PHILADELPHIA, PENNSYLVANIA
| Terance Healy | : Superior Court of Pennsylvania |
| (Appellant/Defendant) | : #1330 EDA 2013 |
| : | |
| v. | : |
| : | |
| Sonya Healy | : |
| (Appellee/Plaintiff) | : |
| TABLE OF CONTENTS | |
| COURT OF COMMON PLEAS LACKED JURISDICTION | 3 |
| THE PENDING APPEAL FILED AUGUST 15, 2011 | 3 |
| PETITION TO PROCEED IN FORMA PAUPERIS – IGNORED | 3 |
| THE APPEAL FILED AUGUST 15, 2011 IS PENDING | 4 |
| PETITION FILED MAY 18, 2012 | 4 |
| REASSIGNMENT TO JUDGE PAGE | 5 |
| THE ORDER OF APRIL 3, 2013 | 6 |
| SEPTEMBER 23, 2011 | 7 |
| A NESTED LACK OF JURISDICTION | 8 |
| PROCEDURALLY DEFECTIVE AND VOID ORDER OF May 9, 2011 | 9 |
| NO EVIDENCE WHICH SUPPORTS JURISDICTION | 9 |
| EVIDENCE IN THE COURT RECORD | 10 |
| FAILURE TO FOLLOW RULES OF CIVIL PROCEDURE | 10 |
| THE OPINION FILED IN THE AUGUST 15, 2011 APPEAL TO SUPERIOR COURT | 12 |
| TREASON | 19 |
| JUDICIAL IMMUNITY | 20 |
| CONSTITUTIONAL CHALLENGE | 21 |
| FEDERALLY | 21 |
| OBSTRUCTION OF JUSTICE | 21 |
| OPINION DATED JUNE 28, 2013 | 22 |
| SIGNATURE | 23 |
COURT OF COMMON PLEAS LACKED JURISDICTION
1. The Court of Common Pleas lacked jurisdiction to hear the matter while an appeal was pending.
THE PENDING APPEAL FILED AUGUST 15, 2011
2. A NOTICE OF APPEAL had been filed in this matter on August 15, 2011 as is evidenced on the Court Docket at Sequence #326
3. The Notice of Appeal, Request for Transcripts and Certificate of Service were filed concurrently with a Petition to Proceed In Forma Pauperis. Court Docket at Sequence #326 through 330
4. On August 25, 2011, The Appeal was acknowledged by Judge Carolyn Carluccio by ordering a Concise Statement Of Errors Complained of On Appeal per PA Rules of Appellate Procedure 1925(b). Court Docket at Sequence #333
5. On September 15, 2011, Appellant filed a Concise Statement of Errors Complained of On Appeal and served it upon the parties and Judge Carolyn Carluccio. Court Docket at Sequence #345
PETITION TO PROCEED IN FORMA PAUPERIS - IGNORED
6. Failing to act in accordance with Rules of Appellate Procedure 210 Rule 552(e) the Court of Common Pleas neglected to consider or take any action on the Petition to Proceed In Forma Pauperis.
7. The Petition to Proceed In Forma Pauperis was IGNORED – neither approved nor denied. The court did not indicate any reason.
8. Appellant petitioned the Court to schedule the Petition to Proceed In Forma Pauperis on August 19, 2011. Court Docket at Sequence #332
9. Appellant petitioned the Court to schedule the Petition to Proceed In Forma Pauperis on September 1, 2011. Court Docket at Sequence #341
10. Appellant refiled a duplicate Petition to Proceed In Forma Pauperis on September 19, 2011. Court Docket at Sequence #350
11. Failing to act in accordance with Rules of Appellate Procedure 210 Rule 554(b), the Montgomery County clerk neglected to transmit a copy of the application under Rule 552; NOR did the clerk transmit notice to the appellate prothonotary of the pendancy thereof for the purposes of this rule.
12. In Accordance with Rules of Appellate Procedure 210 Rule 553, on September 20, 2011, Appellant notified the Superior Court of the Appeal and the failure of the lower court to consider a hearing on the Petition to Proceed In Forma Pauperis. Superior Court Docket 104 EDM 2011
13. Where the lower court failed to transmit any notice of the appeal to the Superior Court, on October 14, 2011, The Superior Court denied the petition indicating a lack of jurisdiction to act where no appeal was pending. Superior Court Docket 104 EDM 2011
THE APPEAL FILED AUGUST 15, 2011 IS PENDING
14. On October 19, 2011, Judge Carolyn Carluccio filed an Opinion relating to the Appeal. Court Docket at Sequence #355
15. As the Notice of Appeal has been filed and the Superior Court had been notified of the Appeal by the direct filing in Superior Court (# 104 EDM 2011), the Appellant/Defendant had met all of the requirements of the Rules of Appellate Procedure for filing an Appeal.
