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Trinsey v. Pagliaro, 229 F. Supp. 647 (E.D. Pa. 1964)United States District Court E.D. Pennsylvania.

May 28, 1964 229 F.Supp. 647This case arises out of a dispute over the extent of the plaintiffs ownership interest in a tract of land of approximately 47.6 acres located in Gulph Mills, Pennsylvania, known as Rebel Hill. By an agreement, dated April 29, 1960, title to the land was taken by the plaintiff and the defendant Pagliaro. On May 9, 1960, pursuant to a second agreement between the parties title was transferred to a trustee-straw party, Howard Richard, Esq., for the benefit of Trinsey and Pagliaro.Thereafter, on May 13, 1960, Pagliaro and his attorney, Albert Foreman, Esq., procured a blank deed from the straw party and his wife. It is this blank deed that the plaintiff by his civil action filed with this Court seeks to have nullified. Following the delivery of the blank deed, the straw party, Richard, executed a deed on November 29, 1962, conveying Rebel Hill to Trinsey and Pagliaro as tenants in common. This deed was recorded in the Office of the Recorder of Deeds for Montgomery County. A civil action was commenced by Pagliaro in Montgomery County in December 1962 against Trinsey and Richard as defendants in the Court of Common Pleas on the ground that Richard at the instance of Trinsey violated his duties as Trustee when Richard executed the November 29, 1962 deed in favor of Trinsey and Pagliaro. This action resulted in a mistrial and Trinsey filed a petition to have the case referred to arbitration before the American Arbitration Association.1 The Montgomery County Court granted this petition and Pagliaro appealed the order to the Pennsylvania Supreme Court which is awaiting decision as this time. The arbitration has not reached the hearing stage. The defendants Pagliaro and Foreman have filed a motion to dismiss the action in this Court because of the possibility of further action in the Montgomery County Court and the arbitration appeal before the Supreme Court. Also, the defendants contend in their motion that this action is moot because the deed is in the control of the Montgomery County Court, having been offered in evidence in the original action, and not in the possession of Pagliaro. Finally, the defendants argue that if the State Supreme Court sustains the order for arbitration, this Court will lack jurisdiction to decide the matter. This Court has jurisdiction because of diversity and the amount involved. The Montgomery County in personam action attacking the acts of the Trustee and which resulted in a mistrial, as aforesaid, does not preclude this Court from taking jurisdiction of this in rem action. This Court, if the facts warrant such a determination, could nullify the blank deed of May 13, 1960, as prayed for, and declare the recorded deed creating ownership as tenants in common between the parties valid or render such other relief as might be proper insofar as the land itself is concerned. On the record before us the arbitration proceedings on appeal concern plaintiff Trustees claims for back pay and collateral *649 matters under an agreement between the parties. There is nothing before us which would warrant a determination that the arbitration proceedings will in any way determine title to the land involved, notwithstanding the statement at argument that a counterclaim had been filed in the arbitration proceedings by defendant which raised the questions previously before the Montgomery County Court, and furthermore, no mention was made of the May 13, 1960 blank deed in this counterclaim insofar as we are able to determine from the oral argument or the record. 12 The action before this Court being partly in rem because it seeks to nullify an outstanding deed and remove a cloud on the title of the premises is not in conflict with the in personam action before the State Court or the Arbitration Board.2 Insofar as this action is in personam in that it seeks to restrain the defendants from executing the blank deed in favor of anyone other than the plaintiff, the Federal Court may proceed with the litigation because there is no bar to parallel Federal and State actions where each

Court has jurisdiction over the persons. Penn General Casualty Co. v. Pennsylvania,294 U.S. 189, 195, 55 S.Ct. 386, 79 L.Ed. 850 (1935). 3 The defendants motion to dismiss for failure to state a claim unsupported by affidavits or depositions is incomplete because it requests this Court to consider facts outside the record which have not been presented in the form required by Rules 12(b)(6) and 56(c). Statements of counsel in their briefs or argument while enlightening to the Court are not sufficient for purposes of granting a motion to dismiss or summary judgment. ORDER And now, this 28th day of May, 1964, the defendants motion to dismiss is denied without prejudice.

