare for

trial after the Commonwealth changed its position of ten

and one-half years, was a violation of procedural due

process and ordered a new hearing in the Commonwealth

Court. However, the Supreme Court of Pennsylvania

rejected the Petitioner’s contention that his appeal should

be sustained and the assessments in excess of One Million

Dollars should be dismissed.

On remand to the Commonwealth Court, the Court

conducted an evidentiary procedure. Petitioner, by then an

incarcerated person in Pennsylvania, represented himself

pro se. At this hearing the Court violated Petitioner's

procedural due process rights by its failure to afford

Petitioner access to his files; the Court compounded its

error when it failed to create a clear, complete, and

permanent record of those proceedings. In particular,

while Petitioner, acting pro se, presented several boxes of

his business documents to be made part of the record, the

Court never had those documents identified and docketed,

or ruled on their admissibility. The Commonwealth Court

again affirmed the decision of the Board of Finance and

Review. Fiore v. Commonwealth of Pennsylvania, 668

A.2d 1210 (Pa. Cmwith. 1995). The Petitioner filed an

appeal from this decision to the Pennsylvania Supreme

ne

Court, asserting that he had been deprived of procedural

due process, and that he was blocked from presenting his

case due to that court’s refusal to be clear about which

documents it would admit and the resultant amorphous

record. Pennsylvania Supreme Court denied the appeal

and affirmed the Commonwealth Court’s decision on

March 25, 1997. A Petition for Reargument was timely

filed, but was denied on May 9, 1997. This Petition seeks

review of that decision.

Petitioner raised the first issue, whether due process

was violated when Respondent asserted new theories of

liability, in his brief on appeal at William M. Fiore t/a

Fiore Trucking and Contracting v. Com. of Pa., No. 50.51

and 52 M.D. Appeal Docket 1992, at pages 22-28 and 45-

49. The Supreme Court did not directly address this claim

in its Opinion (App. 73).

Petitioner raised the second and third issues, that he

was denied due process in being denied adequate access to

his records prior to the remand hearing and that the

Commonwealth Court denied him the opportunity to put

evidence into the record, in his brief to the Pennsylvania

Supreme Court in William M. Fiore t/a/ Fiore Trucking

and Contracting v. Com. of Pa., Nos. 83, 84 and 85 M.D.

Appeal Docket 1996. The Supreme Court of Pennsylvania

affirmed the Commonwealth Court’s decision without

opinion. (App. at 143).

DISCUSSION

The guarantees of due process are specifically set

the Fifth and Fourteenth Amendments to the Constitution,

and provide that no person shall be "... deprived of life,

liberty or property, without due process of law." U.S.

CONST. amend. V, XIV. The history of Due Process

shows that it has long been equated with a fair trial and a

"feeling of just treatment." Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624

(1951) (Frankfurter, J. concurring). The facts surrounding

the petitioner’s case require this Court to question whether

the decisions of the appellate courts of Pennsylvania

afforded justice and fundamental fairness to Petitioner

Fiore.

[. Petitioner’s due process rights were violated

when the Commonwealth of Pennsylvania revised

its theory of liability after 10 1/2 years of

litigation

Procedural due process requires adequate notice and

an opportunity to be heard "at a meaningful time and in a

meaningful manner." Mathews v. Eldridge, 424 U.S. 319,

333, 96 S.Ct. 893, 902 (1976); Boddie v. Connecticut, 401

U.S. 371, 378, 91 S.Ct. 780, 786 (1971) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187,

1191 (1965)). Further, "a purpose of procedural due

process is to convey to the individual a feeling that the

government has dealt with him fairly, as well as to

minimize the risk of mistaken deprivation of a protected

interest." Carey v. Piphus, 435 U.S. 247, 261-262, 98

ee

S.Ct. 1042, 1050 (1978). The phrase "due process of

law" implies that a person will receive fair treatment and a

procedure designed to achieve a just result. Petitioner's

case raises more than a question as to justice and unfair

deprivation of a protected interest.