16. Pursuant to 210 Rule 1701(a) of the Rules of Appellate Procedure.
“Except as otherwise prescribed by these rules, after a appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.”
17. Jurisdiction for the matter was transferred to the Superior Court of Pennsylvania pending their review and instructions.
PETITION FILED May 18, 2012
18. Appellee/Plaintiff, represented by Angst & Angst, filed a Petition on May 18, 2012. Court Docket at Sequence #356
19. Appellee/Plaintiff, represented by Angst & Angst, failed to serve the Petition to Appellant/Defendant. The court docket confirms this as no certificate of service is filed relating to the petition until after the Short List Conference on July 10, 2012. Court Docket at Sequence 363
20. Appellant Defendant filed an eleven (11) sentence response to the petition on July 10, 2011 and served it upon Angst & Angst. Court Docket at Seq #360, 361
21. During a Short List Conference on July 10, 2012, Judge Richard Haaz corrected the Appellee/Plaintiff's procedural error and had the petition served upon the Appellant/ Defendant.
22. During the Short List Conference, Judge Richard Haaz addressed the actions of Angst & Angst who had written to Court Administration requesting to have him removed from the matter.
23. During the Short List Conference, Judge Richard Haaz addressed the actions of Angst & Angst who had written to Judge Carolyn Carluccio requesting to have him removed from the matter.
24. During the Short List Conference, Judge Richard Haaz upon learning of the pending appeal recognized his lack of jurisdiction to conduct any proceeding in the matter and deferred to court administration regarding the scheduling of a hearing. Court Docket at Sequence #362
25. The hearing was never scheduled before Judge Haaz.
26. The Pending Appeal was never transmitted to the Superior Court of Pennsylvania.
27. Appellant/Defendant contacted by phone and wrote to Court Administration questioning the failure to transmit the appeal and the failure to schedule a hearing.
28. Court Administration did not respond..
REASSIGNMENT TO JUDGE PAGE
29. December 13, 2012, the matter was reassigned to Judge Garrett Page and a hearing date scheduled. Court Docket at Sequence 364
30. Appellant/Defendant filed Objections to the Reassignment of the Matter on December 28, 2012. Court Docket at Seq #365
31. Appellant/Defendant filed Objections to the Reassignment of the Matter on January 2, 2013. Court Docket at Seq #366
32. The hearing was scheduled on January 3, 2013. Court Docket at Sequence #368
33. The hearing was rescheduled on January 18, 2013. Court Docket at Sequence #369
32. The hearing was rescheduled on January 17, 2013. Court Docket at Sequence #370
33. The hearing was rescheduled on January 18, 2013. Court Docket at Sequence #371
34. The hearing was rescheduled on January 24, 2013. Court Docket at Sequence #372
35. The hearing was rescheduled on January 29, 2013. Court Docket at Sequence #373
36. The hearing was rescheduled on January 30, 2013. Court Docket at Sequence #374
37. The hearing was rescheduled on February 1, 2013. Court Docket at Sequence #375
38. During a hearing held on February 11, 2013 Judge Page failed to address the lack of jurisdiction to proceed during the pending appeal. The half day scheduled did not allow enough time for the Defendant to present and the matter was continued.
"Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed and must be decided."
Basso v. Utah Power & Light Co., 495 F 2d 906, 910.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"There is no discretion to ignore that lack of jurisdiction."
Joyce v. US, 474 F2d 215.
"Jurisdiction, once challenged, cannot be assumed and must be decided."
Maine v Thiboutot 100 S. Ct. 250.
When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory.
Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).
38. The continued hearing was rescheduled on February 12, 2013. Court Docket at Sequence #376
39. The continued hearing was rescheduled on February 13, 2013. Court Docket at Sequence #377
40. The continued hearing was rescheduled on February 19, 2013. Court Docket at Sequence #378
41. During a hearing held on February 20, 2013, Judge Page failed to address the challenge to jurisdiction to proceed during the pending appeal.
