Doc.1.00
LAWRENCE COUNTY
COURT OF COMMON PLEAS
COMMON LAW DIVISION
COMMONWEALTH OF PENNSYLVANIA 10- 10- 2011
Plaintiff in error
Vs.
S. A. 75 of 2010 S. A. 76 of 2010
John Doe
Defendant in error
SWORN MOTION TO VACATE VOID JUDGMENTS AND DISMISS
SUMMARY APPEALSFOR WANT OF SUBJECT MATTER JURISDICTION
1.00 I, John Doe,One of the People of Pennsylvania and defendant in error appearing ab invitoin the instant matter, after having been first personally and duly affirmed according to law, state that I am your affiant hereinafter AFFIANT, and have [personally verified these facts] of the undisputed material and jurisdictional facts herein, that I am competent to testify in these matters, and that these facts are true and correct.
1.01 AFFIANT as One of the People of Pennsylvania, is not a “resident” of THE STATE OF PENNSYLVANIA.
“Residents as distinguished from citizens, are aliens who are permitted to take up a permanent abode in the country. Being bound to the society by reason of their dwelling in it, they are subject to its laws so long as they remain there, and, being protected by it, they must defend it, although they do not enjoy all the rights of citizens. They have only certain privileges which the law, or custom, gives them. Permanent residents are those who have been given the right of perpetual residence. They are a sort of citizen of a less privileged character, and are subject to the society without enjoying all its advantages. Their children succeed to their status; for the right of perpetual residence given them by the State passes to their children.” [The Law of Nations, Vattel, Book 1, Chapter 19, Section 213, p. 87]
1.02 AFFIANTisproceeding pursuant to his inherent unalienable Rightsas One of the People of Pennsylvania and haschallenged the subject matter jurisdiction of the court pursuant to his inherent unalienable right to challenge his fellow political trustors whenever, in their official capacity as political trustees they propose to have the authority make criminal accusations and summon AFFIANT before a de facto ad hoc summary proceeding.Once challenged the burden shifts to the complaining party to prove their jurisdiction in the record.
“Once jurisdiction is challenged, it must be proven:” Hagens v. Lavine, 415 U. S. 528, 94 S. Ct. 1278, 39 L. Ed. 2d. 577.
“Where plaintiff’s preliminary objections raised the question of jurisdiction over the subject matter, although improperly, the court was bound to decide it, since the court was bound to decide such issue on its own motion if necessary.” Department of Highways v. Di Joseph, 41 Pa. D. & C. 2d 435 (1967)
1.03 This sworn motion in affidavit form is being used to develop legally admissible, incontrovertible evidence of the want of subject matter jurisdiction of District Court 53-3-02 and The Lawrence County Court of Common Pleas in this proceeding styled as a “summary appeal” under 42 Pa. C. S. in its Oyer and Terminer/Legislative Tribunal jurisdiction and all state actors involved in the instant matter should a collateral attack be required in the United States District Court in Pittsburgh, Pennsylvania. It is based on our personal knowledge of the obvious relevant facts and laws.
“Sworn allegations not denied are established.” 60 C. J. S. Section 37 (5) Motions and Orders; see also California Title Insurance & Trust Co. v. Consolidated Piedmont Cable Co. 49 P 1., 117 Cal. 237
When no traverse is filed to a sworn motion to dismiss, the court must base its ruling on: “the facts alleged in the motion to dismiss.” State v. Palaveda, 745 So.2d 1026, 1027 (Fla. 2d DCA 1999)
“Indeed, no more than (affidavits) is necessary to make the prima facie case.” United States v. Kis, 658 F. 2d, 526 (7th Cir. 1981)
“Uncontested allegations of fact in affidavit must be accepted as true.” Morris v. National Cash Register Co. 44 S.W. 2d 433
1.04 Absent contradictory evidence of at least equal weight provided by the court and all state actors involved,in the form of an affidavit under penalty of perjury to traverse, rebut, or deny each specific averment by a witness with personal knowledge of the facts contained in this motion means these jurisdictional facts will be established as the only jurisdictional facts in the record. There will be no presumptions of jurisdiction:
In the later case of Galpin v Page, supra, at 365, 366. 368, decided after, but in the same term as, Thompson v Whitman, the court, after referring to the general rule as to the presumption of jurisdiction in superior courts of general jurisdiction, said that such presumptions ‘only arise with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment is made. When, therefore, the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.’ In the same case: ‘It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court; by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered.’ Old Wayne Mutual Life Assn. v McDonough, 204 US 8 (1907) (emphasis added)
“Presumptions are indulged to supply the absence of facts, but never against ascertained and established facts:” Boggs v. Merced Mining Co., 70 U. S. 304, 3 Wall. 304, 18 L. Ed. 245 (1859).