Footnotes
1 Paragraph 17 of the April 29, 1960 agreement between Trinsey and Pagliaro provides for the settlement of any disputes by arbitration. 2 Mach-Tronics, Inc. v. Zirpoli, 316 F.2d 820 (9 Cir. 1963).

educationcenter2000.com
With Regards to Trinsey v. Pagliaro
It is a VIOLATION of the 11th Amendment for a FOREIGN CITIZEN to INVOKE the JUDICIAL POWER of the State Article XI. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

US citizens (FEDERAL CITIZENS) are FOREIGN to the several States and SUBJECTS of the FEDERAL UNITED STATES/STATE of NEW COLUMBIA/DISTRICT OF COLUMBIA. Attorneys are considered FOREIGN AGENTS under the FOREIGN AGENTS REGISTRATION ACT (FARA) and are SUBJECTS of the BAR ASSOCIATION. Government Is Foreclosed from Parity with Real People Supreme Court of the United States 1795 "Inasmuch as every government is an artificial person, an abstraction, and a creature of the mind only, a government can interface only with other artificial persons. The imaginary, having neither actuality nor substance, is foreclosed from creating and attaining parity with the tangible. The legal manifestation of this is that no government, as well as any law, agency, aspect, court, etc. can concern itself with anything other than corporate, artificial persons and the contracts between them." S.C.R. 1795, Penhallow v. Doane's Administraters (3 U.S. 54; 1 L.Ed. 57; 3 Dall. 54), Supreme Court of the United States 1795 And, "An attorney for the plaintiff cannot admit evidence into the court. He is either an attorney or a witness". (Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647) Subject: Trinsey v. Pagliaro, 229 F.Supp. 647: when you read it you will find that it is THE case cited for FRCP 12(b) (6). Now, while what it says at 12(b) (6) is good, notice how I have highlighted some items from the actual decision, it goes MUCH further than 12(b) (6) does and we should also. Keep in mind the two Maxims in Law that are opposite sides of the same coin: Truth is Expressed in the Form of an Affidavit, & An Unrebutted Affidavit stands as Truth in the Matter. Now, while keeping these in mind, think about when someone like an attorney for the IRS comes forward and "testifies" about how you did such-and-such. Are they a First-Hand-Witness, or simply a "Statement of Counsel in Brief or Argument?" Shut them down! Hit them with Trinsey and get the "Judge" to take official Judicial Notice of it. If the "Judge" does not sustain your object, you need to immediately file an oral "Affidavit of Prejudice" against the "Judge" as he has shown his prejudice and then file the same Affidavit in writing into the record with witnesses to the same. Once your Affidavits are filed, get a record of what has been filed and show that you are the only one who has actually introduced FACTS into the case and move for Summary Judgment upon the Facts... while reminding the "Judge" that the ONLY thing he is to consider is the FACTS of the case ON THE RECORD, that the opposing "counsel" has only been "enlightening" to the Court, but not sufficient to rise to the level of FACT.

This applies both with Federal Rules of Evidence and State Rules of Evidence.... there must be a competent first hand witness (a body). There has to be a real person making the complaint and bringing evidence before the court. Corporations are paper and can't testify. "Manifestly, [such statements] cannot be properly considered by us in the disposition of [a] case." United States v. Lovasco (06/09/77) 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752, "Under no possible view, however, of the findings we are considering can they be held to constitute a compliance with the statute, since they merely embody conflicting statements of counsel concerning the facts as they suppose them to be and their appreciation of the law which they deem applicable, there being, therefore, no attempt whatever to state the ultimate facts by a consideration of which we would be able to conclude whether or not the judgment was warranted." Gonzales v. Buist. (04/01/12) 224 U.S. 126, 56 L. Ed. 693, 32 S. Ct. 463. "No instruction was asked, but, as we have said, the judge told the jury that they were to regard only the evidence admitted by him, not statements of counsel", Holt v. United States, (10/31/10) 218 U.S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, "The prosecutor is not a witness; and he should not be permitted to add to the record either by subtle or gross improprieties. Those who have experienced the full thrust of the power of government when leveled against them know that the only protection the citizen has is in the requirement for a fair trial." Donnelly v. Dechristoforo, 1974.SCT.41709 56; 416 U.S. 637 (1974) Mr. Justice Douglas, dissenting. "Care has been taken, however, in summoning witnesses to testify, to call no man whose character or whose word could be successfully impeached by any methods known to the law. And it is remarkable, we submit, that in a case of this magnitude, with every means and resource at their command, the complainants, after years of effort and search in near and in the most remote paths, and in every collateral byway, now rest the charges of conspiracy and of gullibility against these witnesses, only upon the bare statements of counsel. The lives of all the witnesses are clean, their characters for truth and veracity un-assailed, and the evidence of any attempt to influence the memory or the impressions of any man called, cannot be successfully pointed out in this record." Telephone Cases. Dolbear v. American Bell Telephone Company, Molecular Telephone Company v. American Bell Telephone Company. American Bell Telephone Company v.. Molecular Telephone Company, Clay Commercial Telephone Company v. American Bell Telephone Company, People's Telephone Company v. American Bell Telephone Company, Overland Telephone Company v. American Bell Telephone Company,. (PART TWO OF THREE) (03/19/88) 126 U.S. 1, 31 L. Ed. 863, 8 S. Ct. 778. "Statements of counsel in brief or in argument are not sufficient for motion to dismiss or for summary judgment," Trinsey v. Pagliaro, D. C. Pa. 1964, 229 F. Supp. 647.

