# Petition for Writ of Certiorari — Cheppa v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1145%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 510 U.S. 863 ## Text —_—— eee oh fms | ie ii Rajon UG @ ak & 1 ') | 43-74 | JUL 0 9 1993 No. | neeice Qk IME CLERK ae ee ee ee Ju the Supreme Court of the | United States of America OCTOBER TERM, 1993 JOHN CHEPPA Appellant V. PENNSYLVANIA Appellee PETITION FOR WRIT OF CERTIORARI TO THE SUPERIOR COURT OF PENNSYLVANIA Middle District John Cheppa 717 Catherine Drive Harrisburg, Penna. 17112- 3618 717-545-5744 QUESTIONS FOR SUPREME COURT REVIEW 1. Whether the Commonwealth of Pennsylvania acted Unconstitutionally, unjustly, and illegally with the Executive branch of government assuming the judicial function of prosecutorial discretion over a citizen-victim’s private Criminal Complaint regarding a prima facie case of perjury and false swearing against a Public Official. ii PARTIES TO THE CASE The caption of this case in the State Courts was some- what misleading, for it was listed there as COMMON- WEALTH OF PENNSYLVANIA V. STANLEY KITNER. However, the true parties are: John Cheppa, Appellant 7176 Catherine Drive, Harrisburg, Pennsylvania 17112-3618, Petitioner. And, Richard A. Lewis, Appellee Dauphin County District Attorney, Front and Market Streets, Harrisburg, Pennsylvania 17101, Respondent. lll il TABLE OF CONTENTS PETITION CONTENTS PAGE Questions i List of the Parties il Table of Contents iil Table of Authorities iv Reference to Opinions in the case 1 Statement of Jurisdiction 2 Constitutional Provisions & Statutes 2 Statement of the Case History 2 Procedure in the Courts below 4 Argument 6 Reasons for Review 6 APPENDICES Index to Appendices al Appendices al Filed Separately Affidavit of Service iv TABLE OF AUTHORITIES COURT DECISIONS Federal: Vv. 212 U.S. 322, 29 5. Ct. 370. sense tilbieiaatidiandsieadieianainsidatadnaanmaiaainiebalainnsainaeecaiid a65, a71, a78 Hill v. Texas, 316 U.S. 400. a nbcdishissintieiadliabaitpiibiidhiddiaiasanieninitinlenliiniuuasidinnnnnnanietinlael a67, a73, a81 Linds RS& = Richard D and Texas at al. 410, U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L Ed. 2d 536 (1973). Majority Opinion. li a a ol a q Id. Dissenting Opinion waitialaahagiaaededlbeaadiaieghidiatsbehdidtadeisitasasatgeicinsensoelaabuicmaiceecanasaleblacbenaient 10, 21 iv , 329 U.S. 459. eile itaiisisdatadeubansnnbcchomeit dulsnideabundiuananied a67, a73, a8l Louisville Gas & EF) — Coleman, 277 U.S. 32. scaicaseaabla deiiinaaeble ipbeaetaiatecsbd avalide abeastlaiattaaddiminssaiiaaaeneaiueaal a67, a72, a80 Mountain Timber Co. v. Washington, 243 U.S. 219 37, Ct. 260. si chsebnscniiicaiack basin esliveeiinncnceionlabiadamigladeiaiadebbuainuaae a66, a71, a79 U.S. v. Cruikshank, 92 U.S. 542. Re aE tre ely MONE Ee RN EONS HE a67, a72, a80 United States v. Shober, 469 KR. Supp. BOS (D.C. Pa. 1979) ...sccsccsesersnosvescsssssecnses a82 State: Vv Ww vanla V. Pa. 565 A.2d 746 (1989). Majority Opinion. Ww v. Li wl 17 A.2d 719, 143 Pa. Super. 75 (1941). ...---eeeeeeeeeeereeees a83 Commonwealth of Pennsylvania v. McHale, 97, Pa. 397 (1881). Commonwealth v. Stanley Kitner Dauphin County No. 12 M.D. 1991. Commonwealth v. Stanley Kitner Dauphin County No. 455 M.D. 1991. Commonwealth ex rel. Spector v. Bauer, 437 Pa. 37, 261,A 2d 537 (1970). In ew: Charge to grand jury, 97 PL. 115 (Pa. 0. & T. 1949)....ccccrrereeeeeeseeeteesesseees a82 County: w v. Vani , AB49 S 1990 ..........cceccsscccccrccccccccerssceeccneeseecnansssecsscsessoaees a83 vi John Cheppa v. West Hanover Township Dauphin County No. 3171 S 1987 SIT TG sataleciiacahialkns kdtmunannioniherenisieienninhaebeheabnenennnannceansindte 3 W. Vv wnship v. Dauphin County No. 4314 E. D. 1973 aaa cst bili Ulbelacananiieidcaneiinn dbkeieundsmlaiabkasasnnaesbsalannel 2,3 District Justice: John Cheppa v. West Hanover Township District Justice No. TA 87-427 SITTIN ss disc sitinasniesndidpnacioeontn oh Aagaoaacaiic nassagedasactnonemnnaaaeieninnaal 3 STATUTES U.S. Constitutional Bill of Rights. Nibdieiieaicallateaaiicacrerepahndcecescindanetncuaantumnbaaiatiaannanebtns 16, 20, 21, 22, 23 U.S. Constitutional Amendment V. iiaeiashe oes ciduainaeontshaseeedcspnbiisiatabdasuindselansiaidte atlas tie 2, 5, 6, 18, 20, 21 U.S. Constitutional Amendment XVII Si asianilienesasaieebaisiieiadiieabaiiien 2, 5, 6, 7, 11, 13, 18, 20, 21, 22, 23 Separation of Powers Doctrine Sica ab laelibensiss teed atpeldinaalalsndibblacipuads tokasaia dae 12, 15, 23 Bs Pete: WI LINED sssinscrnnctnaneneiensiachbuiiestibnioanbonammaeaiiauaa aaiuenine 2 Be ROR OE I ia vcsis wsinstdcs scantaccenipaneneiintennadeinniand 12 BEET TY TI i nxss/ecci bocssinenccoiscohie soennehaeananianaesadeiasseapeniael 13 is en I Bis eicnicsicin nintsnionenilaanenennaanena 7, am oe 18 Pa. C.S.A. SS 4903..........ccecececeseeeesesseeceeeeeeeneeees 7, 15, 21 42 Pa. C.S.A. ss 133 ss setiehigaladaabedenasesneniabniasenennaneen 1, 4, 6, 12, 13, 15, 16 AZ Pa. C.S.A. SS 742.....cccssssssreeeeessreresessneeesennaasesesereeeenees 2 Act of March 12, 1866, PL. 85, S81... .....ccccecscocccsrssscsccccecssnceceesssssscsscoessessonencrsers 13 Act of July 9, 1976, PLL. 586, No. 142, SS 2... ..esecsscesrecrecseereeensennsennessnsenerenecenes 6 RULES OF COURT Pa. R. Crim. P. 9022..... ..ccccsssssssseersreecesseeseeeeesesseeseesenenenes 19 Pa. R. Crim. P. 90238... ..cccccsssssseseeeceeeeeeeeeseeeeeeeeeennanennneees 19 Pa. R. Appl. P. 1112 (8)... ...ssssesesssessesesersseesensssenennenennenensnes 2 Pa. R Proff. Con. 3.5 ......ccseessssceeeeesereceeeesenneneeeeseneenennneees 19 OTHER AUTHORITIES Cardenas, Juan, The Crime Victim the Prosecutorial Proses, 9 Harv. J.L. & Pub. Pol’y 357 (¢ (:):':) een oa 12 Crosskey, William Winslow, Politics and the Constitution, in the History of the United States, (Chicago Ill., University of Chicago Press (1953). London, N.W. 1, England, Cambridge University Press (1953). viii Curtis, Michael Kent, No State Shall Abridge the Fourteenth Amendment and the Bill of Rights, (Durham, North Carolina: Duke University Press, 1986) pp. SE EE OA eidasieehadeinedeastisebilntnaeniannccsuesenivhtsnsecosexsinescersssiseesee 22 Penn, William, The Excellent Privil ‘Lil iP Reing the Rirthriaht of Free B Subjects of England, Philadelphia, William Bradford, pp. vii and viii SE siiinicieclideataliaiileteaninncibianaaibinetanaiatncennevaiborrrscisssensutes 18, 20 Private Prosecution: A remedy for ‘atri - “ Inaction, 65 Yale L.J. 209 (1958S). ................ccsccssscecssesees 13 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1993 JOHN CHEPPA, Appellant Vv PENNSYLVANIA, Appellee OPINIONS BELOW Via Rule 133 of the Pa. R.Crim.P (Appn. M, a27) two different Private Criminal Complaints (Appn. H, a20 & Appn. G, a16) of perjury and false swearing by a public official were given to the State Attorney and he denied both alleging a lack of materiality (Appn. F, al5 & Appn. H, a20). The petitions were then taken to the court where they were both denied (Appn. E, a10 & Appn. D, a9) there was no Opinion to the second Order. In neither of these Complaints did the Court allow an evidencing hearing although we requested such a hearing in Exceptions to the first case, the Brief to those Exceptions, the Memorandum to the second case and the Brief to the Appellate Court (Appn. TT, a131 - a134). Both Complaints were consolidated and denied with the Order and Opinion being Appn. C, a4. In the final Opinion the Common Pleas found that the defendant had been lying in court for years but alleged that the case was unimportant and the D.A.’s discretion must not be disturbed. The Court also erroneously determined that this was a case concerning a private matter between the Accused and the Affiant. The Superior Court also alleged that the D.A’s discretion must not be disturbed (Appn. B, a2). The Supreme Court of Pa. refused the hear the case (Appn. A, al). - JURISDICTION Rising in the Common Pleas as challenge to the State Attorney in refusing to prosecute 2 prima facie cases of perjury against a government official, the Superior Court had Jurisdiction under 42 Pa. C.S.A. ss742, (Appn. UU, al135). The Pa. Supreme Court had Jurisdiction under Rule 1112 (a) of the Pa. Rules of Appellate Procedure (Appn. UU, al35). Jurisdiction of the U.S. Supreme Court is Title 28, U.S.C. ss 1257 (Appn. J, a23). The lst Order was entered on April 23, 1991, the 2nd was entered on June 26, 1991, the final was on July 19, 1991, and placed in the Superior Court of Pa. on August 13, 1991; its Order was filed on May 28, 1992. On June 29, 1991, the issue was taken to the Supreme Court of Pa. and its Order was handed down on February 11, 1993 and mailed on or after February 18, 1993. Notice of Appeal was February 17, 1993 (Appn. MM, a119 & al20) and Application for additional time for this Petition was mailed on March 30, 1993 (Appn. NN, al21-a125). On April 7 the time for filing was extended until July 11, 1993 (Appn. PP, a126). CONSTITUTIONAL AND STATUTORY PROVISIONS United States Supreme Court Jurisdiction, Title 28, U.S.C. ss 1257 is Appn. J, a23. Amendment V to the U.S. Constitution is Appn. K, a24. Amendment XIV is found in Appn. L, a25. STATEMENT OF THE CASE HISTORY Arising from a case of conspiracy by the Government of West Hanover Twp. in Dauphin County, Pa. against Cheppa, the Public Officials of said Township sought to deprive him of full use and enjoyment of his home by removing the dirt from his front yard; the Twp. Government needed it to fill a depression behind the municipal building and create a parking lot. In 1971, the Govern- ment granted permission to Cheppa to fill his front yard providing he dig a ditch in front. After digging the ditch and filling the yard the government came to take the dirt. They were stopped by Cheppa’s attorney so they decided to take the dirt off the right-of- way in front of the home. Cheppa objected and the government agreed that it was Cheppa’s dirt and placed it on the Cheppa property at a location specified by Cheppa. The Township still wanted Cheppa’s dirt and filed a case to 4314 E.D. 1983. Heard on satiate anemia 3 February 27, 1984, three public officials of said Twp. did know- ingly and willingly commit the acts of perjury and false swearing. The acts of perjury and false swearing by the Government were brought to the D.A. but he refused to prosecute and the issue was dropped. The Government was successful for although it did not remove the front yard, after hearing the case the Court Ordered agreement on Public Storm Drains which was reached and molded into an Order which specified that Cheppa would pur- chase the Pipe and the Government would install it covering it with their own soil. The Twp. refused to install the pipe but under threat by the Court of being held in contempt, the pipe was installed about three months later. After installation the Government used $2500.00 worth of Cheppa’s soil to cover the pipe, and left a large area unfilled. Legal action was brought and docketed to No. 4314 E.D. wherein Cheppa sought to recover the soil (taken without just compen- sation) to have the remaining pipe filled over, and numerous other provisions. Mr. Kitner, in his capacity as Township Supervisor and Foreman of Roads testified under oath on behalf of the township as Public Official Kitner and not as Citizen Kitner, in this and all subsequent cases, a total of four bench trials. On August 26, 1986 Kitner testified that he: “(U]sed the soil of Cheppa to fill over the Pipe. The Court stated that a new case would have to be heard for recovery of the stolen soil. A new case docketed to TA 87 427 and heard by the District Justice on July 21, 1987, wherein Kitner testified that he, “did not use Cheppa’s soil; it was all Twp. soil. The Government, based upon the perjurious testimony, prevailed. Another case docketed to No. 3171S 1987 was filed in the Common Pleas and heard by a Board of Arbitrators on March 28, 1988, where Kitner testified that, no soil was taken from the Cheppa property, it was all Twp. soil. The Twp. was Ordered to repay John Cheppa the value of the soil. The Twp. Government took the matter to a Judge who heard it on July 13, 1988. Kitner testified that on August 5, under very heavy rain he found the street in front of the Cheppa property flooded, and to alleviate the flooding he removed the soil from the right-of-way reciting applicable law, and stored it on the Cheppa property then used it later, therefore, none of the soil used by the 4 township was Cheppa’s. The problem with this testimony was that there was no rain and when Kitner removed the soil from the R-O-W and stored it on the Cheppa property he did so because he agreed that it was Cheppa’s soil. This history shows the Township’s overt conspiracy, for it was a group decision to go to court 5 times with perjury to claim Cheppa’s private property without just compensation. Bringing allegations of conspiracy was contemplated but it was determined that the voluminous documents required to evidence such a conspiracy would loose the court, therefor, charges of perjury and false swearing by the last conspirator were brought to the D.A. The D.A. refused to investigate those allegations. Cheppa made an investigation and wrote a report. The D.A. (Appn. R, a35) replied that the false testimony used by Kitner was not material. PROCEDURE IN THE COURTS BELOW An attorney was retained and by Rule of Crim. P. No. 133 (Appn. M, a27) filed a lst Complaint for Private Prosecution on Novem- ber 20, 1990 which was docketed to 12 M.D. 1991 (Appn. H, a20). As noted on the face of that petition, the D.A.’s only reason for denying the Pleading was: “Portions of Defendants testimony that is in controversy, even if knowingly false, was not material to the outcome of proceedings.” On January 4, 1991, the issue was taken to the Court of Common Pleas where a Complaint, an Affidavit and Memorandum, was filed and in paragraphs 8 and 9, of the Complaint, the U.S. Constitution was raised for the first time (Appn. G, a32). The D.A. failed to acknowledge the Consti- tutional issue (Appn. R, 33 & 34). In that document, the D.A. (when referring to his discretion) was referring to the fact that he has discretion