“There is no presumption in favor of jurisdiction, and the basis for jurisdiction must be affirmatively shown.” Hanford v. Davis, 163 U. S. 273, 16 S. Ct. 1051, 41 L. Ed. 157 (1896).
1.05 This sworn motion will serve the double function as a list of admissions that the court and all state actors involved have agreed and stipulated to in the event that all state actors involved do not directly rebut each and every averment in this sworn motion. Failure to rebut a particular averment with evidence shall constitute an estoppel in pais barring any attempt to controvert said facts established herein:
“Equitable estoppel, or estoppel in pais, is a term applied usually to a situation where, because of something which he has done or omitted to do, a party id denied the right to plead or prove an otherwise important fact. 2. The term has also been variously defined, frequently by pointing out one or more of the elements of, or prerequisites to 3. the application of the doctrine or situations in which the doctrine is urged. 4. The most comprehensive definition of equitable estoppel or estoppel in pais is that it is the principle by which a party who knows or should know the truth is absolutely precluded, both at law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion was allowed. 5. In the final analysis, however, an equitable estoppel rests upon the facts and circumstances of the particular case in which it is urged, 6. considered in the framework of the elements, requisites, and grounds of equitable estoppel, 7. and consequently, any attempted definition usually amounts to no more than a declaration of an estoppel under those facts and circumstances. 8. The cases themselves must be looked to and applied by way of analogy rather than rule. [American Jurisprudence 2d, Estoppel and Waiver, Sec. 27, definitions and nature]
1.06 If the court and all state actors involved continue this presumptuous, illegal, vexatious ad hoc summary proceeding against AFFIANT in the instant matter without first establishing in the record any jurisdictional facts contrary to those averred in this sworn motion it will be said state actors tacit admission that they are proceeding coram non judice. Hence said proceeding will be collaterally attacked pursuant to USC Title 42 section 1983, R.I.C.O., and/or any other federal or state felony statutes pertaining to those state actors that conspire to proceed in a felonious manner under color of state law,or color of their office, as the matter warrants.
“The requirement that jurisdiction be established as a threshold matter…is ‘inflexible and without exception,’ ” Steel Co. v. Citizens for Better Environment, 523 U. S. 83 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 4 S. Ct. 510, 28 L. Ed. 462 (1884).
“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining is that of announcing the fact and dismissing the cause:” 523 U. S. at 94 (quoting Ex parte Mc Cardle, 7 Wall. 506, 514 (1869).
[BOROUGHS] AS LOCAL AGENCIES
2.00 [Law Enforcement ] Officer Thomas E. Macriproceeding under color of authority and color of office cited AFFIANT multiple times allegedly for violating Bessemer Borough “JUNK VEHICLE ORDINANCE” Ordinance No.2 OF 2012,with colorable process styled as “COMMONWEALTH OF PENNSYLVANIA NON-TRAFFIC CITATION SUMMONS.
2.01 Pursuant to 2 Pa. C. S. Section 101, Bessemer Boroughis a “Government agency.”
2Pa. C. S. Sec. 101 “Government agency.” Any Commonwealth agency or any political subdivision or municipal or other local authority, or any officer or agency of any such political subdivision or local authority.
2.02 Pursuant to 2 Pa. C. S. Sec. 101 Bessemer Borough is a “Local agency.”
2 Pa. C. S. Sec. 101 “Local agency.” A government agency other than a Commonwealth agency.
2.03 Pursuant to 2 Pa. C. S. Sec. 101 Bessemer Borough is a “Government unit.”
2 Pa. C. S. Sec. 101 “Government unit.” The General Assembly and its officers and agencies, any government agency or any court or other officer or agency of the unified judicial system.
2.04 Bessemer Borough as a government agency/local agency is subject to one or the other of the two hearing requirements 2 Pa. C. S. Sec. 101, 501 and 551.