"Factual statements or documents appearing only in briefs shall not be deemed to be a part of the record in the case, unless specifically permitted by the Court" Oklahoma Court Rules and Procedure, Federal local rule 7.1(h). Trinsey v Pagliaro, D.C.Pa. 1964, 229 F.Supp. 647. "Statements of counsel in brief or in argument are not facts before the court and are therefore insufficient for a motion to dismiss or for summary judgment." Pro Per and pro se litigants should therefore always remember that the majority of the time, the motion to dismiss a case is only argued by the opposing attorney, who is not allowed to testify on the facts of the case, the motion to dismiss is never argued by the real party in interest. "Where there are no depositions, admissions, or affidavits the court has no facts to rely on for a summary determination." Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. Frunzar v. Allied Property and Casualty Ins. Co., (Iowa 1996) 548 N.W.2d 880 Professional statements of litigants attorney are treated as affidavits, and attorney making statements may be cross-examined regarding substance of statement. [And, how many of those Ass-Holes have "first hand knowledge"? NONE!!!] Porter v. Porter, (N.D. 1979 ) 274 N.W.2d 235 The practice of an attorney filing an affidavit on behalf of his client asserting the status of that client is not approved, inasmuch as not only does the affidavit become hearsay, but it places the attorney in a position of witness thus compromising his role as advocate. Deyo v. Detroit Creamery Co (Mich 1932) 241 N.W.2d 244 Statutes forbidding administering of oath by attorney's in cases in which they may be engaged applies to affidavits as well

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Legal

Dismissals in Government cases -- bad judges or bad litigant?


BE SURE TO READ THE UPDATE ALSO! If this article seems like legalese, keep reading. I believe there is a valuable lesson.

Several weeks ago I responded to an article you either wrote or published referencing "bad judges". In turn you asked me to expand my determination on the subject for your consideration and I agreed to do so when I had the time. I am of the opinion that too much of the time we blame our ineptitude in the legal arena on the judge(s) who either denied our pleading(s) or dismissed our matter before the court. My opinion is based upon my studies of several classes of court decisions and my experiences in the courtroom.And when I am involved in hearings in the courtroom I pay close attention to what the judge is saying and doing. Also I used to read every Supreme Court Reporter, Federal Reporter, Federal Supplement, and Pacific reporter that gets printed each week or so. I see what the litigants have tried to do and I see the mistakes they made as pointed out by the judges. Litigants keep making the same mistakes case after case after case. The majority of litigants follow this outline: (a) They file a complaint against the government replete with truthful allegations, (b) The D.O.J. attorney answers the complaint with a motion to dismiss under either FRCP Rule 12(b)(6) for failure to state a claim upon which relief can be granted, or Rule 12(b)(1) for lack of subject matter jurisdiction. Under 12(b)(6) failure to state a claim means that the complainant has not provided evidence upon which the judge can grant relief. Under 12(b)(1) lack of jurisdiction means that the complainant has not rebutted (with evidence) the presumption of sovereign immunity the government carries. (c) The D.O.J. attorney files a motion for a protective order against discovery and the court grants it. (d) The judge dismisses the matter or finds summary judgment in favor of the government without allowing discovery of any kind. Now we are "mad as hell" and we want to blame the judge because he violated our rights. We have just failed to understand the process and act accordingly. We have been beaten by a "presumption" and didnt even recognize it. There is a presumption that "government always acts correctly" (within the law) and we must REBUT their presumption.