THE ORDER OF APRIL 3, 2013
42. On April 3, 2013, Judge Page issued an order which neglects to indicate any elements of proper jurisdiction during the pending appeal.
"Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed and must be decided."
Basso v. Utah Power & Light Co., 495 F 2d 906, 910.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"There is no discretion to ignore that lack of jurisdiction."
Joyce v. US, 474 F2d 215.
"Jurisdiction, once challenged, cannot be assumed and must be decided."
Maine v Thiboutot 100 S. Ct. 250.
When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory.
Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).
43. The Order of April 3, 2013, seeks to assign a penalty to the Appellant/Defendant for a contempt which did not occur. Appellant/Defendant followed the Order of September 23, 2013 and the verbal order of the court and left the possessions in the exact location on the dates specified.
44. Appellant/Defendant has a history of following every order issued by the court and promptly documenting with the court any issues or exceptions.
45. Appellee/Plaintiff has NOT followed ANY order of this court at any time, with the exception of scheduling orders. EVERY petition to the court to enforce compliance by the Appellee/Plaintiff was dismissed.
46. The penalty in excess of $300,000 represents an amount which the Appellant/Defendant would have no capability to pay. Appellent/Defendant has been unemployed since March 2007.
47. The penalty is a contempt penalty. A contempt penalty could result in incarceration for non-payment.
48. The penalty multiplied by a daily count fails to address the courts not scheduling a timely hearing.
49. The penalty is based on an Order of September 23, 2013, for a petition filed on September 22, 2013, never served upon the Appellant/Defendant; and then withdrawn on September 28, 2013.
50. On September 23, 2013, the petitions scheduled to be heard which were filed by the Appellant/Defendant were intended to prevent irreparable harm and damage to marital assets and individual property.
51. The parties were in court on September 23, 2013 as multiple petitions had been scheduled, continued and rescheduled before Judge Carluccio. The Appellant/Defendants scheduled petitions were all summarily dismissed and the new matter filed September 22, 2013 was heard... ORDERED... And then withdrawn. Court Docket at Sequence 351, 352, 353
SEPTEMBER 23, 2011
On September 23, 2011, in the court of Judge Carolyn Carluccio, who had deliberately and intentionally issued a defective and void order with the knowledge that everyone would follow the order without regard for proper jurisdiction, I was surrounded by 5 deputies in the courtroom.
I was informed that my home had been illegally sold and all of my possessions had been thrown away. I had persevered through 5 years of constant litigation, threats, harassment and false allegations and terror. I had represented myself through a divorce which had been before 15 judges of the Montgomery County Judiciary. The defective and void divorce decree had left me homeless and destitute. It was clear that Carolyn Carluccio wanted my suicide.
The July 18, 2011 order authorized the destruction of my property if not removed from the residence by the closing date of the sale. I had been prevented from learning the closing date and had filed numerous documents with the court to learn the information
Judge Carluccio then ordered me under penalty of contempt to endorse multiple insurance checks for claims I had not made.
Judge Carluccio then ordered me under penalty of contempt to endorse the checks exchanged during the closing on the home.
Closing had occurred on September 20, 2011. Proceedings originally scheduled for September 20, 2011 had been rescheduled to September 23, 2011 included petitions to address the failure of the Appellee/Plaintiff to provide any information on the sale of the home.
A NESTED LACK OF JURISDICTION
52. The courts jurisdiction was challenged on September 23, 2011 and not addressed by the Court. Jurisdiction was not only procedurally defective, but the Court was basing its orders on a previous order which lacked proper jurisdiction issued on July 18, 2011.
"Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed and must be decided."
Basso v. Utah Power & Light Co., 495 F 2d 906, 910.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"There is no discretion to ignore that lack of jurisdiction."
Joyce v. US, 474 F2d 215.
"Jurisdiction, once challenged, cannot be assumed and must be decided."
Maine v Thiboutot 100 S. Ct. 250.
When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory.
Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).
53. The Order of July 18, 2011 was based on new matters filed on July 14, 2011 and not served upon the Appellant/Defendant. Jurisdiction was not only procedurally defective, but the Court was basing it's order on a previous order which lacked proper jurisdiction issued on May 9, 2011.