§ 551. Scope of subchapter.
This subchapter shall apply to all local agencies.
2.05 2 Pa. C. S. Sec. 552 states that Bessemer Borough as a local agency must allow any party to be represented at the hearing.
§ 552. Representation.
Any party may be represented before a local agency
2.06 2 Pa. C. S. Sec. 553 states that Bessemer Borough as a local agency must provide reasonable notice of a hearing to any party and an opportunity to be heard.
§ 553. Hearing and record.
No adjudication of a local agency shall be valid as to any
party unless he shall have been afforded reasonable
notice of a hearing and an opportunity to be heard. All
testimony may bestenographically recorded and a full
and complete record may bekept of the proceedings. In
the event all testimony is notstenographically recorded
and a full and complete record of theproceedings is not
provided by the local agency, such testimonyshall be
stenographically recorded and a full and completerecord
of the proceedings shall be kept at the request of anyparty
agreeing to pay the costs thereof.
2.07 2 Pa. C. S. Sec.554 states that Bessemer Borough as a local agency must allow all relevant evidence to be received and reasonable examination and cross-examination to be permitted at said hearing.
. § 554. Evidence and cross-examination.
Local agencies shall not be bound by technical rules of
evidence at agency hearings, and all relevant evidence of
reasonably probative value may be received. Reasonable
examination and cross-examination shall be permitted.
2.08 2 Pa. C. S. Sec. 555 states that Bessemer Borough as a local agency must provide in writing an adjudication containing the findings and the reasons for the adjudication and serve said adjudication upon all parties or their counsel personally or by mail.
§ 555. Contents and service of adjudications.
All adjudications of a local agency shall be in writing,
andshall contain findings and the reasons for the adjudication, and shall be served upon all parties or their counsel personally, orby mail.
2.09 2 Pa. C. S. Sec. 101 states that the term “adjudication” does not include any order based upon a proceeding before a court or that involves the seizure or forfeiture of property.
§ 101. Definitions.
"Adjudication." Any final order, decree, decision,
determination or ruling by an agency affecting personal or
property rights, privileges, immunities, duties, liabilities or
obligations of any or all of the parties to the proceeding in
which the adjudication is made. The term does not include
any order based upon a proceeding before a court or which
involves the seizure or forfeiture of property, paroles,
pardons orreleases from mental institutions.
2.10 AFFIANT have never been provided an opportunity to obtain representation pursuant to 2 Pa. C. S. Sec. 552.
2.11 AFFIANT have never been provided notice of a hearing or the opportunity to be heard pursuant to 2 Pa. C. S. Sec. 553.
2.12 AFFIANT have never had an opportunity to present evidence or cross-examine our accusers pursuant to 2 Pa. C. S. Sec. 554.
2.13 AFFIANT have never been served either personally or through counsel with an adjudication by any means pursuant to 2 Pa. C. S. Sec. 555.
2.14 AFFIANTis one of the People of Pennsylvania and is not a “person” as defined at 2 Pa. C. S. Sec 101.
"Person."
Includes a government unit or an agency of the
Federal Government.
2.15 Pursuant to 2 Pa. C. S. Sec 101, you have to be a person as defined in Sec. 101 to be a “party” to any “matter” before a local agency.
Sec.101
“Matter.”
Action, proceeding or appeal.
“Party.”
Any “person” who appears in a “proceeding” before anagency who has a direct interest in the subject matter of such proceeding.
2.16 AFFIANTis not of the class of “persons” as defined in 2 Pa. C. S. Sec 101 and therefore cannot be a party to any matter before Bessemer Borough.
MAGISTERIAL DISTRICT JUDGESUMMARY JURISDICTION
3.00 2 Pa. C. S. Sub chapter B JUDICIAL REVIEW OF LOCAL AGENCY ACTION Sec. 751 states that Subchapter B applies to all local agencies.
§ 751. Scope of subchapter.
(a) General rule.--Except as provided in subsection (b),
this subchapter shall apply to all local agencies regardless
ofthe fact that a statute expressly provides that there shall
beno appeal from an adjudication of an agency, or that the
adjudication of an agency shall be final or conclusive, or
shallnot be subject to review.
(b) Exception.--The provisions of this subchapter shall
apply to any adjudication which under any existing statute
maybe appealed to a court of record, but only to the extent
notinconsistent with such statute.
