By Joe Portofino
As many of you are aware, Pennsylvania Courts of Common Pleas, as do courts around the country, routinely deny defendants their right to a trial by jury in civil in rem foreclosure actions. I have been waiting and now finally have a test case on the issue because a client recently received a Motion to Strike Jury Trial Demand.
The following memorandum of law should leave no doubt that here in Pennsylvania, homeowners have an absolute right to a trial by jury in any unlawful foreclosure action against them.
I would like to express my sincere thanks to Bill Reil of Chester County, Pennsylvania for his invaluable constitutional research that made my job a lot easier. The first four pages of the memorandum are a direct result of his work. Thanks again, Bill.
I also want to thank my fellow paralegal, Keith Dennis, for his contributions to this memorandum, especially a great Conclusion.
If you are from another state and have a similar issue to deal with, feel free to use our work. And let us know what you think.
Regards, Joe Portofino
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S OBJECTION AND OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE JURY TRIAL DEMAND AND LISTING OF THE MOTION FOR ARGUMENT
While Defendant believes that the burden of proof lies squarely with Plaintiff to prove Defendant’s right to a trial by jury in a civil in rem foreclosure action does not exist, Defendant will nonetheless demonstrate in the instant memorandum of law the fallacy of Plaintiff’s claim, and that Defendant has an absolute guaranteed right to a trial by jury from the time of William Penn’s original charter, thereby eliminating the need for a hearing on the matter.
Rule 1007.1(a) of the Pennsylvania Rules of Civil Procedure provides that:
“In any action in which the right to a jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty days after service of the last permissible pleading. The demand shall be made by endorsement on a pleading or by separate pleading.”
In this case there is no question that Defendant has endorsed his pleading with a demand for a trial by jury. The question, however, is whether or not Defendant has a right to a trial by jury under Article I, Section 6 of the Pennsylvania Constitution in a civil in rem foreclosure action. The answer as demonstrated below is unquestionably a resounding yes.
The right to a Trial by Jury of Defendant’s peers who may examine and decide both the facts and the laws in an open court is secured by the lawful Constitution of the Commonwealth of Pennsylvania in Article I sections 1, 2, 6, 7, 8, 9, 11, and 25. Article I section 6 of the present Constitution for the Commonwealth of Pennsylvania states that:
"Trial by jury shall be as heretofore and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. Furthermore, in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused."
Section 9 states in pertinent part:
"In all criminal prosecutions the accused shall have the right to ....a speedy public trial by an impartial jury of the vicinage; ...., nor can he be
deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. ...";
Section 11 states that:
"All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administer without sale, denial or delay."
Further, this right was also stated in the Frame of Government for Pennsylvania - 1682; perhaps "the most influential of the Colonial documents protecting individual rights," as the Court opined in Faretta v. California, 422 U.S. 806, 829 - note 37 (1975). In Article VIII of the "Laws Agreed Upon in England, etc”, it states:
"That all trials shall be by twelve men, and as near as may be, peers or equals, and of the neighborhood, and men without just exception ... shall have the final judgment. But reasonable challenges shall be always admitted against the said twelve men, or any of them."
It should be evident that:
"[t]he provision that trial by jury shall be as heretofore and the right thereto remain inviolate has been a fundamental principle in this State from the time of Penn's charter....; it was embodied in the Constitution of 1776, and appears ipsissimis verbis in the Constitutions of 1790 and 1838." Commonwealth v. Collins, 268 Pa. 295, 299, (1920)
In order to ascertain the common law and also the true definitions of the words used in a Constitution, one must turn to historical documents of the time when a Constitution was written in order to fully and accurately understand the meaning of these fundamental "law of the land" compacts or contracts between the people and the governments which they created. For example, the United States Supreme Court has held:
"The language of the Constitution cannot be interpreted safely, except where reference to common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the convention who submitted it to the ratification of conventions of the thirteen states, were born and brought up in the atmosphere of common law and thought and spoke in its vocabulary... when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of common law, confident that they could be shortly and easily understood." Ex Parte Grossman, 267 US 87, 108 (1925).
The common law right to a trial by jury in all cases is most clearly defined in a 1786 case stemming from an act of the general assembly of Rhode Island, passed in May of that year, which made provisions with respect to the emission of paper money.
"In June the Legislature prescribed that any person who should refuse to receive the money in payment for goods on sale at the face value of the goods, or who should make two prices for such goods, one for paper and the other in silver, on conviction should be fined L 200 for the first offense. In August, 1786, the Legislature of Rhode Island passed a law that the offenses under this act should be tried by special courts without a jury, by a majority of the judges present according to the law of the land, and that three members thereof should be sufficient to constitute a court."