54. Jurisdiction was challenged on July 18, 2011 and not addressed by the Court. The procedural failure to follow due process and procedure was presented and ignored by the Court. Transcript at Sequence #323
"Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed and must be decided."
Basso v. Utah Power & Light Co., 495 F 2d 906, 910.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"There is no discretion to ignore that lack of jurisdiction."
Joyce v. US, 474 F2d 215.
"Jurisdiction, once challenged, cannot be assumed and must be decided."
Maine v Thiboutot 100 S. Ct. 250.
When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory.
Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).
55. The Court neglected to address the procedurally defective and void order EVERY time it was presented. Each challenge of proper jurisdiction was ignored. Testimony and evidence was presented at every opportunity, yet the issue was never addressed in any order or opinions.
PROCEDURALLY DEFECTIVE AND VOID ORDER OF May 9, 2011
56. The Opinion filed by Judge Carluccio neglects to indicate address the challenge of proper jurisdiction to issue the Order of May 9, 2011.
57. The Court has been notified that the order was procedurally defective and the court lacked jurisdiction on June 6, 2011. Court Docket at Sequence #305
58. The Court has been notified that the order was procedurally defective and the court lacked jurisdiction on June 9, 2011. Court Docket at Sequence #311
59. The Court has been notified that the order was procedurally defective and the court lacked jurisdiction on July 18, 2011. Court Docket at Sequence #323
60. The Court neglected to take any action to address or correct the defect in the order.
61. The Appellee/Plaintiff, represented by Angst & Angst, neglected to take any action to address of correct the defect in the order.
NO EVIDENCE WHICH SUPPORTS JURISDICTION
62. It is undisputed that the requirements of procedural due process have not been met and that the court was without jurisdiction to issue the order of May 9, 2011.
63. There has been no evidence presented or testimony provided which addresses the challenge to the court's jurisdiction to issue the order of May 9, 2011.
“The burden of proving jurisdiction rests upon the party asserting it.”
Bindell v City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist 1991)
64. The court has failed to demonstrate the court's jurisdiction and ignored the question of jurisdiction to issue the order of May 9, 2011..
“Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted.”
Lantana v. Hopper, 102 F. 2d 188; Chicago v. New York 37 Fsupp. 150
“The burden shifts to the court to prove jurisdiction.”
Rosemond v. Lambert, 469 F 2d 416
“...However late this objection [to jurisdiction] has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, BEFORE any court can move ONE FURTHER STEP IN THE CAUSE; as any movement is necessarily the exercise of jurisdiction.”
Rhode Island v. Massachusetts, 37 U.S. 657, 718, 9 L.Ed. 1233 (1838).
EVIDENCE IN THE COURT RECORD
65. The evidence of the procedural defect of the order of May 9, 2011 is part of the court record and is clearly visible on the court docket.
“If the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”
Norman v. Zieber, 3 Or at 202-03
FAILURE TO FOLLOW RULES OF CIVIL PROCEDURE
66. The Order of May 9, 2011 is docketed at sequence number #2007-12477-304.
Rule 1920.42(a)
(a) If a complaint has been filed requesting a divorce on the ground of irretrievable breakdown and
(1) both parties have filed an affidavit under 3301(c) of the Divorce Code substantially in the form prescribed by Rule 1920.72(b), or
(2) either party has filed a 3301(d) affidavit under 3301(d) of the Divorce Code substantially in the form prescribed by Rule 1920.72(d) the averments of which the other party has admitted or failed to deny,
the prothonotary on praecipe in the form prescribed by Rule 1920.73(b) shall transmit the record to the court, which shall review the record and enter an appropriate decree. No Master shall be appointed.
67. Neither party filed any affidavit under 3301(c) of the Divorce Code substantially in the form prescribed by Rule 1920.72(b).
68. Neither party filed any affidavit under 3301(d) of the Divorce Code substantially in the form prescribed by Rule 1920.72(d).
Rule 1920.42(b)
(b) The affidavit required by 3301(c) of the Divorce Code must have been executed
(1) ninety days or more after both filing and service of the complaint.
(2) within thirty days of the date the affidavit was filed.
69. Rule 1920.42(b) clearly indicates the REQUIREMENT of the affidavit.
70. Neither party filed any affidavit under 3301(c) at any time in the matter.
Rule 1920.42(c)
(c) An affidavit of consent may be withdrawn only with leave of court.