For ten-and-a-half years, Petitioner defended

himself against the Respondent Commonwealth’s single

theory of tax fraud. Respondent maintained that Petitioner

did not qualify as a tax-exempt common carrier because it

served only one customer. Then, after Petitioner had

exhausted all administrative procedures including

administrative appeals, and created the factual record

necessary to respond to the Respondent’s single theory on

appeal to the Commonwealth Court, the Respondent shifted

theories. For over ten years, Petitioner had tailored his

evidentiary gathering and maintenance to the Respondent’s

theory, only to have it changed at the proverbial eleventh

hour. Such conduct by the Respondent, as condoned by

the courts of Pennsylvania, violated all principles of

fundamental fairness and due process.

A. The Commonwealth of Pennsylvania

admitted the validity of the petitioner’s

defense

In its proceedings against the petitioner, Respondent

repeatedly professed one claim as the basis of the

Petitioner’s liability. That claim rested on the

Respondent’s assertion that Petitioner was not a tax exempt

common carrier because he hauled for predominantly one

customer. Throughout a decade of administrative

proceedings, Petitioner maintained as his defense that he

qualified for an exemption as a common carrier, despite

hauling for primarily one customer. Throughout the first

ten years of this litigation, Respondent stood by its theory

of the Petitioner’s liability.

The only basis for the Commonwealth of

Pennsylvania, Department of Revenue Appeals Board’s

LO

decision, upholding Plaintiff's liability was that Petitioner's

defense was statutorily invalid. In its decision, the Board

specifically stated that "... in those instances where a

‘Class D’ common carrier performs hauling services

predominantly for a single customer, it is not entitled to

claim the public utility exemption." In the subsequent

appeal, the Department of Revenue Appeals Board again

relied on the Commonwealth’s theory of liability. The

Board stated "... that in those instances where a common

carrier performs hauling services predominantly for a

single customer, he is not entitled to claim the public

utility exemption. "

Throughout this period of time, Petitioner

consistently defended that hauling for primarily one

customer did not disqualify him from the common carrier

exemption.

In its Memorandum of Law to the Commonwealth

Court on Petitioner’s appeal, Respondent reversed its long-

1]

held position and admitted that Petitioner was correct on

this interpretation of the law. The Respondent stated that

it"... agrees that nothing in the definitional section

requires that a common carrier perform for any particular

number of customers." In this brief statement, Respondent

sustained petitioner’s defense of ten years.

B. Pennsylvania law precludes changing

theories of liability on appeal

The Pennsylvania Commonwealth Court violated

petitioner’s due process rights in allowing the case to

continue after Respondent made this admission. After

admitting the validity of the Petitioner’s defense,

Respondent proceeded to change liability theories at

subsequent evidentiary hearings. The Commonwealth

Court errantly permitted this, thereby violating the

Petitioner’s due process rights, thereby erasing a decade of

defense and allowing Petitioner, by then incarcerated, to

endure a sudden and massive fiscal reversal at the whim of

the state.

Chapter 15 of the Pennsylvania Rules of Appellate

Procedure sets forth guidelines for judicial review of

governmental agency determinations.

Pennsylvania Rule of Appellate Procedure 1551 (a)

speaks to the scope of review of quasi-judicial orders. It

provides, in part: "No question shall be heard or

considered by the [Commonwealth] court which was not

raised before the government unit."' Rule 1571(h), which

deals specifically with Commonwealth Court review of

Board of Finance & Revenue decisions, also limits the

scope of review to questions which were raised and

preserved in the administrative process, with certain

exceptions not relevant here. Pa. R.A.P. 1571(h).

IBoth Pa.R.A.P. 1551(a) and 1571(h)

provides for exceptions to the limited

scope of review, none of which are

relevant here.

13

Due diligence, and these Rules, require the

Commonwealth to include all allegations and theories of

liability during the administrative proceedings against a

taxpayer. Its failure to do so violates both the Rules,

Pennsylvania case law, and the theory of fundamental

fairness by government and implicates due process. As the

Pennsylvania Supreme Court stated in DeMarco v. Jones

& Laughlin Steel Corp., 522 A.2d 26 (Pa. 1987), legal

issues and facts not presented to the referee during the

administrative process (a workers’ compensation claim)

cannot be asserted on appeal without sacrificing the

integrity of the administrative scheme. Likewise, in

Kindle v. Commonwealth State Board of Nurse Examiners,

515 A.2d 1342 (Pa. 1986), the Court recognized that, in

general, the failure to raise a certain defense during the

administrative process precluded its consideration on

appeal. The recognized exception to this rule is where

such questions could not, by the exercise of due diligence,

14

have been raised before the agency. See, Gateway School

Dist. v. Com. Dept. of Educ., 559 A.2d 118 (Pa.Cmwilth.