to evaluate the evidence only, and he was not referring to prosecutorial discre- tion, for if he had been referring to prosecutorial discretion he would have so written. The Common Pleas asked the D.A. for a Memorandum on February 26, 1991 (Appn. SS, a130). That Memorandum was filed ex parte, thus, establishing ex parte communications with the Court. The Court’s first Opinion (Ap- pendix E, p. al3) suggest that it never even saw or considered the Affiant’s Complaint or the evidence of a prima facie case (Appn. T, 37-63). The Court states that the Affiant failed to allege that 5 Kitner knew he was lying and that the Affiant failed to supply whether data (Appn. E at al3) Appn. H at a21. a21 shows that the Affiant did make that allegation and Appn. T11, a59 shows that such data was supplied and that it did not rain on August 5, 1983 during the time in question. Any information that the D.A. may have supplied to the contrary was false. Exceptions were timely filed, and in paragraphs 9 and 10 the Constitutional Amendments were again voiced (Appn. U, a64) and in the brief to exceptions the Affiant elaborated upon the 5th and 14th amendments (Appn. V, a65 through a68). A 2nd Complaint of 2 new counts of perjury and 3 new counts of false swearing were brought to the D.A. (Appn. G, al6 - al9). The D.A. denied the pleading on May 13, 1991, (Appn. F, al5) alleging that the 2nd Complaint was an attempt to circumvent the Order dismissing the 1st Complaint and that the statements by Kitner were not material. It is important that the D.A. did not give “prosecutorial discretion” as a reason for dismiss- ing the complaints. The 2nd case was also placed before the Court on June 9, 1991, as Case No. 455 M.D. 1991, and again in paragraphs 9 and 10 (Appn. W, a69) the U.S. Constitution was raised. In the Affiant’s Memorandum filed with that case the 5th and 14th Amendments were recited (Appn. X, a70 - a75). On June 26, 1991, the Court denied that 2nd Petition. Exceptions were taken on July 1, 1991, and in those Exceptions, paragraphs 9 and 10, (Appn. Y, a76) the U.S. Constitution was again raised. In the brief to the Exceptions of the 2nd case (Appn. Z, a77) the Constitution was again raised. The Exceptions of the 1st case (12 M.D. 1991) and the exceptions of the 2nd case (455 M.D. 1991) were consolidated and argued together where the 5th and 14th Amendments were voiced for a final time before the Common Pleas. The D.A. filed no Answer or Memorandum nor any other papers in the 2nd case, nor did he appear in court to argue the exceptions, thereby, giving no other reason for denying the 2nd Complaint for Private Prosecution other than his initial letter which denied that pleading on the grounds of a lack Materiality and a fear of circumventing the Ist Order of Court. In the final Opinion (Appn. C, a4 - a8) the important matters were, 1 The Court did not pass upon the 5th or 14th Amendment of the U.S. Constitution. 2 The Court did not find that Kitner’s 6 perjury was not material. 3 The Court did not find that there wasn’t enough evidence to warrant prosecution. 4 The Court did find that Kitner had been giving conflicting testimony about the same series of events in different legal forms [forums] over the course of years (Appn. C at a8). 5 The Court erroneously reasoned that the D.A.’s discretion must not be disturbed (Appn. C, a5). 6 The Court alleged, that the case was not important enough to warrant prosecution (Appn. C, a8). Nevertheless, in the Act of July 9, 1976 P.L. 586, No. 142, ss 2, as amended, the Pennsylvania legislature believed that perjury by a Public Official was an extremely important case because it extended the Statute of Limitations from 5 years to 13 years in such cases (Appendix CC, pp. a87 & a88). The matter was placed before the State Superior Court and in questions 8 and 9 the 14th and 5th Amendments to the U.S. Constitution were raised (Appn. AA, a78 to a83). The Superior Court denied the relief sought and did not rule on the Con- stitutional issues, therefore, an application to the Pennsylvania State Supreme Court was made, and the U.S. Constitution was again raised (Appn. BB, a84 - a86). That Court denied the appli- cation to hear the case. ARGUMENT Incorporated herein in support of this argument are Petitioner's Appendices with all of the Argument and Citations found there being as if fully recited here. Because those Arguments (valid as they are) were used in the courts below and are, assigned as Appendices to this Petition, your Honorable Court will agree that further duplication of printing is unnecessary here. REASONS FOR REVIEW * The D.A. did not plead Prosecutorial discretion. * Rule 133 of the Pa. R.Crim.P does not give the D.A. Prosecutorial dis-cretion. * The Penn. Perjury Law precluded the D.A. from using prosecutorial discretion to determine a question of materiality. * The Constitutional separation of powers doctrine precludes the D.A. from determining a question of law. * The 5th Amendment grants the power to indite or not to indite only to a grand jury. * 7 The 14th Amendment grants equal protection and due process to this Appellant Citizen. CONSTITUTIONAL ISSUES RAISED Unconstitutionality of D.A.’s decision is raised in the lst Com- plaint to Court (Appn. Q, p. a32) lst Exceptions (Appn. U, p. a64) Brief to 1st Exceptions (Appn. V, p. a65 - a68) 2nd Complaint (Appn. W, p. a69) 2nd Memorandum (Appn. X, p. a70 - a75) 2nd Exceptions (Appn. Y, p. a76) Brief to 2nd Exceptions (Appn. Z, p. a77) and argued at the hearing of Exceptions. In the Brief to the Superior Court (Appn. AA, pp. a78 - a83) in the Application to the Supreme Court (Appn. BB, pp. a84 -a85) along with the separation of powers doctrine (Appn. LL, p. al17 & a118). EVIDENCE, OF PRIMA FACIE CASE Appn. P, a29, is the Penna. perjury and false swearing Act which states that One is guilty of perjury if he knowingly makes a false statement that did or could have affected the course or outcome of a case, that a person is guilty of false swearing if he knowingly makes a false statement that could not have affected the course or outcome of a case, and MATERIALITY is a question of LAW. Appn.T, a37 to a63 is the evidence of a prima facie case of perjury and false swearing. This is not the entire volume of evidence offered below but it is more than enough to prove a prima facie case of perjury and false swearing against the public official. A witness states Mr. Kitner acknowledged that the soil removed from the right-of-way was the property of Cheppa (Appn. T1, a37) Kitner testified that the soil used to backfill over the storm drain was the private property of Cheppa (Appn. T2, a38 & a39) another witness stated that Kitner testified that the same soil did not belong to Cheppa but belonged to the Township (Appn. T5, a44) and another witness stated that Kitner testified the same soil did not belong to Cheppa but belonged to the Township (Appn. T6, a45). On pages 43 - 47, 50 - 54, and 57 of the transcript of July 13, 1988, Kitner testified in direct examination, that he was called to the property of Cheppa because of flooding and heavy rain on August 5, 1983, but due to that heavy rain and his duty under the law, he was forced to use the Cheppa property to stockpile the township dirt which he removed from the right-of-way and used later to cover the storm drain pipe (Appn. T7, a46 - a53). His lawyer in opening 8 and closing statements offers the perjury that Kitner had just finished elaborating upon (Appn.T8, a54-a55). A witness states that there was no rain at the Cheppa property before Kitner came to clean the R.O.W. or while he did clean it (Appn. T9, a56). A second witness stated that there was no rain or flooding at the Cheppa property and that Kitner arrived there at 11:40 AM. (Appn. T10, a57 & a58) a member of Kitner’s Road Crew stated that the road-crew left the Cheppa property just prior to their work day ending at 3:30 P.M. (Appn. T12, a60). The daily work sheet from NOAA states that there was no rain either before Kitner came to the Cheppa property or while he was there, or within several hours after he left the property. The times listed there are given in Standard Time while we were on Daylight Savings Time (Appendix TIl, p. a59). In the transcript of Kitner’s testimony it was found that the only things he lied about was the rain; everything else was true and accurate, and listed in (Appn. T13, a61 & a62). Taken to acriminal psychiatrist who studied the evidence, stated that Kitner suffered from no loss of memory when he gave his false testimony concern- ing the rain of August 5, 1983 or his reasons for coming to the Cheppa property and removing the dirt from the R.O.W. (Appn. T14, p. a63). Kitner testifies that he had the original copy of acontract (which would tell him where to get the soil to backfill over the storm drain) and that he studied that contract and voted as township supervi- sor to approve that contract (Appn. T3, a40 & a41) Kitner also testified that he did not have the contract (Appn. T4, a42 & a43). Kitner’s only objective before the district justice was to deceive. Kitner accomplished that with his perjurus testimony. A new case was filed where Kitner told the same story, and since his perjury was believed by the district justice and changed the outcome of that case, it could have also changed the outcome before the arbitrators. The township appealed the matter and it was heard by a judge where Kitner invented the heavy rain and flooding but due to he heavy rain he could not move the dirt to the township stockpile and, by Law was forced to stockpile it on the Cheppa property. Under the law, Kitner did have the right to use the Cheppa land for storage in an emergency condition such as public flooding but there was no rain or flooding. In its final Opinion to this case, the Common Pleas found that Kitner had been, “..§iving conflicting testimony about the same series of events in different legal forms [forums] over the course of years.” (Appn. C, a8). PETITIONER’S STANDING In a dissenting Opinion to Benz (App. FF, al03 - a105) Justice Papadakos of the Pa. Supreme Court has stated that one such as I does not have standing and alleged support for his view by the case of Linda R.S. v. Richard D. and Texas at al (Appn. GG, al0¢ -all0). Mr. Justice Marshall, writing for the majority in the Linda R.S case stated repeatedly that Linda R.S. did not have standing because she was not the victim. Justice Marshall wrote, “.. broad- ening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury’...federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction. [4-6] Applying this test to the facts of this case, we hold that, in the unique context of a challenge to a criminal statute, appellant has failed to allege a sufficient nexus between her injury and the government action which she attacks..” (Appn. GG at p. a108). What Justice Marshall is saying is that Linda R.S. was not the injured party, rather, her child was. “The party who invokes [judicial] power most be able to show that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute’s] enforcement.” (Appn GG, al08 & al09). Unlike the Linda R.S. case, the case be-fore you now has alleged that this petitioner is the victim of perjury and false swearing by a public official. In an investigative report written by this peti- tioner and given to the D.A. then later passed through the courts of Penna. this petitioner wrote: “In 1984, allegations of perjury were made to the D.A. of Dauphin County Pa. against three employees of the West Hanover Town- ship governing body, The allegations were not investigated and 10 their pursuit was dropped. In 1988 the fourth incident of perjury by a member of the West Hanover Township government sur- faced...” These allegations show not just perjury by the West Hanover Township government, but truly, a conspiracy. A conviction on charges of perjury would have the same affect as a conviction on charges of conspiracy, that is, to have the West Hanover Township government correct its methods of treating its citizens. In addition to the illness which resulted from the perjury and false swearing and recited by the judge of the common pleas (Appn. C, a7) this petitioner presented a list of monetary damages to the D.A. and the courts below which show a factual loss of $2,910.00 (after repayment for the stolen soil) as a direct result of this public official’s taking and using a citizens private property without just compensation, then committing perjury in the courts to protect the theft. Your petitioner is the victim of the crimes of perjury by a public official and as Mr. Justice White, joined by Mr. Justice Douglas stated in their dissenting Opinion to the Linda R.S. “The court notes, as it must, that the father of a legitimate child, if prosecuted under Art 602, could properly raise the statute’s under inclusive- ness as an affirmative defense... Presumably, that same father would have standing to affirmatively seek to enjoin enforcement of the statute against him... The question then becomes simply: why should only an actual or potential criminal defendant have a recognizable interest in attacking this allegedly discriminatory statute and not the appellant and her class? They are not, after all, in the position of members of the public at large who wish an enlargement of State criminal laws...” (Appn. HH, al111 - al13). Therefore, if we follow the recommendations of the dissenting Penna. Supreme Court Justice Papadakos in the Benz case where he paints Linda R.S., “a citizen lacks standing to contest the policy of the prosecuting attorney when he himself is neither prosecuted nor threatened with prosecution...” (Appn. FF, al104). Presum- ably, then, the accused would have standing to enjoin enforcement of the rule against him for underinclusiveness, the question, then, becomes simply: why should only a criminal have a recognizable interest in attacking an allegedly discriminatory rule or policy and not the victim? Won’t that in itself be seen as discriminatory and 11 unequal protection of the laws, forbidden by the 14th Amendment. The State’s pubiic prosecutor's duty in faithfully discharging the