71. Neither party filed any affidavit of consent at any time in the matter.
72. Neither party requested leave of court to withdraw any affidavit of consent at any time in the matter.
Rule 1920.42(d)
(d)(1) Except as provided in (e), no decree shall be entered by the court under 3301(c) or 3301(d)(1)(i) of the Divorce Code unless a notice of intention to request entry of divorce decree, substantially in the form prescribed by Rule 1920.73(a) was mailed or delivered to the attorney of record of the party against whom the decree is to be entered or, if there is no attorney of record, to the party, at least twenty days prior to the date of the filing of the praecipe to transmit the record. The praecipe which shall state the date and manner of service of the notice, a copy of which shall be attached.
(d)(2) If the party against whom the decree is to be entered has no attorney of record, the notice required by subdivision (d)(1) shall be accompanied by a form counter-affidavit substantially in the form prescribed by Rule 1920.72(e).
73. A Notice of Intention to Request Entry of Divorce Decree in the matter was not mailed, delivered, filed or served at least twenty days prior to the date of the filing of the praecipe to transmit the record.
74. A Notice of Intention to Request Entry of Divorce Decree in the matter was not mailed, delivered, filed or served at any time prior to the date of the issuance of the order of May 9, 2011.
75. A Praecipe to Transmit the Record in the matter was not written, mailed, delivered, filed or served.
Rule 1920.42(e)
(e) Notice of intention to request entry of divorce decree shall not be required prior to entry of a divorce decree
(1) where the parties have executed and filed with the prothonotary a waiver of notice substantially in the form set forth in rule 1920.72(c); or
(2) under 3301(d) where the court finds that no appearance has been entered on defendant's behalf and that the defendant cannot be located after diligent search.
76. No Waiver or Affidavit of Consent pursuant to Rule 1920.42(e) was filed by any party at any time during the course of the matter.
THE OPINION FILED IN THE AUGUST 15, 2011 APPEAL TO SUPERIOR COURT
77. The Opinion filed on October 19, 2011 by Judge Carolyn Carluccio after receiving the Concise Statement of Errors Complained of On Appeal neglects to address any of the issues presented in the concise statement.
78. The Opinion filed on October 19, 2011 by Judge Carolyn Carluccio presents a single argument misrepresenting that the appeal is untimely.
79. The Opinion filed on October 19, 2011 by Judge Carolyn Carluccio fails to recognize that the Rules of Civil Procedure have not been followed; the order is procedurally defective and void ab initio.
80. The Court is only authorized by statute to enter a divorce decree after one of the parties requests the entry of a divorce decree. Neither party requested the entry of the divorce decree pursuant to the Rules of Civil Procedure – The Divorce Code.
A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack.
46 Am. Jur. 2d, Judgments § 25, pp. 388-89.
81. The Order of May 9, 2011 was issued without proper authorization by statute and is therefore procedurally defective and void.
Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties.
Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940).
Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process.
Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 20 F.Supp. 892(D.S.C. 1985).
Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process.
U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986).
A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos, 609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993).
Void judgment is one that from its inception is a complete nullity and without legal effect Stidham V. Whelchel, 698 N.E.2d 1152 (Ind. 1998).
Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process of law.
Eckel v. MacNeal, 628 N.E. 2d 741 (Ill. App. Dist. 1993).
Relief form void judgment is available when trial court lacked either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E. 2d 458 (Ind.App. 1 Dist. 1993).
Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire, 869 P.2d 58 ( Kan. 1997).
Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time,.
Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994).
A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process.
In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999).
Void judgment is one rendered in absence of jurisdiction over subject matter or parties.
310 N.W. 2d 502, (Minn. 1981).
A void judgment is one rendered in absence of jurisdiction over subject matter or parties.
Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973).
A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment.
Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950).
Void judgment is one entered by court without jurisdiction to enter such judgment.
State v. Blankenship 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996).
A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment.
Underwood v. Brown, 244 S.W. 2d 168 (Tenn. 1951).
A Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of person, subject matter generally, particular question to be decided or relief assumed to be given.
State ex rel. Dawson v. Bomar, 354 S.W. 2d 763, certiorari denied, (Tenn. 1962).
A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment.
State v. Richie, 20 S.W.3d 624 (Tenn. 2000).
A void judgment is one which shows on face of record the want of jurisdiction in court assuming to render judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to decided or relief assumed to be given.
Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950).
Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed.