1989).

Similarly, in Kimmel v. Somerset County

Commissioners, 333 A.2d 777 (Pa. 1975), the Court

stated, "It is a fundamental principle of appellate review

that we will not reverse a judgment or decree on a theory

that was not presented to the trial court." See, Altman v.

Ryan, 257 A.2d 583, 585 (Pa. 1969). Respondent should

have been precluded by the Commonwealth Court from

raising and asserting these new theories of liability at that

point in the proceedings.

As a result of Rules 1551 and 1571 and the

preclusion traditions of Pennsylvania case law, the

Commonwealth Court erred in permitting Respondent to

introduce new theories in the appellate and subsequent

proceedings. The Commonwealth Court should have

found for the Petitioner as Respondent had presented no

15

other theories upon which to base its case during the

administrative process. Instead the Court erroneously

permitted Respondent to charge its posture to include two

additional liability theories that never had been addressed

at prior administrative proceedings. The Commonwealth

Court then gave Petitioner an inadequate amount of time to

respond to the Respondent’s new avenues. On appeal, the

Supreme Court of Pennsylvania compounded this error in

remanding the action for further proceedings, rather than

dismissing the charges against Petitioner.

en Due process would bar further action by

the state

The concept of due process is elastic and flexible,

and must be adapted to countless different contexts.

"[D]ue process," unlike some legal rules, is not a

technical conception with a fixed content unrelated

to time, place and circumstances. Expressing as it

does in its ultimate analysis respect enforced by law

for that feeling of just treatment which has been

evolved through centuries of Anglo-American

16

constitutional history and civilization, “due process”

cannot be imprisoned within the treacherous limits

of any formula. Representing a profound attitude

of fairness between man and man, and more

particularly between the individual and government,

"due process" is compounded of history, reason,

and past course of decisions, and stout confidence

in the strength of the democratic faith which we

profess. Due process is not a mechanical

instrument. It is not a yardstick. It is a process.

It is a delicate process of adjustment inescapably

involving the exercise of judgment by those whom

the Constitution entrusted with the unfolding of the

process.

Joint Anti-Fascist Refugee Committee v. McGarth, 341

U.S. at 162-63 (Frankfurter, J., concurring).

Likewise here, Petitioner’s due process claim does

not fit within an easily defined construct of due process

analysis. It is necessary for the Court to consider the

overall dominant constitutional paradigm that no

governmental action is permitted to interfere with property

and liberty without due process, best understood as

fundamental fairness.

Petitioner’s due process analysis herein is akin to

the concept of res judicata.

The doctrine of res judicata states that "a final

judgment on the merits of an action precludes the parties

or their privies from relitigating issues that were or could

have been raised in that action." Federated Department

Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424

(1981) (citations omitted).

After Respondent admitted that Petitioner was not

liable for tax evasion under the theory it had pressed for

over ten years, through the completion of the

administrative process, the Pennsylvania Courts should

have precluded Respondent from continuing to press its

claim, and from victimizing Petitioner. Respondent’s

admission, on appeal, that Petitioner was not liable under

the only theory of liability that it had presented, should

have resulted in a quick reversal of the Appeals Board’s

decision. By allowing Respondent to alter its theory of

liability, the Commonwealth Court essentially gave

18

Respondent carte blanch to relitigate the issues of the

petitioner’s liability. However, the liability issue already

had been decided when Respondent admitted to the validity

of the petitioner’s defense, thereby precluding further

action. The Commonwealth Court and later the

Pennsylvania Supreme Court, violated the petitioner's

rights by permitting Respondent to change theories of

liability at the appeal stage.

Respondent submitted new theories that the

Petitioner did not hold a PUC license, and that his records

were not maintained in a proper fashion. At no time in the

proceedings of ten years, did Respondent state these

claims. Respondent’s "new theories" were not supported

by any evidence of record. In fact, Petitioner had held a

PUC license since the 1950’s. Further, the narratives of

both audit reports of Petitioner’s business made no

suggestions of liability on the basis of poor record keeping.