responsibilities of that Office is to promote and protect the criminal laws of the State on behalf of the inhabitants of the State, not on behalf of the State, for without the inhabitants, the State is an empty and hollow entity, in no need of protection of the law. And when some inhabitant of the State falls victim to crime, it is the duty of the public prosecutor to take up the cause of the law, and to promote justice for the victim-citizen of the State. Additionally, there is legislative reference to the practice of Private Prosecution, (Appn. QQ, al27 and RR, al28 & al29) and the D.A. has not raised any question of standing in the lower court, failing to preserve such issue for appeal. Trial Court had much to say ineffort to belittle this case. It implies that this is an extension of a civil litigation from 1983, but failed to see this is a Criminal suit from as late as 1988. The Court stated, “Thus, the matter would seem, to the law’s ‘reasonable and prudent person’ to be at anend.” (Appn. C, a7). The “reasonable and prudent person” is a civil standard which the Court has applied as a criminal test, thereby, proving it did not understand the case which resulted in the denial of equal protec- tion of the law and due process of law. A hearing on the matter would have benefited the Court injustly determining the nature of this case but the Court denied a hearing. The Court seems to be of the opinion that because this petitioner ultimately was paid the value of the soil taken without just compensation by the government, the resulting harm to the Affiant should be settled through some civil litigation. The Court fails to see that the Affiant’s being paid the value of the soil does not negate the crime of perjury. The Court has failed to understand that this was not a case brought against a citizen, it was a case brought against a public official; against the government for the hideous crimes of perjury and false swearing. The Trial Court states: ..these... prosecutions have no place in the county’s extended justice system...” (Appn. C, a6). However, I would think that this cri ived j iracy; The Court has failed to see that failure to prosecute public officials for their perjury has served to perpetuate the criminal 12 behavior on the part of the government. And the Court has failed to under stand that being paid the value of the soil in the face of perjury by the government does not “promote the general welfare” nor “establish justice”, for the value of all of the soil in the County could never equal the justice and privilege of liberty granted to this individual by the Constitution. Of these Criminal Com- plaints, the Trial Court has stated, “...the legislature was wise in providing that...the attorney for the Commonwealth must ap- prove or disapprove a private criminal complaint and the courts who have construed this rule provided that the district attorney shall make his decision in the exercise of his prosecutorial discre- tion...” (Appn. C, a8). The judge is wrong. What the courts have said is fthe D.A. raised prosecutorial discretion in the lower court it would hold on appeal” (Appn. DD a95) but the D.A. never did raise that in the lower court and the legislature has never given the D.A. prosecutorial discretion. There is no Penna. law which gives the D.A. prosecutorial discretion, for to do so, is repugnant to the separation of powers doctrine of the Constitution; prosecutorial discretion in the Office of the D.A. places judicial authority in the hands of the Executive branch of government and the perjury law itself states that the determination of materiality is a judicial function not for executive interpretation (Appn. P, a29) and that issue was raised in the Supreme Court (Appn. LL, all7 & al18). Trial Court alluding to the courts giving prosecutorial discretion to the D.A. when it is raised at the trial court level is correct, but this is not Rule by Law, it is, Law by Rule. And not by written rule, but by erroneous judicial interpretation of a Criminal Rule of Procedure. This case was brought to the Court by Rule 133 b2 of the Pa R. Crim. P. (Appn. M, a27). The provisions of Rule 133 are not new, it is a practice that has existed in England and Other countries for hundreds of years prior to the establishment of our own Federal System and subsequent Constitutional systems of government. What is new, and unconstitutional, is bestowing prosecutorial discretion upon the D.A. It was not until the 18th century that a system of public prosecution began to emerge in America, see: The Crime Victimin the Prosecutorial Proses 9 Harv. J.L. & Pub. Pol’y 357 (1986). i 13 Although such a system of public prosecution began to develop to enable the victims of crime in pursuit of justice, the several States maintained an avenue for private individuals to seek justice either by assisting the public prosecutor or going forward and initiating criminal proceedings himself: See Private Prosecution: A remedy for District Attorney’s Unwarranted Inaction, 65 Yale L.J. 209 (1955). The first public official in Pennsylvania given the role of public prosecutor was the Attorney General, an arm of the Execu- tive branch of government. Subsequently, in 1850, the Offices of Deputy Attorney Generals were created through legislation and these were followed by current legislation (16 P.S. ss 1401 et seq.) providing for a local D.A. to prosecute criminal cases on behalf of the public (see Commonwealth ex rel. Spector v. Bauer, 437 Pa. 37, 261, A 2d 537 (1970). Notwithstanding, the advancement of a public prosecutor, Pennsylvanians have always retained the right to private prosecution, not only through Rule 133, but through legislative enactment (16 P.S. ss 1409. Appn. QQ, a127 ). That provision is a follow up to the Act of March 12, 1866, P.L. 85, ssl (Appn. RR, al128 & 129) which provides for a private individual to bring criminal proceedings, or replace a D.A. when he “...shall neglect or refuse..” to discharge his duties. The Constitutionality of that provision was upheld in the case of Commonwealth v. McHale, 97, Pa. 397 (1881) where the Supreme Court of Penna. ruled that a private individual can act in the D.A’s stead. The point here, is that the D.A. has never had prosecutorial discretion in Pa. regarding a prima facie case to the extent that he may deny the equal protection of the laws to any victim of crime. More recently, in the case of Benz (Appn. EE, a99 - a102) Justice Larsen has stated that Rule 133 of the Pa. R. Crim. P. does not give the D.A. prosecutorial discretion: “Rule 133 does not contemplate that criminal proceedings initiated by private complaint will be subject to the ‘policy’ and discretion of the D.A.” (Appn. EE, a100). Therefore, the D.A, in faithful discharge of his duties, had no alternative but to “evaluate the responsibility of the charge con- tained in the complaint ...” (Appn. EE, a101) as raised by Justice Larsen, and approve the complaint. To do otherwise is a violation of the U.S. Constitution and specifically repugnant to the 14th Amendment and the “equal Protection’ and “due process” clauses. In the Benz case, the Constitutional issue of separation of powers | cpiecninaaeiataeaaiadaiaatiae edie 14 between the executive and judicial branches of govern ment was not raised in the Court of First Instance but was raised on appeal (Appn. DD, a94 & a95). The D.A. of Allegheny Co. joined by the Amicus Curiae presented policy reasons, and prosecutorial discre- tion based on the Constitutional issue of separation of powers as the cause for refusing to prosecute Officer Benz. The Penna. Supreme Court stated that if policy reasons had been raised in the court below, it would hold on appeal, but since it had not been raised below, the question was waved on appeal (Appn. DD, a95). On November 1, 1989, the majority of the Penna. Supreme Court ruled in the Benz, where a prima facie criminal case was brought to a D.A. by private criminal complaint, the D.A. could not refuse to prosecute on the grounds of a lack of evidence (Appn. DD, a95). In the present case, the petitioner brought 2 prima facie cases to the D.A. and he refused to prosecute on the grounds of a lack of materiality (Appn, F, .al5 & H, a20) which he supported by an alleged lack of evidence: “The information that he [Mr. Cheppa] has provided to the D.A.’s Office does not establish, beyond a reasonable doubt, criminal charges against Mr. Kitner... The D.A. has reviewed the material provided to this Office by Mr. Cheppa. The falsification that Mr. Cheppa is claiming by Mr. Kitner, does not affect the material out come or the course of the proceedings...” (Appn. R, a34). When the D.A. referred to his, “discretion to approve or disap- prove private criminal complaints” he was referring to discretion to evaluate the evidence and not separation of powers or prosecutorial discretion, or some other alleged policy. The test of this statement an be found on page 9 of the D.A.’s brief to the State Superior Court reprinted here in Appn. KK, all6. There he first refers to prosecutorial discretion as a policy reason, saying that it was raised in a letter denying the 2nd criminal complaint. That letter is found in (Appn. F, al5) and no policy reason or prosecutorial discretion or separation of power can be found there. When the D.A. states in that letter: “I feel that your latest criminal complaint is an obvious attempt to circumvent the Order of Judge Herbert Schchaffner...” he is expressing that as a fear of circum- venting an earlier Order, and he is not expressing it as a policy. If the D.A. had intended that the above statement serve as his 15 policy statement, or prosecutorial discretion statement, or separa- tion of powers statement, I suspect that he would have to put it in writing at the time he made the statement. If it can somehow be construed that the D.A. raised policy reasons, or separation of powers, or prosecutorial discretion in his answer to the lst com- plaint (which your petition er denies that it can) still the D.A. presented no answer or any kind of paper to the 2nd complaint and he did not appear in court to argue Exception, therefore, the lower court and the appellate court should have overruled the D.A. on the 2nd complaint. These were two distinct and different cases. The only similarity was that they were both criminal complaints against the same public official. Otherwise, each case was indepen- dent of the other as is witnessed by (Appn. G and H, al6 - a22). Certainly, it cannot be argued that the answer to a criminal complaint filed on January 4, 1991, also serves as answer to a different complaint filed on May 20, 1991. If that had been the intent of the D.A., wouldn’t he have to tell somebody. Both criminal complaints were brought pursuant to Pennsylvania's perjury and false swearing Act found in (Appn. P, a29-a31). Part b of that Act (p. a29) states that a question of materiality is for the court to determine, not the D.A. Therefore, even if the D.A. had raised separation of powers in reply to any or all of these criminal complaints, he could not invoke prosecutorial discretion while basing his denial of these complaints on a lack of materiality as he did. The law specifically states that materiality is not within his discretion to decide. This argument was set before the Supreme Court of Penna. in the Application for Appeal (Appn. LL, pp. al17 & al18). If the court of last resort in Penna. had intended that the Executive Office of the D.A. was to assume this judicial function, and since the issue was raised in that court, the separation of powers doctrine of the State and U.S. Constitutions must be invoked. Such assumption of power on the part of the D.A. renders him both, prosecutor for the State (an executive function) and judge on the issue of materiality (a judicial function). Such was not the intent of the founding fathers. Rule 133 (Appn. M, a27) was the authority by which the issue of perjury was brought to the D.A. In the proceedings below, we have repeatedly requested an evidencing hearing. In the Order of 16 February 26, 1991, the Court said that a hearing in the matter would not be entertained (Appn. SS, al130). We objected to the lack of a hearing in Exception No. 4 to the Trial Court, in the Brief to that Exception, in the Memorandum to the 2nd Criminal Com- plaint, and in Question No. 4 to the Appellate Court. (Appn. TT, al32 - 134). These demands have all been denied, presumably because Rule 133 does not specifically state that the court must grant a hearing. On the other hand, however, neither does Rule 133 grant prosecutorial discretion to the D.A., but the Court has neglected to see this. Regardless of how the courts below have impoverished this petitioner of the justice, equal protection of the law, and the privileges of liberty under the Bill of Rights by editorially sweep- ing the crimes of perjury by the government away, the issue boils down to just one narrow fact, the fact that these rulings of Court are an attempt to remove same of the judicial burden placed upon the State courts. The test of this statement can be found in the Trial Court’s final Opinion (Appn. C) at a6 where it is stated that, “...this case [of perjury by a governmental official] has no place in the justice system...” p. a8 where the Court states: ‘..this case [of perjury by a governmental official] is less important than any other criminal case in the county.” It can also be found in the dissenting Opinion to the Benz case (Appn. FF, al03 & al04) where State Supreme Court Justice Papadakos states, “...a D.A.’s power to approve or disapprove private criminal complaints is consistent with that office’s unreviewable authority... History, logic and efficiency require that this limitationon a prosecutor’s discretion must be read as narrowly as possible least we make the already overbur- dened criminal justice system wholly impossible to administer.” What he and the courts of Penna. refuse to realize is the fact that failure to prosecute a governmental official for the crimes of perjury is, in itself a brake down of the criminal justice system. Covering up the crime does not give rise to unreviewability by