There are many instances where the proof of an essential fact can be proven only by inference--a process of reasoning from the known to the unknown. From established facts other facts may be inferred. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Presumptions arise where evidence to support an allegation is wanting, and they are indulged to supply the want of proof of a more direct character and cannot be resorted to where such proof is available. A presumption will necessarily relate only to matters upon which the record fails to speak. See Old Wayne Mut. Life Assn. v. McDonough, 204 US 8, 51 L.Ed. 345, 27 Sup. Ct. Rep 236; Galpin v. Page, 18 Wall US 350, 21 L.Ed. 959. Webster's Collegiate Dictionary defines the term as "the taking of something for granted" or :evidence that points to the probability of something," and points out that in law it is defined as "the inference that a fact exists, based on the proved existence of other facts." If the "record" was always a faithful and accurate story of each step taken, from the incipient to the final stages of confrontation with the opposing party, to bring the subject matter and the parties before the court, there would be no occasion to using presumptions. If jurisdiction could be obtained by a perusal of the record itself, the courts would not "presume" anything to the contrary. Presumptions arise where the record is silent upon some fact or cannot be restored to in opposition to its plain terms. In civil cases there are essential elements of a cause of action that a plaintiff must allege and prove if he is to prevail, and as to these elements he has the burden of proof. The allocation of the burden of proof is regulated by local rules and substantive law. Burden of proof is to be distinguished from the burden of going forward with the evidence. The general rule in civil cases is that the party charged with the task of maintaining the burden of proof must established his case by a preponderance of the evidence. Most presumptions are based upon a logical inference--a reasonable probability as to the truth of the fact presumed. It has been held that, insofar as criminal liability is concerned, a statutory presumption may run afoul of constitutional provisions (due process) unless there is a "rational

connection" between the established fact and the presumed fact flowing therefrom. See Tot v. U.S., U.S. v. Delia, 1943, 319 US 463, 63 S.Ct. 1241. Again, I recognize that there is a long-standing presumption that "Government always acts within the law and is always right." This, in reality, means that government can do just about anything it wants to an individual and in the event the individual decides he has had enough mis-treatment/abuse/rights violated (marv) and decided to go to court to get an order to stop the MARV, he has a problem. The court will dismiss the matter because of the above stated presumption (Government always acts within the law and is always right). Let us suppose that employees of a department of the federal government have been calling you a "pink elephant" for several months and you are very stressed by it. This name calling has you angry all of the time and that anger/stress has caused you to fight with your spouse, your children and even your neighbors. You have had it! You decide that you are going to file a lawsuit in federal court for an injunction against their further calling you a pink elephant. Your complaint alleges several wrongdoings, cites lots of statutory and caselaw support for your position, and prays for damages and injunctive relief. You angrily march to the clerk of the court to get it filed and a summons signed and stamped for service upon the head of the federal agency. Sometime within the next sixty days you will receive a "motion to dismiss" under Federal Rules of Civil Procedure Rule 12(b), probably sub-sub section (6), "for failure to state a claim upon which relief could be granted". You will then have 15 days more or less to do your objecting to their motion after which the court will agree with the governments attorney and dismiss your complaint. WOW! You have now experienced the finest example of a "presumption" in action. You thought that you had made a claim when you alleged violations of law in the complaint and cited the statutory and caselaw support for your position. The "state a claim upon which relief could be granted" phraseology means PROVIDE EVIDENCE UPON WHICH THE COURT CAN LOOK AT AND BASE RELIEF

UPON. When we FAIL to include EVIDENCE in the document (complaint) that we make the allegations then we have "failed to state a claim". Now I want you to step back a moment and do a recall of why the complaint was filed in the first place. Employees of a governmental agency called you a "pink elephant" for several months and you are very stressed by it, you are angry all of the time, you fight with your spouse, your children and even your neighbors. You went to court to get relief, something for damages, and the judge kicked you out saying that you did not provide EVIDENCE upon which he could grant relief. Under your breath you are angrily mumbling something about a "bad judge" (in language that I wont repeat here) because you know that you made a claim and cited lots of statutes and caselaw. When you allege wrongdoings (violations of your rights), cite lots of statutory and caselaw support for your position all you are doing is arguing. Citing lots of statutory and caselaw support is not evidence. Remember, in a civil suit against a non-government person there usually is granted a period for discovery to bring evidence forward. When you sue government you need to bring forward all of your evidence up front in the complaint because there will be no discovery and when you do not bring the evidence along in the complaint your allegations will be dismissed for "failure to state a claim" upon which the court can grant relief. Well what could we consider as evidence that you are not a pink elephant? Here is a list: 1. Go to your Medical Doctor and have him give you a complete physical examination. That is an "expert opinion" that you are not a pink elephant. 2. Go to a Veterinarian and have him give you a precursory examination sufficient for him to issue his "expert opinionthat you are not a pink elephant. 3. Have three or four close friends who have participated in various activities with you and have them write Affidavits from their first hand knowledge that you are not a pink elephant and that they have seen you do certain things that pink elephants cannot do. 4. Write your own Affidavit claiming from first hand knowledge that you know you are not a pink elephant.