In essence, Respondent had never before submitted

into the record any evidence on which to base these new

theories. In the original action by the Pennsylvania

Department of Revenue, and the subsequent appeal to the

Board of Appeals, there is no mention of these theories.

In both decisions by the Board of Appeals, the sole basis

for determining liability rests on the "one customer" theory

advanced by Responded. Such judicial conduct was and is

conducive to unbridled state power.

The Commonwealth Court and the Pennsylvania

Supreme Court erred in permitting Respondent to advance

new theories that should have been barred by the doctrine

of res judicata, and fundamental fairness. Such judicial

conduct was and is conducive to unbridled state power.

In Mathews v. Eldridge, this Court stated that the

"essence of due process is the requirement that a ‘person

in jeopardy of serious loss [be given] notice of the case

against him and opportunity to meet it." 424 U.S. at 349

20

ee

(quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S.

at 171-172 (Frankfurter, J., concurring)). Surely, this

Court did not envision due process to allow for the

Commonwealth of Pennsylvania to adopt new theories ten

years into the appeals process and in the face of contrary

Pennsylvania law. To allow such action would be violative

of the simple and fair justice that due process provides.

Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975

(1990). Petitioner requests this Court dismiss the

assessment against him on the grounds that the

Pennsylvania appellate courts erred in-permitting the

Commonwealth of Pennsylvania to change its claims of

liability after admitting to the validity of the petitioner's

defense.

IT. Petitioner was denied Due Process when the

Commonwealth Court failed to afford him

adequate access to his records on remand

III. Petitioner was denied due process when the

Commonwealth Court failed to create a record of

documents proffered by Petitioner

Subsequent to Respondent’s change in theory, the

Commonwealth Court gave Plaintiff only twenty days to

prepare for an evidentiary hearing on the new theories.

On appeal from the Commonwealth Court’s affirmance of

the Board of Review’s decision, the Superior Court of

Pennsylv. ula ruled that the Commonwealth Court's

procedure denied Petitioner due process.

The Pennsylvania Supreme Court specifically addressed

this issue, stating:

During the ten years following the first audit,

there had never been any contention that Fiore was

not a common carrier, was guilty of poor record

keeping, or lacked a license or certification. When

the Commonwealth Court determined that a

common carrier may haul predominantly for one

customer, the Commonwealth was permitted to

adopt the latter arguments--after discovery and a

mere twenty days before the evidentiary hearing in

the Commonwealth Court."

Fiore v. Com. Bd. of Fin. and Rev., 633 A.2d 1112, 1113

(Pa. 1993).

The Supreme Court remanded Petitioner’s case for

"a new hearing at which Fiore will be given the

opportunity to prove his entitlement to exemption from the

sales and use tax, after receiving sufficient notice to search

his records and prepare documentation of his claimed

entitlement." Id. at 1115.

On remand, the Commonwealth Court again denied

Petitioner, who was then incarcerated on other charges, an

adequate opportunity to review and organize his

documents. The Court compounded its error when it

failed to accept documents proffered by Petitioner during

the hearing and make them a part of the record.

While there is a reluctance to define due process for

fear that the definition may be interpreted in a way that

would limit or restrict its application in a particular case,

there are several well-recognized elements of a fair

hearing, as set forth by Judge Henry Friendly of the

23

United States Court of Appeals for the Second Circuit.

These include:

An unbiased tribunal;

Notice and grounds for the proposed action;

An opportunity to show why the proposed

action should not be taken;

The right to call witnesses;

_- The right to know opposing evidence;

6. The right to have the decision based only on

the evidence presented;

7. The opportunity to be represented by

WN —

counsel;

8. A record of the proceeding;

9. A statement of reasons;

10. Public attendance; and

11. Availability of judicial review.

Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev.

1267, 1279-1295 (1975) (emphasis added).