City of Lufkin v. McVicker, 510 S.W. 2d 141 (Tex. Civ. App. – Beaumont 1973).
A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties.
Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987)
A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved.
State ex rel. Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999).
Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally.
Irving v. Rodriquez, 169 N.E.2d 145, (Ill.app. 2 Dist. 1960).
Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record.
Crockett Oil Co. v. Effie, 374 S.W.2d 154 ( Mo.App. 1964).
In order for a judgment to be void, there must be some jurisdictional defect in the court's authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit.
Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379.
Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered.
B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995).
Void order may be attacked, either directly or collaterally, at any time, In re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809, (Ill. 1994).
A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E.2d 846, (Ill.App. 1 Dist. 2000).
Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties.
Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980).
“If a court grants relief, which under the circumstances it hasn't the authority to grant, its judgment is to that extent void.”
Freeman on Judgments, 120-c.
“The judgments were based on orders which were void because the court exceeded its jurisdiction in entering them. Where a court, after acquiring jurisdiction of a subject matter, as here, transcends the limits of the jurisdiction conferred, its judgment is void.”
Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d 375 (1943)
Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court.
People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994).
While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus.
Sanchez v. Hester, 911 S.W.2d 173, (Tex.App. – Corpus Christi 1995).
Arizona courts give great weight to federal courts’ interpretations of Federal Rule of Civil Procedure governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure.
Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998).
A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.]
Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).
"A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property."
Norwood Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
"Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio."
In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.
"Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term."
Dillon v. Dillon, 187 P 27.
82. The Order of May 9, 2011 is void, it is no judgment at all and can have no effect.
A void judgment is one which from the beginning was complete nullity and without any legal effect.
Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980).
Void judgment is one that, from its inception, is complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill 1992).
A void judgment is one which, from its inception, was, was a complete nullity and without legal effect.
Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985).
A void judgment is one which, from its inception, was a complete nullity and without legal effect,
Lubben v. Selevtive Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972).
A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it and defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958).
A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree.
Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985).
A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction.
Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954).
Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect.
Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).
“A void judgment is no judgment at all and is without legal effect.”
Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974)
A void judgment, insofar as it purports to be pronouncement of court, is an absolute nullity, Thompson v. Thompson, 238 S.W.2d 218 (Tex.Civ.App. – Waco 1951).
Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks, 630 N.E. 2d 509 (Ill.App. 5 Dist. 1994).
Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity.
People v. Rolland 581 N.E.2d 907, (Ill.App. 4 Dist. 1991).
83. There is no time limit when a judgment is void. The Judgment may be challenged at any time.
A “void” judgment as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by ).
Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally,
People v. Wade, 506 N.W.2d 954 (Ill. 1987).
Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally
People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990).
No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97.
"A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time."
261 Kan. at 862.
A motion to set aside a judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b).
Garcia v. Garcia, 712 P.2d 288 (Utah 1986).
Party can attack subject matter jurisdiction at anytime in the proceeding, even raising jurisdiction for the first time on appeal.
State v. Begay, 734 P.2d 278.
There is no time limit when a judgment is void:
Precision Eng. V. LPG, C.A. 1st (1992) 953 F.2d 21 at page 22, Meadows v. Dominican Republic CA 9th (1987) 817 F.2d at page 521, In re: Center Wholesale, Inc. C.A. 10th (1985) 759 F.2d 1440 at page 1448, Misco Leasing v. Vaughn CA 10th (1971) 450 F.2d 257, Taft v. Donellen C.A. 7th (1969) 407 F.2d 807, and Bookout v. Beck CA 9th (1965) 354 F.2d 823. See also, Hawkeye Security Ins. V. Porter, D.C. Ind. 1982, 95 F.R.D. 417, at page 419, Saggers v. Yellow Freight D.C. Ga. (1975) 68 F.R.D. 686 at page 690, J.S. v. Melichar D.C. Wis. (1972) 56 F.R.D. 49, Ruddies v. Auburn Spark Plug. 261 F. Supp. 648, Garcia v. Garcia, Utah 1986 712 P.2d 288 at page 290, and Calasa v. Greenwell, (1981) 633 P.2d 555 at page 585, 2 Hawaii 395. “Judgment was vacated as void after 30 years in entry,” Crosby. V. Bradstreet, CA 2nd (1963) 312 F.2d 483 cert. denied 83 S.Ct. 1300, 373 US 911, 10 L. Ed. 2.d 412. “Delay of 22 years did not bar relief,” U.S. v. Williams, D.C. Ark. (1952) 109 F.Supp. 456.