the courts. Nor does neglect in prosecuting private criminal com- plaints alleging prima facie cases of criminal activity make the Pennsylvania judicial system whole again. What Justice Papadakos and the courts below neglect to under- 17 stand is that crime, and, therefore, the administration of law through the judicial system can best be controlled through weeding out and prosecuting the criminals, especially the criminally in- clined governmental officials who seem to think that they are above the judicial system and accountable to no authority, whether legislative or constitutional. Had the Affiant’s 1984 allegations of perjury been prosecuted, the ’88, perjury would not have occurred. But failure and neglect in lawfully discharging the duties of the Office of District Attorney, encouraged the further perjury by that government. Penn. courts are wrong, to think that encouraging perjury through failure to prosecute will curtail crime. On the other hand, perhaps curtailing crime is not the object, perhaps all the courts want is a clear court calender. With all of the negative remarks and characterization of the Affiant by the Trial Court in its Opinions to this case, the fact remains that the Trial Court accepted false ex parte communica- tions from the D.A. and refused to correct the matter through a hearing of the Criminal Complaints. At the trial Court level and again in the Appellate Court, we had pleaded for an evidencing hearing. Not simply to air our prima facie case of perjury but as evidenced by Appn. TT, al31-a134, to respond to the false ex parte communications which the D.A. held with the court, and to en- lighten the Court as to the true facts of the issue and, thereby, allow the Court the opportunity to correct the errors of its first Opinion. We had not known of the false information presented to the court by the D.A., in fact, we had not known that anything was presented until it was revealed in the Court’s Opinion, therefore, our opposi- tion was voiced in the Exceptions. By vertu of those Exceptions (Appn. TT, al31-a133) the Court learned that the D.A.’s Memoran- dum was filed ex parte, and that the evidence supplied in that ex parte communication was false. The false ex parte communications by the D.A. evidences a cover- up of the crimes of perjury by a public official, and a mis-carriage of justice. Indeed a denial of due process of law and equal protection of the law, for now, upon the presentation of Exceptions, both the D.A. and the Court knew that the communications of the D.A.’s Memorandum was ex parte, and false. The Court, in denying a hearing, failed to see the true evidence in the context presented, further illustrating the intent of the Common Pleas to put the ' 18 Affiant out of Court, and deny the justice demanded by the U.S. Constitution. Throughout its Orders the Court displays a lack of understand- ing as to why this citizen pursues the issue of perjury by a governmental official. Perhaps the Court is not familiar with the writings of the founder of our Commonwealth where he William ream in rw book entitled, Ne Re Hee ne EY great a but hard to be gained, if once lost. The full text of this statement is found in Appn. VV, a136. It is the pursuit of justice, equal protection, and the privileges under the Bill of Rights that brings this case for they, “Will be hard to be gained if once lost” The Commonwealth of Pennsylvania has violated this petitioner’s 14th Amendment rights to equal protection of the law, de proses of law, and privilege under the law of bringing the case to a grand jury pursuant to the 5th Amendment which is made applicable through the 14th Amendment. It is deceitful for the lower courts to state that review of a private criminal complaint by a judge of the Court of Common Pleas checks and balances the decision of the D.A. The instant case proves that the judge of the Common Pieas is nothing more than a stamp for the D.A.’s decision. In this case where the D.A. had not pleaded prosecutorial discretion through separation of powers it was given to him by the judge. Where the accused was alleged to have knowingly made false statements under oath (Appn. H, a20 & a21) the judge stated that the allegation was never made (Appn. E, al3). Where an overwhelming amount of evidence was brought to support a prima facie case of perjury against the accused (Appn. T, a37 - a63) the judge stated that a crucial element of verification was not pre- sented (Appn. E, al3). The D.A. held ex parte communications with the Court and the D.A. has admitted to the Superior Court that he filed his Memorandum without copying the Affiant (Appn. S, a36). Would this Honorable Court accept any papers not served upon the opposing party? The D.A.’s argument that the Affiant was required to go to the Clerk of Court’s Office daily to check the docket for a filed Memorandum is preposterous. Such a burden er 19 has never been required of any party to acriminal proceeding. The Penna. Rule of Professional Conduct No. 3.5 entitled “Impartiality and Decorum of the Tribunal. A lawyer shall not: a. Seek to influence a judge, juror, prospective juror or other official by means prohibited by law. b. Communicate ex parte with such a person except as permitted by law.” Rule 9023 of the Pa. R. Crim. P. state: “Except as otherwise provided in these Rules, all written motions, and any notice or document for which service is required, shall be served upon each party concurrently with filing.” Rule 9022 of the Pa. R.Crim. P. states: “Except as otherwise provided in these rules, all written motions, and any notice or document for which filing is required, shall be filed with the Clerk of Court.” Because the Trial Court Ordered the D.A. to file a Memorandum and because it was filed pursuant to Rule 9022, Rule 9023 required that the document also be served on the Affiant. The court relied upon the D,A,’s allegations (which Cheppa has not seen) that the whether records evidence that it was raining on August 5, 1983. As such, the trial Court’s Order was tainted by the false ex parte communication of the D.A. as can be seen in the judge’s Opinion (Appn. E, al3) where he states: “The affiant has not attached any verification of weather conditions...that the witness made an untrue statement under oath that it was raining on that day. ...the Commonwealth has attached to its memorandum a copy of the climatological data for the Capital City Airport...which shows that the Harrisburg area received rain on that date.” The falsity of that statement is proven by (Appn. T9, a56; T10, a57, T11, a59, and T12 a60) where two witnesses state that there was no rain at the Cheppa property while the accused was there, and, that the accused arrived at 11:40 A.M. and was finished with the work at 3:30 P.M. The record from NOAA proves there was no rain. The fact that it began to rain after 6:00 P.M. had no bearing on the alleged perjury by the accused stating that he went to the Cheppa property “...during and because of heavy rain and flooding..” (Appn. T7, a46 - a53) and the D.A. was well aware of that fact because I personally showed him the NOAA work sheet and the remaining evidence plus photographs, proving that there was no rain that day at the time in question. If this prima facie case of perjury against a public official had been brought to a grand jury as was argued in Affiant’s Exceptions (Appn. X, a73 & a75) the accused would have been prosecuted and 20 justice would have been served. It is common knowledge that the 5th Amendment to the U.S. Constitution is made applicable to the States through the 14th Amendment, but we can go further. William Penn - Founder of Pennsylvania - writing in his book, The Excellent Privilege of ' oe Liberty and Property Being the Birth Right of Free Born Subjects of England, stated that a part of the privilege of liberty was the grand jury. The grand jury is also found in the Pennsylvania Charter of 1701, and it is found in the Federal Bill of Rights, specifically, the Fifth Amendment. William Winslow Crosskey has researched the U.S. Constitution and its Amendments for a period of more than 30 years before writing the 1st two volumes of his book, Politics and the Constitution, in the history of the United States. A professor of Law at the University of Chicago, Crosskey undertook this endeavor, not simply, to meet some predetermined conclusion of his, but to gain a solid insight to the true meanings and full intent of those documents. Throughout his writings, whenever he speaks about the Ist eight Amendments to the U.S. Constitution, the evidence he has uncovered show two facts; 1) Where the Amendments are written in general terms, they apply fully to both, the National Government and the State Govern- ment. 2) Where the Amendments are written specifically for direction of the National Government, it applies only to the U.S. The full text of Crosskey’s statement on pages 1075 and 1076 of his 2ed volume is reprinted in Appn. WW, al37 & a138. Much could be quoted from Professor Crosskey’s research to support the instant Petition before you today, not only did these Amendments apply to the States, but many of the States wanted those Amendments of Federal controls on the States because only about half of the States had a Bill of Rights, and those that did, did not have the wherewithal to enforce those Rights (Crosskey at 1061 to 1064). The Fifth Amendment is written in those general terms: “No person shall be held to answer...”. Had this amendment been included to apply only to the National Government, it surely would have read something like: “Congress shall pass no law holding a person to answer...”. When speaking about the grand jury clause in the 5th Amend- ment, the 5th Amendment confers prosecutorial discretion only 21 upon a grand jury. The 5th Amendment was so framed for several reason. The 5th Amendment’s intent was to devise a criminal system that was fair to the accused and to the victim of the crime; to take the inditing proses out of the hands of any one man; and to make the inditing process uniform in every State and Territory. For those reasons the inditing process was given to a cross-section of the accused’s and victim’s piers, providing part of the justice and perfect Union clauses of the Constitution’s preamble. Granting prosecutorial discretion to the State Prosecutor re- verses the full intent of the grand jury clause in the 5th Amend- ment and, thereby, reverses the 5th Amendment itself. By grant- ing prosecutorial discretion to the D.A., no longer can the inditing proses be fair to the accused and to the victim. No longer can the standards and elements of indictment be uniform, and no longer is an accused individual prosecuted or released by a cross-section of his piers, because granting prosecutorial discretion to the D.A. effectually places the inditing process back into the hands of one person. Some may say that the 5th Amendment applies only to the accused in criminal cases. As previously recited, the 5th Amend- ment was written to privilege both, the accused, and the victim. However, there is further argument on this point as is found in Mr. Justice White’s dissenting Opinion to the Linda RS. case (Appn. HH, alll & 112). “The Court notes as it must ...” that a criminal indited by a grand jury under the 5th Amendment, could properly raise the Amendment’s underinclusiveness as an affirmative de- fense. Presumably, that same Criminal defendant would have standing to affirmatively seek to enjoin enforcement of indictment by a grand jury. The question then becomes simply: Why should only the actual criminal defendant have a recognizable interest in attacking this allegedly discriminatory Amendment and not the victim and his class? After the Barron v. Baltimore case and some other erroneous rulings by the Supreme Court of the time, many of the States began to disregard the Federal Bill of Rights. This was especially preva- lent just before, during, and immediately after the Civil War. To correct this lack of proper behavior on the part of the States, the 14th Amendment was ratified. Section one of that Amendment specifically gives to each Citizen of every State the rights and 22 privileges of the Federal Bill of Rights: “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.” That clause bestows dual and equal citizenship on all of the American people, thereby, ending all arguments as to who was covered by the Section and what the coverage was. Because, the second part reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The privileges and immunities spoken about here are those of the Federal Bill of Rights, these clauses forbid the States from depriv- ing any of the Federal Bill of Rights to any U.S. Citizen. Who are these U.S. Citizens? You and I, the Citizens of the States are the Citizens of the United States. So states, the 14th Amendment. As found in the Text by: Michael Kent Curtis, No State Shall Abridge the Fourteenth Amendment and the Bill of Rights, “So far, at least, the broad call to free the States from the commands of the federal Bill of Rights has received very little encouragement from decisions of the Supreme Court ... [t]he court can change direction - if it chooses - and allow States to violate the Bill of Rights. It cannot, however, justify this result by a fair reading of history.” 23 In view of the forgoing, it is requested that these Constitutional issues of separation of powers under the Constitution, the Privi- leges of Liberty under the Bill of Rights and the 5th Amendment, the Due Process and Equal Protection under the 14th Amendment and the conflicting Order regarding the Separation of Powers and Prosecutorial discretion in this case with that rendered in Benz., be placed on the court calendar for hearing at the October 1993, term by this Honorable Court. hn Cheppa a 6 Catherine Drive arrisburg, Pa. 17112-3618 (717) 545-5744 24 APPENDICES ai Appendix Page A Feb. 11, 1993. Order of Penn. al Supreme Court Denying Affiant’s Application for hearing. B May 28, 1992. Opinion and Order of a2 Penn. Superior Court. C July 19, 1991. Final Opinion and a4 Order of Trial Court. D June 26, 1991. Second Opinion and aQ . Order of Trial Court. E Apr. 23, 1991. First Opinion and al0 Order of Trial Court. F May 23, 1991. Second Order of al5 District Attorney. G May 20, 1991. Allegations of al6 perjury in second complaint TO DA. H Nov. 20, 1991. First Complaint to a20 District Attorney. H Nov. 29, 1990. First order of a20 District Attorney. J Jurisdiction Act. 18 U.S.C. a23 ss 1257 K Amendment V to the United States a24 Constitution L Amendment XIV to the United a25 States Constitution M Rule 133 of the Pennsylvania a27 Rules of Criminal Procedure N Rule 134 of the Pennsylvania a28 Rules of Criminal Procedure Tl T4 T5 Pennsylvania perjury and false swearing Act of 1972, Dec. 6, P.L. 1482, No. 334, ss 1. 