3.01 2 Pa. C. S. Sec. 752 states that you must be a person aggrieved by an adjudication before you have the Right to appeal.
§ 752. Appeals.
Any person aggrieved by an adjudication of a local agency whohas a direct interest in such adjudication shall
have the rightto appeal therefrom to the court vested with
jurisdiction ofsuch appeals by or pursuant to Title 42 (relating to judiciaryand judicial procedure).
3.02 2 Pa. C. S. Sec. 752 states that said appeals from adjudications must be taken to the court vested with jurisdiction of such appeals pursuant to 42 Pa. C.S.
3.03 Justice of the Peace Jennifer L. Nicholson dba as a Magisterial District Judge under 42 Pa. C. S., with full knowledge that AFFIANTS had not been and could not be a party to any matter before Plain Grove Township and no adjudication had been rendered by Plain Grove Township, proceeded under color of law to initiate a vexatious ad hoc summary proceeding as if District Court 53-3-02 had original “summary jurisdiction” as defined at 42 Pa. C. S. Sec 1515 (a) (1) in such matters.
42 Pa. C. S. Sed. 1515 (a)(1) Summary offenses, except those arising out of thesame episode or transaction involving a delinquent act forwhich a petition alleging delinquency is filed under chapter 63 (relating to juvenile matters).
3.04 Jennifer L. Nicholson continued with this vexatious ad hoc summary proceeding even though the Lawrence County District Attorney failed to appear to represent the Commonwealth as required by law.
16 P. S. Section 1402 (a) “[t]he district attorney shall . . . conduct in court all criminal and other prosecutions, in the name of the Commonwealth . . . which arise in the county for which he is elected . . .”
3.05 Thomas E. Macri acting in concert with Jennifer L. Nicholson proceeded to usurp the authority of the District Attorney and represent the Commonwealth.
“usurpation” for which writ of prohibition may be granted involves attempted exercise of power not possessed by inferior officer. (Cites omitted) Black’s 4th p. 1713
3.06 In Pennsylvania it is illegal for a person to represent a third party in a legal matter before Pennsylvania courts and most administrative agencies without a license to practice law.
42 Pa. C. S. A. Sec. 2524 Any person who within this Commonwealth shall practice law, or who shall hold himself out to the public as being entitled to practice law, or use or advertise the title of lawyer attorney at law attorney, and counselor at law, counselor, or the equivalent in any language, in such manner as to convey the impression… commits a misdemeanor of the third degree.
“It has been the law for the better part of two centuries, for example, that a corporation may appear in federal courts only through licensed counsel. As the courts have recognized, the rationale for the rule applies equally to all artificial entities.” Rowland v. California Men’s Colony, 506 US 194, 201-202 (1993)
It is well settled that, with a few exceptions not applicable here, non-attorneys may not represent parties before the Pennsylvania courts Shortz v. Farrell, 327 Pa. 81, 193and most admininstrative agencies. A. 20 (1937); Nolan v. Department of Public Welfare, 673 A.2d 414 (Pa.Cmwlth.1995), petition for allowance of appeal denied, 546 Pa. 650, 683 A.2d 887 (1996); McCain v. Curione, 106 Pa.Cmwlth. 552, 527 A.2d As the instant matter is the Ministries' appeal of the591 (1987). denial of its application, it may not be represented by its pastor, a See Smaha v. Landy, 162non-attorney, in this appeal in this Court. Pa.Cmwlth. 136, 638 A.2d 392, petition for allowance of appeal denied, 539 Pa. 660, 651 A.2d 546 (1994) (A non-profit medical corporation must have counsel in order to proceed in a court action as a corporation cannot represent itself.); Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 480 A.2d 281 (1984) (A corporation may not appear in court and be represented by a corporate officer and shareholder who is not an attorney.)
3.07 In Pennsylvania it is a violation of the Pennsylvania Rules of Professional Conduct for a lawyer to:
Rule 8.4 (a)-(c)
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or to do so through the acts of another.
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, (or)
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…
3.08 Jennifer L. Nicholsonas a Justice of the Peacedba as a Magisterial District Judge as defined at 42 Pa. C. S. Sec. 102 is a court of statutory, inferior, or special/limited jurisdiction and hence there is no presumptions of jurisdiction.