5. Get an encyclopedia and copy the pages therefrom that give information about pink elephants and use the pages as an exhibit along with the pages of evidence you already have. If these pieces of EVIDENCE would have been included with the complaint then the government would have had to rebut and destroy the evidence. We can cite 10,000 cases and make 10,000 claims of wrongdoing, but all they add up to is argument and nothing more. Argument does not rebut the governments presumption. Tangible evidence is absolutely necessary to do the job. When we fail to provide the EVIDENCE in our pleadings we fail to rebut the presumption of correctness held by the government and recognized by the courts. We need to give the court something upon which they can grant relief. I will again make the claim that we too often give the judiciary hell and unjustly criticize them when the problem lies at our own feet. We are the problem. I suppose you want to know how I learned this. I learned this and many other things from judges. We need to listen when the judge is either speaking to us or telling us something via his written order. On the other hand I do know that there is a strong bias against people who represent themselves in court and argue for our rights. A judge told me that when a moving party has oral argument and does not know what is in the pleading he will automatically deny the motion or petition. He wants the litigators to be well prepared and be proficient in arguing their pleadings. They do not like someone to consume their time with stupidity or incompetence. Sincerely, Jim Jensen

UPDATE From a caught.net reader: Great website!!!... I wish everyone in the US would get on the judicial and government accountability wagon. A friend forwarded me Jim Jensen's article titled "Dismissals in Government cases -- bad judges or bad litigant?" from your website. While the article is very good and thought provoking, the US Supreme Court respectfully disagrees. Haines v. Kerner, Et Al, 404 U.S. 519 (1972) states that a Pro Se litigant's complaint cannot be dismissed for failure to state a claim upon which relief can be

granted. Haines v. Kerner, et al - Court's Opinion: ...allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2 1944). ....we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed and the case is remanded for further proceedings consistent herewith. I've attached a copy of Haines v. Kerner for your future reference. Thanks for a wonderful website. I will be referring others to it as well as using it for my own reference. Caught note: Perhaps a reader can shepardize this case and see how much of it has stood the test of time. Haines v Kerner is a US Supreme Court case, which has not been overturned and will withstand any Shepardizing. Most Pro Se litigants know nothing of Haines v Kerner and would not know how to assert their legal arguments in courts. Also, the judges do a fine job of railroading pro se litigants and helping their BAR "fraternity" brothers and sisters, and often openly chastise pro se litigants in court for not hiring an attorney. One way to get your legal arguments into the court record is by using Notices to the court within your legal documents filed with the court clerk's office. I like to incorporate Judicial Notices into my court documents that quotes Haines v Kerner, Platsky v CIA. and others. The following is styled after Richard Cornforth's work.

JUDICIAL NOTICE

All officers of the court for <insert> County,< state> are hereby placed on notice under authority of the supremacy and equal protection clauses of the United States Constitution and the common law authorities of Haines v Kerner, 404 U.S. 519, Platsky v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) relying on Willy v. Coastal Corp., 503 U.S. 131,

135 (1992), United States v. International Business Machines Corp., 517 U.S. 843, 856 (1996), quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). In re Haines: pro se litigants (Defendant is a pro se litigant) are held to less stringent pleading standards than BAR registered attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the opportunity to submit evidence in support of their claims. In re Platsky: court errs if court dismisses the pro se litigant (Defendant is a pro se litigant) without instruction of how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants constitutional rights are violated when courts depart from precedent where parties are similarly situated. All litigants have a constitutional right to have their claims adjudicated according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). Statements of counsel, in their briefs or their arguments are not sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.