18 Pa, C.S. ss 4902 and 18 Pa. C.S. ss 4903 . Jan. 4, 1991. US Constitution raised in First Complaint to Trial Court, #M.D. 12, 1991. Jan. 14, 1991. District Attorney’s Answer to US Constitution. Dec. 5, 1991. District Attorney’s alleged excuse to Supreme Court for ex parte communications. Affiants evidence of perjury Witness’ statement of Kitner- Cheppa Agreement that soil from the right-of-way belonged to Cheppa. Kitner testimony given under oath on August 2, 1986, that he used Cheppa soil to backfill over a public storm-drain pipe. Kitner testimony given under oath on August 26, 1986, stating that he had the Original Copy of the Cheppa Contract, that he studied it very carefully and that he voted {as Township Supervisor] on that Contract, and approved it. Kitner testimony given under oath on July 13, 1988 stating that he did not have the Cheppa Contract. Witness’ statement, Metro Lynn stating that Kitner testified under oath on July 21, 1987, in ) case No. TA 87-427 that he did not use Cheppa soil to backfill over a public storm-drain pipe. a32 a33 a36 a37 a37 a38 a40 a42 a44 aill T6 Witness’ statement, Lynn Uria a45 stating that Kitner testified under oath on March 28, 1988, in case No. 3171 5 1987 that he did not use Cheppa soil to backfill over a public storm-drain pipe. T7 Kitner testimony given under oath a46 on July 13, 1988, stating that he removed the soil from the right-of- way because of flooding and heavy rain on August 5, 1983. T8 Township Attorney opens and a54 closes his argument at a bench trial on August 5, 1988 based upon Kitner’s perjury about rain and heavy flooding on August 5,1983. T9 Witness’ statement, John Robinson a56 stating that there was no rain at the Cheppa property on August 5, 1983 while Kitner and Township Road Crew was there. T10 Witness’ statement, Mr. Linker - a57 Township Official - stating that there was no rain on the Cheppa property on August 5, 1983 while Kitner and Township Road Crew were there. T1l Official weather records from the a59 National Oceanic and Atmospheric Administration of the Harrisburg Penna. Area on August 5, 1983 showing no rain while Kitner and the Township Road Crew were at the Cheppa property. T12 Witness’ statement Paul Carl a60 | | Township Road Crew Worker stating the approximate time the Township Road Crew left the Cheppa property on August 5, 1983. T13 List of truthful testimony given a61 under oath by Kitner on July 13, 1988. T14 Statement from Criminal a63 psychiatrist, Paul Phillips stating that Kitner did not suffer memory loss on July 13, 1988 when he testified in Court. U May 3, 1991. US Constitution a64 raised in First Complaint AND First Exceptions. V June 7, 1991. US Constitution a65 raised Brief to First Exceptions. W June 19, 1991. US Constitution a69 raised in Second Complaint to Trial Court. X June 19, 1991. US Constitution a70 raised in Second Memorandum to Trial Court. - July 1, 1991. US Constitution a76 raised in Second Exceptions. Z July 10, 1991. US Constitution a77 raised in Brief to Second Exceptions AA Nov. 6, 1991. US Constitution a78 raised in Brief to Superior Court of Pennsylvania. BB June 29, 1992. US Constitution a84 raised in Application to Supreme Court of Penna. CC Pennsylvania’s Statute of a87 Limitations. EE FF HH JJ LL rr av Majority Opinion in Benz a89 Concurring Opinion in Benz. a99 Dissenting Opinion in al03 Benz. LINDA R:S. Appellant, v. al06 RICHARD D. AND TEXAS et al. 410 US 614, 35 L Ed 2d S36, 93 5 Ct 1146. LINDA R:S. Appellant, v. alll RICHARD D AND TEXAS et al. 410 US 614, 35 L Ed 2d 536, 93 5 Ct 1146. Mr. Justice White, with whom Mr. Justice Douglas Joins, Dissension. LINDA R:S. Appellant, v. all4 RICHARD D. AND TEXAS et al. 410 US 614, 35 L Ed 2d 536, 93 5 Ct 1146. Mr. Justice Blackmun, with whom Mr. Justice Brennan Joins, Dissension. DISTRICT ATTORNEY'S FIRST CLAIM all6 TO PROSECUTORIAL DISCRETION BASED ON POLICY REASON: page 8 of D.A.’s reply to Appellate Court. PETITIONER'S OBJECTION RAISEDIN = all7 SUPERIOR COURT TO D.A.’s USURPATION OF JUDICIAL FUNCTION. March 17, 1993, Notice of Appeal. all9 March 30, 1993, Petition to U.S. al21 Supreme Court for additional time for filing. April 7, 1993, Order of U.S. al26 Supreme Court extending time for filing. RR SS UU Pa. 16 PS. ss 1409. Act of March 12, 1866, P.L. 85, ss 1. , Common Pleas Denial of Hearing. Affiant’s request for hearing in Exceptions to M.D.12, in Brief to Exceptions, in Memorandum to M.D. 455 42 PA. C.S.A. ss742 Appeals from courts of Common Pleas Pa. Rule of Appelate Procedure William Penn The Excellent Privilege of Liberty W. W. Crosskey Politics and the Constitution avi al27 al28 al30 al32 a135 al35 al36 al37 — a oe ee APPENDIX A COMMONWEALTH OF PENNSYLVANIA V. STANLEY KITNER NO. 0242 M.D. ALLOCATUR 1992 Dear Petitioner: This is to advise that the following Order has been endorsed on the Petition for Allowance of Appeal in the above-captioned matter: 02/11/93 Petition Denied. Per Curiam PROTHONOTARY’S OFFICE SUPREME COURT OF PENNSYLVANIA a2 APPENDIX B IN THE SUPERIOR COURT OF PENNSYLVANIA NO. 498 HARRISBURG 1991 COMMONWEALTH OF PENNSYLVANIA APPELLEE V. STANLEY KITNER APPEAL OF: JOHN CHEPPA Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division at No. 12 M.D. 1991: 455 M.D. 1991. BEFORE: POPOVICH, HIDOCK and HESTER, Ju. MEMORANDUM: FILED: May 28, 1992 This is an appeal from the order of the Court of Common Pleas of Dauphin County entered on July 17, 1991, dismissing appellant’s exceptions to the court’s prior orders which af- firmed the District Attorney’s rejection of appellant’s private criminal complaints against Stanley Kitner. Herein, appellant raises numerous allegations of error on the part of the trial court. All of which we find to be meritless. The trial court, in its independent review of the private criminal complaint, should not interfere with the exercise of APPENDIX B prosecutorial discretion unless it is determined that there has been a “gross abuse of discretion”. Commonwealth v. Pritchard, Pa. Super. 596 A.2d 827, 833 (1991). Having reviewed the record and the parties’ briefs, we agree with the lower court that the District Attorney properly refused to prosecute appellant’s private criminal complaint. Since the decision of the court below properly dispose[d] of this appeal, we affirm and adopt the opinion of the Honorable Herbert A. Schaffner as our own for the purpose of allocatur. Order affirmed. Judgement entered dated: May 28, 1992 Deputy Prothonotary a4 APPENDIX C IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY PENNSYLVANIA No. 12 M.D. 1991 No.455 M.D. 1991 COMMONWEALTH OF PENNSYLVANIA vs STANLEY KITNER OPINION Pennsylvania Rule of Criminal Procedure 133 provides that a private person shall submit a proposed criminal complaint to the attorney for the Commonwealth who shall approve or disapprove the complaint. Further, the rule provides that ifthe Commonwealth’s attorney disapproves the complaint and states the reasons for his action, the affiant may file the complaint with a judge of the court of common pleas for approval or disapproval. Pennsylvania case law has provided that the district attorney shall exercise discretion concerning whether to approve the proposed criminal complaint or not and the common pleas court only oversees the act of the district attor- ney in order to determine whether there has been a gross abuse of the Commonwealth attorney’s discretion. Commonwealth v. Muroski, 352 Pa. Super. 15, 506 A.2d 1312 (1986); Common- wealth v. Eisemann, 308 Pa. Super. 1, 453 A.2d 1045 (1982); and Commonwealth v. Malloy, 304 Pa. Super. 297, 450 A.2d 689 (1982). In the matters before us, Mr. John Cheppa has sought to have the District Attorney of Dauphin County approve Mr. Cheppa’s APPENDIX C proposed criminal complaint against Stanley Kitner. The first proceeding is indexed to No. 12 M.D. 1991 and District Attor- ney Lewis rejected Mr. Cheppa’s suggested complaint in that proceeding. Mr. Cheppa appealed to the Court and we dealt with that in an Opinion and Order dated April 23, 1991. Mr. Cheppa. Through counsel, filed exceptions to that decision and on May 20, 1991, we established a briefing schedule for counsel and, subsequently, oral argument was scheduled for July 10, 1991. Then, on May 20, 1991, Mr. Cheppa presented a second proposed private criminal complaint to District Attorney Lewis, again seeking approval of the institution of a criminal action against Stanley Kitner. We are advised that the District Attorney rejected this proposed criminal complaint on May 23, 1991 and that act resulted in Mr. Cheppa filing a petition for approval of private criminal complaint with this Court onJune 19, 1991. The matter was referred to us and we, by Order dated June 26, 1991, upheld the act of the District Attorney relative to his disapproval of the suggested prosecution. Exceptions were then filed to the latest Order referred to by the Court, to No. 455 M.D. 1991, and a request was then made that these latter exceptions, as well as the exceptions to our earlier Opinion and Order docketed to No. 12 M.D. 1991, be consoli- dated for argument. We granted that request and ten granted a further request made to us on July 10, 1991, continuing the argument on these matter[s] until July 16, 1991. We have reviewed all of the documents before us, and are absolutely satisfied a that the district attorney properly a6 APPENDIX C exercised his discretion and that these suggested prosecutions have no place in the county’s extent[ed] justice system. It takes very little to illustrate the correctness of this latter statement. This case, and all of the matters related to it which have been in this county’s court system in recent years, stem from an incident that occurred on August 3, (sic) 1983, eight years ago. A township employee, Stanley Kitner, was responsible on that day for removing soil from a township right-of-way and depos- iting it on the land of John Cheppa. Subsequently, that same soil was removed from Cheppa’s land and placed elsewhere, not on his property.(sic) Mr. Cheppa took offense to the removal of his soil and a number of legal proceedings resulted therefrom. There were at least two proceedings before a district justice, a proceeding before a Board of Arbitrators in Dauphin County, a hearing in equity before one of the members of this Court and finally, a hearing before another member of the Court on an appeal from the decision of the Board of Arbitrators that we have referred to. Mr. Cheppa alleges that Mr. Kitner has committed acts of perjury and has made false statements under oath in these proceedings. Mr. Cheppa says that Mr. Kitner testified falsely about whether or not it was raining on August 3, (sic) 1983, to whom the soil belonged that was taken from the right-of-way in front of Cheppa’s property and, finally, about a contract that had existed between he township and Mr. Cheppa. We do note that in the civil proceeding, in which Mr. Cheppa claimed that the township owed him the money s worth of the soil that was taken. Cheppa prevailed, got a judgment for the amount of the soil, $2,540.61, and has been paid. Thus, what- APPENDIX C ever misstatement Mr. Kitner may have made about the soil, or the contract, or the rain, Mr. Cheppa was reimbursed for the soil that was ultimately found to have been improperly taken. Thus, the matter would seem, to the law’s “reasonable and prudent person,” to be at an end. But it is not and the matter is obviously, for reasons unknown to us, much more important to Mr. Cheppa. In his brief before us on the question of his exceptions to our April 1991 ruling, Cheppa alleges that ill health has been brought to him because of Mr. Kitner’s “perjury and false swearing.” Cheppa states that he “can no longer eat sweet-corn, he can no longer eat sweet-peas, he can no longer eat onions,...” In fact, it is very clear that Mr. Cheppa has taken this matter as such a personal affront to him that he has no reasonable perspective of the incident. To quote further from his brief to us, to demonstrate this lack of perspective, the following statements are instructive: “This is not a case such as a domestic relations issue where one spouse lied in court against the other. This is not a case where there is no victim. This is a case where the local government of West Hanover Township (in the name of Stanley Kitner) stole a citizen’s dirt. Then, he used citizen’s tax pay- ments and hired a lawyer to protect his theft. He went into court with perjury and false swearing where he knowingly lied against one of the citizens of his community.” “Mr. Kitner has abused that trust by stealing a man’s dirt, then using citizens tax monies, he went into court with perjury to protect that theft.” a8 APPENDIX C As we have noted, the district attorney is to exercise his discretion in approving or disapproving a proposed private criminal complaint. That discretion is discretion in a purely legal sense and involves a decision-making process bounded by the rules and principles of criminal law, and may not be a decision made in an arbitrary, capricious, or unrestrained manner. Black’s Law Dictionary, 4th Edition, Page 553. We are, of course, keenly aware that the county’s judicial system is “teeming” with criminal matters and we can think of none that are less important than Mr. Cheppa’s own concern about an individual, who must be his earnest adversary, giving conflict- ing testimony about the same series of events in different legal forms [forums].over the course of years. We can only