Although Rule 60(b)(4) is ostensibly subject to the "reasonable" time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under the Rule 60(b)(4) because a void judgment can never acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the court vacated a judgment as void 30 years after entry.
Marquette Corp. v. Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that clause Rule 60(b)(4) carries no real time limit.
84. Each attempt to have the Court address current and prior jurisdiction was ignored.
"Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed and must be decided."
Basso v. Utah Power & Light Co., 495 F 2d 906, 910.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"There is no discretion to ignore that lack of jurisdiction."
Joyce v. US, 474 F2d 215.
"Jurisdiction, once challenged, cannot be assumed and must be decided."
Maine v Thiboutot 100 S. Ct. 250.
When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory.
Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).
85. Once brought to the attention of the court., the court must vacate the judgment entered in excess of it's jurisdiction.
“A court must vacate any judgment entered in excess of its jurisdiction.”
Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972)
Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside.
Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278.
86. A void judgment is devoid of any potency or authority.
A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment.
City of Los Angeles v. Morgan, 234 P.2d 319 (Cal.App. 2 Dist. 1951).
Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects.
Ward v. Terriere, 386 P.2d 352 (Colo. 1963).
87. A judgment made without proper jurisdiction can never be a valid judgment.
"A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court".
OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907).
TREASON
88. “... When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act of treason”.
Cohens v Virginia 19 U.S. 264, 404, 5 L.Ed. 257, 6 Wheat. 264 (1821)
JUDICIAL IMMUNITY
89. Whereas, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials ansd judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C Sec 1983.
90. “Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.”
Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988)
91. “A prejudiced, biased judge who tries a case deprives a party adversely affected of due process.” See Nelson v. Cox, 66 N.M. 397.
92. The right to a tribunal free from bias and prejudice is based on the Due Process Clause. Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his/her property, then the judge has engaged in the crime of interference with interstate commerce; the judge has acted in his/her personal capacity and not in the judge’s judicial capacity. See U.S. v. Scinto, 521 F.2d 842 at page 845, 7th circuit, 1996.
93. In Edwards v. Wiley, 374 P.2d 284, the court ruled and determined that, “Judicial officers are not liable for erroneous exercise of judicial powers vested in them, but they are not immune from liability when they act wholly in excess of jurisdiction.” See also, Vickery v. Dunnivan, 279 P.2d 853, (1955).
94. In Beall v. Reidy, 457 P.2d 376, the court ruled and determined, “Except by consent of all parties a judge is disqualified to sit in trial of a case if he comes within any of the grounds of disqualification named in the Constitution. In Taylor v. O’Grady, 888 F.2d 1189, 7th Cir. (1989), the circuit ruled, “Further, the judge has a legal duty to disqualify, even if there is no motion asking for his disqualification.” Also, when a lower court has no jurisdiction to enter judgment, the question of jurisdiction may be raised for the first time on appeal. See DeBaca v. Wilcox, 68 P. 922.
95. In Sparks v. Duval County Ranch, 604 F.2d 976 (1979), the court ruled and determined that, “No immunity exists for co-conspirators of judge. There is no derivative immunity for extra-judicial actions of fraud, deceit and collusion.”
96. "A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937.
97. "Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris." Merritt v. Hunter, C.A. Kansas 170 F2d 739.
CONSTITUTIONAL CHALLENGE
98. Appellant respectfully informs this court of a related Constitutional Challenge currently in the Third Circuit Court of Appeals (#13-4591) in the Federal Court challenging the constitutionality of Rule 1.6 of the Rules of Professional Conduct as a situation can occur in the court which results in the denial of rights and privileges guaranteed by the United States Constitution and prevents any lawful ability to address or resolve the subsequent injustice.
“The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.”
Marbury v. Madison, 5 U.S. 137, (1803)
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”
Miranda v. Arizona, 384 U.S. 436, (1966)
99. Pursuant to Rules of Appellate Procedure 210 Rules 521, Appellant has notified Attorney General Kathleen Kane of the unaddressable denial of rights in this matter which is attributable to Rule 1.6 Confidentiality of Information of the Rules of Professional Conduct.