The right to a preserved record, and access thereto,

has long been recognized by this Court. For example, in

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956), this

Court held that due process and equal protection mandate

that the State must provide an indigent defendant with a

copy of his or her trial transcript. The Court recognized

that denial of a transcript, or its equivalent, would

effectively preclude a defendant's access to the appellate

process. Similarly, in Coleman v. Alabama, 399 U.S. 1,

90 S.Ct. 1999 (1970), this Court ruled that a preliminary

hearing is a critical stage to which every defendant is

entitled to counsel. The Court’s rationale was based, in

part, on the fact that the record produced at the

preliminary hearing was deficient in that it did not reflect

important facts. Had the defendant had counsel, the Court

reasoned, such deficiency in the record may not have

occurred.

This Court has perceived the essential due process

requirement of the creation of a full and complete record

in the civil context, also. In Alexander v. Gardner-Denver

Co., 415 U.S. 36, 58-59, 94 S.Ct. 1011, 1024 (1974), this

Court set forth basic, due process elements of a judicial

proceeding which differentiate it from arbitration,

including: the creation of a complete record, application

25

of rules of evidence, rights to full discovery, compulsory

process, cross-examination and testimony under oath. In

Alexander, this Court ruled that employment arbitration

agreements could not supplant an employee’s right to full

Statutory review under Title VII of the Civil Rights Act of

1964. Nor should a federal court defer to the findings and

conclusions of the arbitrators because arbitration

proceedings did not afford the full panoply of process

necessary to create a complete record on review.

The function of notice under due process "is to

apprise an affected individual of, and permit adequate

preparation for, an impending hearing" which may affect

their legally protected interests. Memphis Light, Gas, &

Water Division v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554

(1978). Notice is meaningless unless it affords one the

time and possibility to "adequately prepare" for a hearing.

Obviously, the Commonwealth Court's failure to

afford Petitioner access to his records and its refusal to

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create an evidentiary record during the hearing does not

comport with these fundamental elements of due process.

The hearing that occurred affords no confidence that

Petitioner’s documentary evidence was considered, or that

it was anything but a show and sham designed to allow the

smooth separation of Petitioner from his earnings.

Petitioner was given no more time to prepare his

defense, even though time did elapse between the hearings,

because he was incarcerated. Petitioner proceeded pro se

during the second evidentiary hearing: thus, this access

was Vital.

Not only did the Commonwealth Court breach

constitutional principals of due process, but also failed to

follow its own statutory mandate. Pursuant to 42

Pa.Con.Stat. § 564, that Court’s obligation at a hearing

was to "receive the evidence" that the Commonwealth

Court failed to do. In Pennsylvania State Police, Bureau

of Liquor Enforcement v. Kelly’s Bar, Inc., 639 A.2d 440

(Pa. 1994), the Supreme Court of Pennsylvania recognized

that the lower court, on review of an administrative agency

decision, had a "duty" to receive into the record any

evidence proffered by a party. Id. at 442. Petitioner here

asked that his documents be made a part of the record,

which the Commonwealth Court failed to do.

CONCLUSION

This Court has further stated that "due process is

flexible and calls for such procedural protections as the

particular situation demands." Morrissey v. Brewer, 408

U.S. 471, 481, 92 S.Ct. 2593 (1972). In denying the

petitioner access to his records to adequately prepare his

defense, the Commonwealth Court was callous to the

special circumstances surrounding the petitioner; namely,

that the petitioner, appearing pro se, was incarcerated at

the time of trial. As a result of this incarceration, the

petitioner was unable to access the records in order to

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prepare his defense to the new liability theories.

In addition, the Commonwealth Court should have

considered that the Commonwealth of Pennsylvania

changed liability theories ten years into the litigation.

These circumstances surrounding the petitioner's case

required the Commonwealth Court to be more flexible in

providing procedural protection. The Commonwealth

Court should have provided or insured the petitioner

greater access to his records.

Finally, because Petitioner proceeded pro se, the

Commonwealth Court should have assisted him insofar as

ensuring that the records he presented during that hearing

were made a part of the record; it did not do so. Such

failure clearly violates due process dictates which require

the creation of a record as a fundamental element of due

process.

Respectfully submitted,

LIEBER & HAMMER, P.C.

ae L ban

/iames B. Lieber, Esquire

PA I.D. # 21748

Lieber & Hammer, P.C.

5528 Walnut Street

Pittsburgh, PA 15232-2312

(412) 687-2231

Counsel of Record

for Petitioner

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