conclude that the legislature was wise in providing that, in serious cases, the attorney for the Commonwealth must approve or disap- prove a private criminal complaint and that the courts who have construed this rule provided that the district attorney shall make his decision in the exercise of his prosecutorial discretion. We are satisfied that the district attorney has not abused his discretion at all in this case and we dismiss the exceptions filed to both of this (sic) docketed proceedings. Accordingly, we enter the following ORDER AND NOW, this _19_ day of July, 1991, the exceptions to our April 23, 1991 order and to our order of June 26, 1991 are dismissed. APPENDIX D IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY PENNSYLVANIA No. 455 M.D. 1991 - COMMONWEALTH OF PENNSYLVANIA vs STANLEY KITNER ORDER AND NOW, this 26th day of June, 1991, the petition of John Cheppa to have the Court Approve a proposed Private criminal complaint in this matter is denied, and the act of the District Attorney of Dauphin County, in his prior disapproval of the suggested prosecution, is upheld. BY THE COURT: Herbert A. Schaffner, Judge al0 APPENDIX E IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY PENNSYLVANIA No. 12 M.D. 1991 COMMONWEALTH OF PENNSYLVANIA vs STANLEY KITNER OPINION John Cheppa filed a petition for approval of private criminal complaint. In this petition, Mr. Cheppa states that on Novem- ber 23, 1990, he presented a proposed criminal complaint to Dauphin County District Attorney Richard A. Lewis for ap- proval in accordance with Rule of Criminal Procedure 133(a). The proposed criminal complaint alleges that Stanley Kitner of 899 Piketown Road, West Hanover Township, committed two acts of perjury and two acts of false swearing while a witness under oath in a nonjury proceeding before the Honorable Clarence C. Morrison onJuly 13, 1988. On November 29, 1990, District Attorney Lewis disapproved the private criminal com- plaint and stated that the portion of Mr. Kitner’s testimony in controversy, even if knowingly false, was not material to the outcome of the proceedings. Mr. Cheppa then filed the com- plaint with the Dauphin County Court of Common Pleas pursuant to Rule of Criminal Procedure 133(b)(2). An answer was filed on behalf of the District Attorney’s Office and we directed the Commonwealth to file a memorandum in support of its position. This matter is now before the Court for disposi- tion. Our scope of review is limited to making an independent a ll APPENDIX E determination as to whether the District Attorney abused his discretion in refusing to approve the private criminal com- plaint. See Commonwealth v. Eisemann, 308 Pa. Super. 16, 453 A2d 1045 (1982); Commonwealth v. Fisher, 28 D&C 3d 428 (1984). Unlike the District Attorney, the court in its review of the Commonwealth’s decision is not required to give reasons for either approval or disapproval and there is no requirement that a hearing be granted. Commonwealth v. Braun, 19 D&C 3d 572 (1980). Nevertheless, we will discuss Mr. Cheppa’s concerns and outline the basis for our decision. In Count I of the proposed criminal complaint, the affiant claims that Stanley Kitner committed perjury by stating as a witness in a civil proceeding before Judge Morrison that it was rainingon August 5, 1983 at and before the time he was present on John Cheppa’s property at 7176 Catherine Drive, West Hanover Township. In Count II, it is alleged that Kitner committed perjury in the same proceeding by stating that he went to the property of John Cheppa on August 5, 1983 for the purpose of unblocking waters from Catherine Drive, Counts III and IV allege the same statements in support of the false swearing claims. The civil action docketed to 3171 S 1987 was a suit by John Cheppa against West Hanover Township for damages result- ing from the township’s use of dirt which allegedly belonged to Mr. Cheppa. Mr. Cheppa was successful in this action and was awarded $2,540.61 as compensation for the dirt. The issue in the proceeding before Judge Morrison was the ownership of the dirt. Mr. Kitner, a representative of the township, stated that al2 APPENDIX E he responded to a complaint, that because of a heavy rain, water had collected on Catherine Drive. He indicated that upon investigation, he found that dirt had been deposited on the right-of-way and that the water could not drain properly because of the dirt. The township removed the dirt from the right-of-way and deposited it on Mr. Cheppa’s property. The township’s subsequent use of this dirt resulted in the civil lawsuit. Mr. Cheppa agreed that there was dirt on the right-of- way but testified that the dirt was removed and deposited on his property pursuant to an agreement. Perjury is defined as follows: “A person is guilty of perjury, a felony of the third degree, if in any official proceeding he-makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when-the statement is mate- rial and he does not believe it to be true. Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is nodefence that the declarant mistakenly believed the falsification to be immate- rial. Whether a falsification is material in a given factual situation is a question of law.” 18 Pa. CS. ss4902(a)(b). False swearing is defined as follows: “(a) False swearing in official matters. - A person who makes a 13 APPENDIX E a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is guilty of a misdemeanor of the second degree if: (1) the falsification occurs in an official proceeding; or (2) the falsification is intended to mislead a public servant in performing his official function.” 18 Pa. C.S. ss4903(a). The issue in the proceeding before Judge Morrison was the ownership of the dirt which the township had removed (sic) from the right-of-way, deposited on Mr. Cheppa’s land and subsequently used for the township’s purposes. The weather conditions on August 5, 1983 and the reason for the township’s removal of the dirt from the right-of-way on that date and the subsequent deposit on Mr. Cheppa’s property had absolutely no bearing or could have had no bearing on Judge Morrison’s decision. Furthermore, the affiant has not alleged that Mr. Kitner knew that his statements at issue in this complaint were untrue. The affiant has not attached any verification of the weather conditions on August 5, 1983 in support of his position that the witness made an untrue statement under oath that it was raining on that day. In fact, the Common- wealth has attached to its memorandum a copy of the climato- logical data for the Capital City Airport for August 5, 1983 which shows that the Harrisburg area received rain on that date. ai4 APPENDIX E Since ownership of the dirt was at issue in the proceedings before Judge Morrison, it was irrelevant as to why the dirt was removed from the right-of-way and placed on Mr. Cheppa’s property. Mr. Cheppa has had his day in court to litigate this ownership issue and we will not countenance a further meritless criminal proceeding to air Mr. Cheppa’s obvious reluctance to put the matter behind him. We find that the Commonwealth did not abuse its discretion by disapproving the private crimi- nal complaint and accordingly, we enter the following ORDER .AND NOW, this _23 day of April, 1991, affiant’s petition for approval of private criminal complaint is dismissed. BY THE COURT Herbert A. Schaffner, Judge Bice ge AED as BAGS El APPENDIX F RICHARD A. LEWIS District Attorney Dauphin County Harrisburg, Pennsylvania 17108 May 23, 1991 Mr. John Cheppa 7176 Catherine Drive Harrisburg, Pa. 17112-3618 Dear John: This will acknowledge receipt of a private Criminal Com- plaint submitted by you outlining allegations against Stanley Kitner on charges of perjury and false swearing. | have reviewed your correspondence dated May 20, 1991, which accompanied the Criminal Complaint. Additionally, | have reviewed prior correspondence that | forwarded to you on this particular matter. I feel that your latest Criminal Complaint is an obvious attempt to circumvent the order of Judge Herbert Schaffner affirming my earlier decision disapproving a previous Crimi- nal Complaint which you filed in the same matter. Once again, I must state that I do not feel the statements of Mr. Kitner, whether true or false, are material to the outcome of this particular matter. Accordingly, I am disapproving this latest private Criminal Complaint. Thank you. Richard A. Lewis District Attorney APPENDIX G SECOND COMPLAINT TO DISTRICT ATTORNEY CRIMINAL COMPLAINT (PRIVATE) C 36262 District Attorney’s Office B ( ) Approved ( ) Disapproved because (Issue Dated) (Signature) COMMONWEALTH OF PENNSYLVANIA VS. Defendant: Stanley Kitner 899 Piketown Road West Hanover Township Dauphin County, Penna. John Cheppa (Name of Affiant) of Private Individual residing at_7176 Catherine Dr., Hbg. Pa do hereby state under oath or affirmation, to the best of my knowledge, information and belief: 1) I accuse the above named defendant, who lives at the address set forth above, with violating the penal laws of the Commonwealth of Pennsylvania at the Office of District Jus- tice Magaro and the Dauphin County Court House In Dauphin County on or about 8/26/86, 7/21/87, 3/28/88 and 7/13/88. 2) The acts committed by the accused were: ———eerre ee a 17 APPENDIX G The defendant has made inconsistent statements under oath, both having been made within the period of the statute of limitations, both having been material to the outcome of a civil suit, one was false and not believed to be true by the defendant. On August 26, 1986 the defendant stated that $2500.00 worth of soil belonged to the Affiant and that he had a copy of the contract in question. On July 21, 1987 and March 28, 1988 the defendant stated that the afore mentioned soil belonged to West Hanover Township, and on July 13, 1988 the defendant stated that he did not have the contract in question. PERJURY: two counts, FALSE SWEARING: three counts Please see Appendum. PERJURY Count I through IV have previously passed this way, we will begin with count V. COUNT V: PERJURY That, on or about July 21, 1987, while under oath before district Justice Samuel Magaro, Mr. Stanley Kitner knowingly lied in the case of John Cheppa v. West Hanover Township, case number TA 87-427. Mr. Kitner (while carrying out the direc- tives of acontract) told the court that the dirt he used to backfill over a storm drain was township soil when he knew that soil was the private property of Mr. Cheppa and he did not believe his testimony to be true. al8 APPENDIX G COUNT VI: PERJURY That, on or about March 28, 1988, while under oath at an Arbitrator’s Hearing, Mr. Stanley Kitner knowingly lied in the case of John Cheppa v. West Hanover Township, case number 3171 5 1987, Mr. Kitner (while carrying out the directives of a contract) told the court that the dirt he used to backfill over a storm drain was township soil when he knew that soil was the private property of Mr. Cheppa and he did not believe his testimony to be true. That, on or about July 21, 1987, while un-der oath before district Justice Samuel Magaro, Mr. Stanley Kitner knowingly lied in the case of John Cheppa v. West Hanover Township, case number TA 87-427. Mr. Kitner (while carrying out the direc- tives of acontract) told the court that the dirt he used to backfill over a storm drain was township soil when he knew that soil was the private property of Mr. Cheppa and he did not believe his testimony to be true. COUNT VII: FALSE SWEARING That, on or about March 28, 1988, while under oath at an Arbitrators Hearing, Mr. Stanley Kitner knowingly lied in the case of John Cheppa v. West Hanover Township, case number 3171 5 1987, Mr. Kitner (while carrying out the directives of a contract) told the court that the dirt he used to backfill over a storm drain was township soil when he knew that soil was the private property of Mr. Cheppa and he did not believe his testimony to be true. COUNT VIL: FALSE SWEARING That, on or about July 13, 1988, while under oath before Judge Clarence C. Morrison of the Dauphin County Court, Mr. a 19 APPENDIX G Stanley Kitner knowingly lied in the case of John Cheppa v. West Hanover Township, case number 3171 5 1987. Mr. Kitner (while carrying out the directives of a contract) told the court that he did not have the contract which would have told him what dirt to use in backfilling over a newly installed storm drain and he did not believe his testimony to be true. All of which were against the peace and dignity of the commonwealth of Pennsylvania and contrary to the Act of assembly, or in violation of 18 ss 4902, 4903 of the Act OF Pa. Crimes Code 1972. I ask that a summons be issued and that the accused be required to answer the charges I have made. I swear toor affirm the within complaint upon my knowledge, information and belief, and sign it on May 20, 1991, before NOTARY PUBLIC. John Cheppa Signature of Affiant Personally appeared before me on May 20, 1991, the affiant above named who. being duly sworn (affirmed) according to law, signed the complaint in my presence and deposed and said that the facts set forth therein are true and correct to the best of affiant’ knowledge, information and belief. Patricia Lamb K Issuing Authority a20 APPENDIX H CRIMINAL COMPLAINT (PRIVATE) es C 36263 District Attorney’s Office B ( ) Approved (__X_) Disapproved because: Portions of defendant’s testi- mony that is in controversy, even if knowingly false, was not material to outcome of proceedings. 