100. The Constitutional Challenge of Rule 1.6 is currently before the Third Circuit Court of Appeals. A Motion for Rehearing En Banc with a request for Certiori to the US Supreme Court if the Third Cicruit Court is prohibited by law from addressing the constitutionality of Rule 1.6.
FEDERALLY
101. Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'"
Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)).
102. A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process.
United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990)
103. Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983).
OBSTRUCTION OF JUSTICE
104. The actions of Judge Carolyn Carluccio to prevent the Appeal from being transmitted represents a conspiracy to obstruct justice in this matter.
105. Upon receiving the Concise Statement of Errors Complained of On Appeal for the Order of April 3, 2013, Judge Garrett Page rescinded the Order to Proceed In Forma Pauperis without holding any proceeding or offering any explanation.
106. Upon recieving the Concise Statement of Errors Complained of On Appeal for the Order of April 3, 2013, Judge Garrett Page contacted the Court Reporters who had been served with a REQUEST FOR TRANSCRIPTS and instructed them not to provide the transcripts of hearings as he was rescinding his In Forma Pauperis Order.
107. A Petition for the Production of Evidence regarding the revocation of the In Forma Pauperis Status was filed on May 28, 2013. This petition was ignored. Court Docket at Sequence #400
108. A Petition to Schedule a Hearing on the Ex Parte Order of May 21, 2013 was filed on May 28, 2013. This petition was ignored. Court Docket at Sequence #401
109. A Petition Requesting an Explanation and Reason for the Prothonotary's Failure To Act on the Appeal Filed August 15, 2011 was filed on May 28, 2013. This Petition was ignored. Court Docket at Sequence# 402
110. When attempting to file a Notice Of Appeal regarding the Order of May 21, 2013, the Prothonotary refused to accept the appeal. Court Docket at Sequence #406
111. The Prothonotary indicated I would need In Forma Pauperis Status to file an appeal of the order which rescinded In Forma Pauperis status. This represents undo hardship and denial of access to the courts.
112. When the Court Record was transmitted to the Superior Court, the exhibits for the hearing in this specific matter were not included.
113. Appellant filed a Motion to Compel Production of the Complete Record with the Superior Court. The Motion was denied.
114. All Petitions filed with the Montgomery County Court were being ignored.
115. The Failure of the Court Report to provide the Exhibits in this case to the Superior Court prevents the proper review of the case by the Superior Court.
OPINION DATED JUNE 28, 2013
116. The Opinion filed by Judge Page relevant to this appeal is based on the refusal to address the lack of jurisdiction caused by the Appeal of the defective and void Order of May 9, 2011.
117. Judge Page's Opinion deliberately neglects and failure to include any reference to the evidence and testimony regarding the defective and void orders in this matter. A review of this matter for the number of times the courrt has been asked to address these jurisdictional failures demonstrates a conspiracy to deny justice, to obstruct and prevent constitutionally protected rights and to involve county agencies and personnel in the actions.
118. The defective and void Order of May 9, 2011 causes a continuing loss of rights as the void and defective document can be presented to undermine any judicial proceedings and adversely affect the integrity of a judge who acts to conceal the injustice.
119. The District Attorney has failed to act to address this corruption within the Montgomery County Judiciary, and the collateral crimes which are enabled by the judges misdeeds.
120. The Attorney General of Pennsylvania has failed to act to address this corruption within the Montgomery County Judiciary, and the collateral crimes which are enabled by the judges misdeeds.
121. Local, state and federal law enforcement refused to act to address the injustice and corruption caused and concealed by the Montgomery County Judiciary.
122. It is the overall failure of the judiciary, law enforcement and legal professionals to address the injustice caused in cases like this that lead to the realization that all were observing Rule 1.6 CONFIDENTIALITY OF INFORMATION of the Rules of Professional Conduct and the result was the denial of rights and privileges protected by the United States Constitution.
Appellant respectfully submits this document in this matter and requests the Superior Court take the following actions on review of the case.
A. STRIKE the defective and void order of May 9, 2011.
B. STRIKE all subsequent orders based on or related to the defective and void Order of May 9, 2011.
C. STRIKE the Order of April 3, 2013 [the subject of this appeal] as this Order places the Appellants freedom in jeopardy.
D. ORDER the production of the transcripts in this matter by the Court Reporters.
RESPECTFULLY SUBMITTED,
Terance Healy
Warrington, PA 18976
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