11/29/90 R. A. Lewis (Issue Dated} (Signature) COMMONWEALTH OF PENNSYLVANIA VS. Defendant: Stanley Kitner 899 Piketown Road West-Hanover Township Dauphin County, Penna. John Cheppa (Name of Affiant) of____ Private Individual residing at 7176 Catherine Dr., Hbg. Pa do hereby state under oath or affirmation, to the best of my knowledge, information and belief: 1) I accuse the above named defendant, who lives at the address set forth above, with violating the penal laws of the Commonwealth of Pennsylvania at the Dauphin County Court- house, Harrisburg, Pennsylvania In Dauphin County on or about 7-13-88 2) The acts committed = the accused were: es r—t™™r™C*‘=eé= a 21 APPENDIX H Count I Perjury: Did intentionally and knowingly, in an official proceeding, make a false statement, to wit: That it was raining on August 5, 1983 at and before he was present on John Cheppa’s property at 7176 Catherine Drive, West Hanover Township, Dauphin County, Pennsylvania, while under oath or equivalent affirmation, when the statement was material and he did not believe i t to be true. Count II Perjury: Did intentionally and knowingly, in an official proceeding, to wit: a hearing or trial before the Honorable Clarence C, Morrison, make a false statement, to wit: That he went to the property of John Cheppa at 7176 Catherine Drive, West Hanover Township, Dauphin County, Pennsylvania on August 5, 1983 for the purpose of unblocking waters from Catherine Drive at or near the said property of John Cheppa while under oath or equivalent affirmation, when the state- ment was material and he did not believe it to be true. Count III False swearing: Did intentionally and knowingly, make a false statement, to wit: That it was raining on August 5, 1983 at and before he was present onJohn Cheppa’s property at 7176 Catherine Drive, West Hanover Township, Dauphin County, Pennsylvania, while under oath or equivalent affirmation, when he did not believe the statement to be true in that the falsification occurred in an official proceeding, to wit: a hearing before the Honorable Clarence C. Morrison, Judge of the Dauphin County Court of Common Pleas. a22 APPENDIX H Count IV False swearing: Did intentionally and knowingly, make a false statement, to wit: That he went to the property of John Cheppa at 7176 Catherine Drive, West Hanover Township, Dauphin County, Pennsylvania on August 5, 1983 for the purpose of unblocking waters from Catherine Drive at or near the said property of John Cheppa while under oath or equiva- lent affirmation, when the statement was material and he did not believe it to be true. All of which were against the peace and dignity of the commonwealth of Pennsylvania and contrary to the Act of assembly, or in-violation of 18 55 4902, 4903 of the Act of Pa. Crimes Code 1972. I ask that a summons be issued and that the accused be required to answer the charges I have made. I swear toor affirm the within complaint upon my knowledge, information and belief, and sign it on November 20, 1991, John Cheppa. SPECIAL AFFIDAVIT WAS MADE AND SIGNED ON THE ABOVE MENTIONED DATE. PTS ET Mea AP RL hee TEES ee ee a 23 APPENDIX J STATE COURTS; APPEAL; CERTIORARI Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. (2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. (3) By writ of-certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States. June 25, 1948, c. 646, 62 Stat. 929. a24 APPENDIX K UNITED STATES CONSTITUTION AMENDMENT V No person shall be held to answer for a capital, of otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia when in actual service in time of War or public danger; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. ecicccirinuiiililnniisiiasiaieie: i ee eee we bea a 25 APPENDIX L UNITED STATES CONSTITUTION AMENDMENT XIV Section 1. 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 privi- leges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in re- bellion, or other crime, the bases of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under a26 APPENDIX L any State, who, having, previously taken an oath, as a member of Congress, or as an officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. sibilities a 27 APPENDIX M PENNSYLVANIA RULES OF CRIMINAL PROCEDURE RULE 133. APPROVAL OF PRIVATE COMPLAINTS a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve aclear and present danger to any person or to the community, the complaint shall be submitted to an attor- ney for the Commonwealth, who shall approve or disapprove without unreasonable delay. (b) If the attorney for the Commonwealth (1) Approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority; (2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval; (3) Does not approve or disapprove within a reasonable period of time, the affiant may file the complaint on a separate form with the issuing authority, noting thereon that a com- plaint is pending before an attorney for the Commonwealth. The issuing authority shall determine whether a reasonable period has elapsed, and, when appropriate, shall defer action to allow the attorney for the Commonwealth an additional period of time to respond. a28 APPENDIX N PENNSYLVANIA RULES OF CRIMINAL PROCEDURE RULE 134. ISSUANCE OF PROCESS PURSUANT TO COMPLAINT (a) In any proceeding initiated by complaint, the issuing authority shall ascertain and certify on the complaint that: (1) The complaint has been properly completed and executed; (2) There is probable cause for the issuance of process, in the form of an affidavit; and (3) When prior submission to an attorney for the Common- wealth is required, that an attorney has approved the com- plaint. (b) Upon ascertaining the above matters, the issuing author- ity shall: (1) Accept the complaint for filing; and (2) Issue a summons or warrant of arrest as the case may be. 2558 ES en ink cr ade! APPENDIX P 18 Pa. C.S.A. ss 4902 FALSIFICATION AND INTIMIDATION Perjury (a) Offense defined. - A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. (b) Materiality. - Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defence that the declarant mistakenly believed the falsi- fication to be immaterial. Whether a falsification is material in a given factual situation is a question of law. (c) Irregularities no defense. - It is not a defense to prosecu- tion under this section that the oath or affirmation was admin- istered or taken in an irregular manner or that the declarant was not competent to make the statement. A document pur- porting to be made upon oath o: affirmation at any time when the actor presents it as being so verified shall be deemed to have been duly sworn or affirmed. (d) Retraction. - No person shall be guilty of an offense under this section if he retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the a30 APPENDIX P falsification substantially affected the proceeding. (e) Inconsistent statements. - Where the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alter- native that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true. re (f) Corroboration. - In any prosecution under this section, except under subsection (e) of this section, falsity ofa statement may not be established by the uncorroborated testimony of a single witness. 1972, Dec. 6, P.L. 1482, No. 334, ss 1, effective June 6, 1973. 18 Pa. ss 4903 (a) False swearing in official matters. - A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true is guilty of a misdemeanor of the second degree if: (1) the falsification occurs in an official proceeding: or (2) the falsification is intended to mislead a public servant in performing his official function. a 31 APPENDIX P (b) Other false swearing. - A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, when he does not believe the statement to be true, is guilty of a misdemeanor of the third degree, if the statement is one which is required by law to be sworn or affirmed before a notary or other person authorized to administer oaths. (c) Perjury provisions applicable. Section 4902(c) through (f) of this title (relating to perjury) applies to this section. 1972, Dec. 6, P.L. 1482, No. 334, ss 1, effective June 6, 1973. a32 APPENDIX Q PARAGRAPHS 8 AND 9 OF APPELLANTS FIRST COM- PLAINT TO THE TRIAL COURT WHERE THE U.S. CONSTI- TUTION WAS RAISED. 8. Rule No. 133 of the Pennsylvania Rules of Criminal Procedure as applied to this instant case is contrary to the United States and State of Pennsylvania Constitutions in that it is arbitrary and capricious by placing in the hands of one person complete control, with no standards, tests, elements or criteria to be followed, whether or not a criminal act can be prosecuted by a private individual. 9. The District Attorney’s refusal to approve the Private Criminal Complaint in question is contrary to the Constitu- tions of the United States and Pennsylvania in that it is arbitrary and capricious and does not provide equal protection of the laws and is discriminatory as to Affiant. EN et ty oS oe a 33 APPENDIX R IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA NO. 12 M. D. COMMONWEALTH OF PENNSYLVANIA v. STANLEY KITNER AND NOW, comes Richard A. Lewis, District Attorney of Dauphin County, by Deborah E. Curcillo, Senior Deputy Dis- trict Attorney, who, in answer to Affiant’s Petition, responds as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Denied. The district attorney’s Office did not abuse its discretion in failing to approve the private complaint. Mr. Cheppa has been pursuing this claim since 1985 (sic) there is no basis to his claim, and the information that he has provided to the District Attorneys’s Office does not establish, beyond a reasonable doubt, criminal charges against Mr. Kitner. 7. The Commonwealth has copied a letter from the District Attorney to Mr. Cheppa explaining the reasoning behind disp- proving the private criminal complaint. 8. Rule 133 of the Pennsylvania Rules of Criminal Procedure Apply to the discretion by the District Attorney’s Office in approving or disapproving private criminal complaints. The tiie aaa nnsene enim a34 APPENDIX R prosecutor is under no compulsion to prosecute every alleged offender, and decision to prosecute or not is a matter within his discretion, subject to review by Court of Common Pleas, Com- monwealth v. Malloy, 304 Pa. Super. 297, 450 A.2d. 689 (1982). Mr. Cheppa has submitted a private criminal complaint to the District Attorney’s office for approval, the District Attorney properly refused to prosecute, the District Attorney acted properly in disapproving the private criminal complaint based on the finding that the complainant would not be able to sustain the conviction on the charges proposed. The District Attorney has reviewed the material provided to this office by Mr. Cheppa. The falsification that Mr. Cheppa is claiming by Mr. Kitner, a township employee, does not affect the material outcome or the course of the proceedings. 9. Denied, the District Attorney's Office has discretion to approve or disapprove private criminal complaints. The Dis- trict Attorney has acted completely within his authority and in accordance with the law and did not abuse his discretion in refusing to prosecute the private criminal complaint filed by Mr. Cheppa. WHEREFORE, the Commonwealth respectfully requests this Honorable Court to disapprove the private criminal com- plaint against Mr. Stanley Kitner. Richard A. Lewis District Attorney ~ Deborah E. Curcillo Senior Deputy D.A. a 35 APPENDIX R LETTER OF ITEM 7 IN D.A.’S ANSWER: October 17, 1990 Dear Mr. Cheppa: Kindly excuse my delay in writing to you regarding your complaint against Mr. Kitner. -This Office has completed its review of the various investiga- tive materials and documents you provided. Unfortunately, we do not agree with your allegation that Mr. Kitner committed perjury. A person commits perjury if, in an official proceeding, he makes a false statement under oath when the statement is material and he does not believe it to be true. Under Pennsy!- vania law, the falsification is material if it could affect the course or outcome of the proceedings. It is our position that Mr. Kitner’s explanation, even if knowingly false, was not material to the outcome of the pro- ceedings. | have made arrangements with our County detectives to deliver your papers and other material to you within the next several days. Thank you. Richard A. Lewis District Attorney a36 APPENDIX S DISTRICT ATTORNEY STATES THAT MEMORANDUM FILED WITH THE TRIAL COURT WAS NOT EX PARTE BECAUSE CHEPPA SHOULD HAVE OBTAINED A COPY OF THAT MEMORANDUM FROM THECLERK OF COURTS. Cheppa argues that the trial court errored by accepting ex parte communications from the district attorney. This argu- ment is completely meritless, because the Appellant had actual notice that a memorandum was going to be filed, and the memorandum was filed and docketed with the court. Cheppa even acknowledges that in the Order dated the 26th day of February. 1991, Judge Schaffner required the District Attorney's Office to file a memorandum to provide the court with sufficient data to be able to review the matter. Appellant’s (brief at 27) pursuant to the order, the Commonwealth did file a memoran- dum in the case at No. 12 M.D. 1991. The memorandum was filed on March 15, 1991, as is evidenced by the Clerk of Courts docket entry sheet. (see R.R. at 2a) Contrary to the assertion that an ex parte communication occurred, Cheppa had actual notice that a memorandum would be filed by the Common- wealth. Why Cheppa failed to ascertain whether a memoran- dum had, in fact, been filed is beyond the scope of the Commonwealth’s argument. Regardless of Cheppa’s failure, the trial court accepted no ex parte communications from the district attorney. Therefore, this issue is meritless and the order of the trial court should be affirmed. a 37 APPENDIX T1 WITNESS TO KITNER-CHEPPA AGREEMENT JOHN ROBINSON JR. - ATTORNEY May 9, 1991 To whom it may concern: On August 5, 1983, the West Hanover Township Road Crew came to the Cheppa property at 7176 Catherine Drive to remove the soil from the Cheppa property. At that time the Township authorities in charge - Robert Landon, supervisor and Stanley Kitner, foreman - agreed that they would not enter the Cheppa property and also agreed that the soil placed by Cheppaon the township’s right-of-way belonged to Mr. Cheppa and that the Road Crew would remove that fill from the right- of-way and place it upon the Cheppa property. a38 APPENDIX T2 MR. KITNER TESTIFIES THAT HE USED THE SOIL OFF OF THE CHEPPA PROPERTY TO BACKFILL OVER THE NEWLY INSTALLED STORM DRAIN PIPE, AUGUST 26, 1986, PP. 103 - 104: Mr. Kitner also testified that the soil which he had previ- ously removed from the right of way belonged to Mr. Cheppa: Q. Now, you testified, I think, correct me if I am wrong, that there was soil that was on Mr. Cheppa’s property that you did push over into the ditch, correct? A. That’s correct. It was out on the driveway in the beginning. Q. Correct. And some of that soil was soil that had been on the right-of-way in 1983, correct? _A. What was your question? Q. Some portion of that soil that you pushed into the ditch had been on the right-of-way in 1983, in August, correct? A. That’s exactly right. He didn’t have permission to put it there. Q. But that was soil that he had placed there? It was his soil? A. And he put it in my right-of-way. Q. So, you took his soil and then pushed it back up into his property? A. To get the water off the road. a 39 APPENDIX T2 Q. Fine. And that then is Mr. Cheppa’s soil that was on the property that you pushed into the ditch? A. Exactly right, sir, so we could back up over there to get more fill in. [ N.T. p. 103, Ls. 11-25; p. 104, Ls.1-11.] a40 APPENDIX T3 MR. KITNER TESTIFIES THAT HE DID HAVE THE CHEPPA CONTRACT, THAT HE STUDIED THAT CON- TRACT AND VOTED ON IT AS TOWNSHIP SUPERVISOR. AUGUST 26, 1986, p. 105 & 115: Q. Mr. Kitner, | am going to show you acopy of the agreement that was made between — it says between the Board of Supervisors of West Hanover Township and John Cheppa, right? See where I am reading? A. Go ahead. Q. And you are one of those supervisors, aren’t you? A. Now, yes. Q. And you do remember reviewing this, don’t you? A. Yes. Q. And I assume that the Board took a vote on that, correct? A. I would say. Q. And you voted in favor of it? A. Yes. Q. And you knew, didn’t you, that you would be the one that would actually be doing the work, didn’t you? A. That’s right. Q. And I assume, am correct, sir, that you carefully reviewed the plan of proposed drainage facilities as part of a 41 the plan? A. I might tell you — I have that copy. Q. You have the original? A Yes, indeed. Q. And you studied it carefully? A. Yes, indeed. [1986 case; N.T. P. 105, Ls. 17-25, P. 106, Ls, 1-19] Q. I want to show you again the agreement that was signed in March of 1985. Now, I am directing your attention to Paragraph S and the portion that appears on Page 3. Again, you have told me that you reviewed this carefully before you signed it, right? A. Right. (N.T. p. 115, Us 10-15.) a42 APPENDIX T4 MR. KITNER TESTIFIES THAT HE DID NOT HAVE A COPY OF THE CHEPPA CONTRACT AND DID NOT KNOW WHERE TO GET THE DIRT TO FILL OVER A PIPE FROM. JULY 13, 1988, PP. 62 - 64: Q. Now, who in the township, Mr. Kitner, informed you what your obligations were as to filling the ditch that was going to be constructed and drainage pipe installed, who in the township told you what to do? A. The supervisors at the time. Q. Did they give you a copy of the contract so that you would know what you were supposed to do? Did they give you a copy of the contract? A. No. Q. How did you know where you were to get the fill? A. They told me. [1988 case; N.T. P. 62, Ls. 15-25] Q. But Mr. Kitner, the question is where were you to get the fill to fill the ditch? A. After we put the pipe in and pushed this fill over there, we were to get the fill from road work we had, we were doing the rest of the season off the stock pile. Q. You were supposed to do what paragraph 5 said, isn’t that correct? A. We did. Q. Did you know that is what you were supposed to do? ———eEE__ a 43 APPENDIX T4 A. We did haul fill. Q. Did you know that was what you were supposed to do? A. I didn’t have that agreement. Q. You didn’t know where you were supposed to get the fill, isn’t that true? A. But we had to — Q. Isn’t it true? A. Yes, but we still had to move that fill. Q. Isn’t it true you didn’t know what the contract said were you were to get the fill? A. I didn’t have no contract. Q. You didn’t have the contract. ... [1988 case; N.T. P. 63, Ls. 18-25; P. 64, Ls. 1-13] APPENDIX T5 ) 7,199 To whom it may concern: I, Metro Lynn, do hereby state that I witnessed the hearing before District Justice Samuel Magaro on July 21, 1987, in the case of John Cheppa Vs. West Hanover Township, Ta 87-427 and it is further stated that at that hearing, Mr. Stanley Kitner testified that the dirt from the right-of-way in front of the Cheppa property used to cover the pipe beneath the Cheppa property belonged to West Hanover Township. Metro Lynn a 45 APPENDIX T6 MAY 3, 1991 To whom it may concern: I, Lynn Uria, do hereby state that I witnessed the hearing before the Board of Arbitrators on March 28, 1988, in the case of John Cheppa vs. West Hanover Township and it is further stated that at that hearing Mr. Stanley Kitner stated that the dirt from the right-of-way in front of the Cheppa property which was used to cover over a pipe beneath the Cheppa property belonged to West Hanover Township. Lynn Uria a46 APPENDIX T7 MR. KITNER TESTIFIES THAT HE CAME TO THE CHEPPA PROPERTY BECAUSE OF HIS DUTY UNDER THE LAW AND HEAVY RAIN AND FLOODING AND THAT HE AND CHEPPA HAD AN AGREEMENT ABOUT THE SOIL FROM THE RIGHT-OF-WAY, JULY 13, 1888. PERJURED TESTIMONY: From the Transcript of Case No. 3171 5, 1987 Heard by Clarence C. Morrison, Judge, July 13, 1988, under direct examination. PAGE 43 Q What is your elected capacity? A Township supervisor. Q __— Have you otherwise held any employment with West Hanover Township prior to being elected supervisor? A _ Yes, I have. Q ~What is that? A _ I have been employed with the township for 30 plus years and I| have been road foreman for 24 years. Q___ Asroad superintendent what are your general duties? A Makesure that the roads are in the best of shape as far as building and materials that we have. Q Over thecourse of your 24 years of experience have you become aware of what your responsibilities are under the terms of the Second Class Township Code? APPENDIX 17 aliel A Yes. Q -~Withrregard particularly to roads. What is your respon- sibility. A ___ Toroads we are to have the ditches open the best we can and all pipes and drainages open. Q __~ With regard to the roads, just roads first of all, what is your responsibility? A Keep the roads clear. PAGE 44 Q___ And to do what else, maintain them? A Maintain them. Q __ Do you know if that provision is found in the Second Class Township Code? A Yes, it is. Q =‘ Mr. Kitner, I show you acopy of a page from the Second Class Township Code. You just indicated that your responsibili- ty as you understand it to be was to repair and maintain the roads. Is that correct? A Correct. Q __— Without necessarily reading it, read it to yourself. Does that section of the code that you are looking at right now set forth that responsibility? A Yes. Qs And at the bottom of that section there is a reference to a section number. Would you identify that for the Court? a48 APPENDIX T7 A 1110. Q___s‘That is found in volume 53 of Purdon’s Statutes, section number what? A 66110. PAGE 46 Mr. Cleckner: Your Honor, that wouldn’t change whether or not they supplied the fill which is the issue before this Court. Mr. Wass: I submit it does change it. THE COURT: All right. We are going to allow some limited exploration of that matter. Of course we have some under- standing of what those responsibilities are, but to the extent you think it is necessary to put that on the record, Mr. Wass, we are going to allow it. f Q = Mr. Kitner, with regard to keeping open ditches, have I just shared with you a copy of the provision of the Second Class Township Code with which you are familiar? A Yes. Q __s Does that section set forth your re-sponsibility regard- ing ditches? PAGE 47 A Yes. Q What is the Purdon’s Statute reference, 53 Purdon’s Statute, what section number? A 66152. ———————ax&x«xwvxaxa-™-”-» = a 49 APPENDIX T7 Q Now, let me direct your attention, Mr. Kitner, to the date of August 5, 1983. Would you indicate to the Court whether or not you received a complaint funneled to you through the township administration office? A At that date we had heavy rain and we got a call at the garage from the municipal building that the water was being blocked up on Catherine Drive. Q When you got that complaint, what did you do? A _ I answered the complaint. Q Specifically, did you go out to the location? A __ I went to the location, found water was being blocked up, found a lot of dirt dumped on our right-of-way, some of the black top, our cart way. Q__ Leads of fill? A Leads of fill. Q _— Did youknow who the owner of the property was where most of the fill was located? A Yes, I did. Q = That was Mr. Cheppa? A Mr. Cheppa. PAGE 50 Q __— Getting back to August 5, 1983. When you observed the quantity of fill on the roadway and some in the ditch, what did you determine to do? a50 - APPENDIX T7 A _ Iradioed, dispatched a township crew from our garage and they brought 2 trucks and a front end loader there. Q Why? A We were going to get rid of the water off the highway. Q ‘What was happening with the water? A _ Blocked up the gutter which would have blocked up the pipe and into peoples’s basements. Q_ With regard to this ditch, what [that] was the drainage swale you have now called a ditch? A Correct. He created the problem. He filled it shut. PAGE 51 Q But that passageway had debris in the bottom of it, that is what you are saying? A _ Right. Q __ Right in the location of where the swale was and should have been? A Absolutely. : Q = That was causing the back up of water? A _ Absolutely. Q = Onto the roadway? ODPrODHO > a 51 APPENDIX T7 Yes. So you decided to remove the soil? A Correct. What were the weather conditions that day? Raining, heavy rain. When you first went to that project, how many pieces of equipment did you take with you? A I went by myself. Then I dispatched a front end loader and 2 trucks. Q A Q Dump trucks? Two dump trucks. What was your purpose in calling the dump trucks and front end loader? A Our purpose was, we were going to haul that dirt away. PAGE 52 Q Why were you going to haul it away? A _ To let the water down the ditch where it belongs. PAGE 53 Q =‘ That was your initial effort? A Correct. Q ‘Your initial option. Did you have another option avail- a52 APPENDIX T7 able to you? A Myother option was, it was pouring down rain and Mr. Cheppa came out there with his tractor and every time we wanted to work he moved his tractor in front of us. In the meantime (I wasn’t supervisor at that time) one of the super- visors and state police came, and said we had to get rid of it. Q ___sIt was raining? A _ It was raining. Q Youdidn’t move it to its stockpile, what did you do with it? A — We pushed it up over the edge of the bank. Q___ Right onto that triangular piece at the end of Mr. Cheppa’s property? A Correct. Q =~ Why did you do that? A _ It was pouring down rain and to the best efforts of the township and road and state police when you had put it there that we wouldn’t have everything else all messed up with mud, rock and dirt. PAGE 54 Q ___siIt was raining. You wanted to get the job done quickly? A Correct. Q You didn’t want to mess up the other township roads with mud, is that what your point was? a 53 APPENDIX T7 A That is what I am saying. Q Instead of stockpiling it at the township location, you pushed it right on Mr. Cheppa’s property? A Right. PAGE 57 Q Again, Mr. Kitner, going back to the date of August 5, 1983, when you were out there in the presence of Mr. Cheppa, did you hear him state on his direct examination that you insisted that he prepare and sign some sort of agreement. A I heard him say that, but I don’t recall of that. It as pouring down raining. We wanted to get the job done and get the water off the highway Q Doyou recall at all whether Mr. Cheppa signed and gave you any form of agreement? A No. If it would be true, I would like to see it. a54 APPENDIX T8 OPENING STATEMENTS IN SUPPORT OF PERJURUS TESTIMONY: From the Transcript of Case No. 3171 5, 1987 Heard by Clarence C. Morrison, Judge - July 13, 1988 PAGE 6 A lot of fill had been placed out on the Township’s right-of- way of Catherine Drive and some of it, in fact, out to the paved cart way, and on a day when it was raining quite heavily complaints were received that the water was backing up. There was some danger neighboring basements might get flooded with water backup... PAGE 7 The issue is, Your Honor, that the soil that the Township removed from a public right-of-way or from the ditch right-of- way, it had authority to do under the Second Class Township Code. It could have hauled it away and stock piled it. The Township left it there and stock piled it and then later on when the responsibility of filling the ditch in arose in part, the ditch was filled from that stock pile fill that had originally been removed from the township property. We do claim credit for it, Your Honor. CLOSING STATEMENTS IN SUPPORT OF PERJURUS TESTIMONY: From the Transcript of Case No. 3171.5, 1987 Heard by Clarence C. Morrison, Judge - July 13, 1988 PAGE 10 Because of the rain and the conditions that existed on that day the necessity to move quickly) that fill, instead, was i a 55 APPENDIX T8 stockpiled on the property of Mr. Cheppa, and was utilized later. We referenced in our testimony provisions of the Township, Second Class Township Code, which imposed these responsi- bilities on the Township. In fact, the one section we referred to with regard to keeping clear ditches speaks of a property owner who does cause a ditch to be blocked or filled up, can be guilty of a criminal offense, and we submit that is exactly what occurred on August 5, 1983, when Mr. Kitner and his road crew went out and moved that fill. Having found fill on Township property, it become Township fill. It was not any longer Mr. Cheppa’s fill. He had brought that fill to that location. It is true. But having deposited it on a Township roadway, it is no longer his fill and it is the Township’s to do with what it wishes, and as I say, it could have been stock piled it on its own property or as it did, it could have stock piled it on Mr. Cheppa’s property. by: Mr. Carl Wass, Esquire 3631 North Front Street Harrisburg, Penna. Attorney for Mr. Kitner APPENDIX T9 WITNESSJOHN ROBINSON’S STATEMENT OF NO RAIN ON AUGUST 5, 1983 AT THE CHEPPA PROPERTY: January 990 To whom it may concern: [ was at the Cheppa property on August 5th, 1983, arriving there in the early [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1145%3A1. Public record. Not legal advice.