John Trevett tendered this money to John Weeden, a butcher, for meat, and when Weeden refused to accept the money, Trevett sued for the fine. It was objected that the trial by jury was a fundamental right in the State of Rhode Island, that the Legislature had no power to enact a law depriving a citizen of that right, and that the court could declare the act invalid. The court overruled this defense, and an appeal was taken to the Supreme Court of the state. But Rhode Island, unlike all the other states but Connecticut, had no written constitution in the modern sense, having continued after the Revolution under its colonial government. So the question before the higher court involved the invalidity of the statute because of its repugnancy to the provisions of the common law securing to the citizens the right of trial by jury. While the five judges were considering this act, the excited people in the, streets were breathing forth their threats against them if they declared it invalid. Notwithstanding, they all agreed that the act was void. The legislature threatened impeachment and refused to reelect them. No opinion was written, but when the judges appeared before the [8] legislature in October, 1786, on charges of treason and misconduct, some of them gave as reason for their decision that the defendant was entitled to trial by jury according to the law of the land."[Coxe, Judicial Power and Constitutional Legislation, pp. 234. 246, 249] "Here we have a case where an act was declared invalid because it deprived the defendant, not of a constitutional guarantee, but of a right secured to him by the common law." - FEDERAL USURPATION by Franklin Pierce of the New York Bar, pages 202 & 203; published January, 1908. (Bold, underline emphasis added.)
Clearly, trial by a jury of one’s peers is a common law right that pre-existed the 1776 Constitution for the Commonwealth of Pennsylvania, actually going all the way back to William Penn’s original charter. This right was secured by the said Constitution for ALL trials and ALL suits, and this provision has not lawfully changed.
During the debates of the various state conventions on the adoption of the federal constitution, the importance of a trial by jury was a prime topic.
"By the bill of rights of England, a subject has the right to a trial by his peers. What is meant by his peers? Those who reside near him, his neighbors, and are well acquainted with his character and situation in life." - Patrick Henry; from Elliot, The Debate in the Several States Conventions on the Adoption of the Federal Constitution, 3:579]; and
"Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off .... This gives me comfort - that, as long as I have existence, my neighbors will protect me." - Patrick Henry; from Elliot id. 3:545, 546; and
".....a jury of the peers would, from their local situation, have an opportunity to form a judgment of the character of the person charged with the crime, and also to judge of the credibility of the witnesses" - Mr. Holmes from Massachusetts; from Elliot id. 2:110.
Abraham Lincoln reminded Americans that:
"The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it"
Clearly, there are men (and women) such as Plaintiff’s counsel and the aforementioned judges Dobson and Ludgate, who have perverted the Constitution and rulings of Pennsylvania’s Superior Court and Supreme Court by their denial of a Defendant’s right to a trial by jury in foreclosure cases. This injustice can and must end beginning with this Honorable Court.
Having demonstrated the Common Law right to a trial by jury, Defendant now turns to the Pennsylvania Rules of Civil Procedure (Pa.R.C.P.) regarding a right to a trial by jury in civil in rem foreclosure actions.
First, let’s look at Rule 1038. Trial Without Jury.
(a) Except as otherwise provided in this rule, the trial of an action by a judge sitting without a jury shall be conducted as nearly as may be as a trial by jury is conducted and the parties shall have like rights and privileges, including the right to move for nonsuit.
Rule 1038 is then referenced by the following seven (7) Rules (underline emphasis added.):
Rule 1058. Trial Without Jury.
The trial of actions in ejectment by a judge sitting without a jury shall be in accordance with Rule 1038.
Rule 1067. Trial Without Jury.
The trial of actions to quiet title by a judge sitting without a jury shall be in accordance with Rule 1038.
Rule 1087. Trial Without Jury.
The trial of actions in replevin by a judge sitting without a jury shall be in accordance with Rule 1038.
Rule 1099. Trial Without Jury.
The trial of actions in mandamus by a judge sitting without a jury shall be in accordance with Rule 1038.
Rule 1114. Trial Without Jury.
The trial of actions in quo warranto by a judge sitting without a jury shall be in accordance with Rule 1038.
Rule 1150. Trial Without Jury.
The trial of actions to foreclose a mortgage by a judge sitting without a jury shall be in accordance with Rule 1038.
Rule 1164. Trial Without Jury.
The trial of actions to enforce a ground rent by a judge sitting without a jury shall be in accordance with Rule 1038.
The language in each section is identical, except for the type of action it refers to; for example, an action in replevin, an action in ejectment and an action in mortgage foreclosure, all of which are civil actions. Nowhere is there language even remotely suggesting a prohibition of the right to a trial by jury in these seven (7) Rules. They obviously instruct that if a defendant waives his/her right to a trial by jury, and opts for a bench trial instead, the trial should be conducted in accordance with Rule 1038a.
On the other hand, as the Pennsylvania Superior Court held in Dauphin Deposit Bank and Trust Company v. Tenny, 513 A.2d 459 (Pa. Super. 1986); “[b]ecause there were no issues regarding material facts and appellee was entitled to judgment as a matter of law, a jury trial was not an option for appellant.” Note that the Superior Court did not say there is no right to a trial by jury in a civil foreclosure action, it merely said because there were no issues of material fact in dispute, there was no reason for a trial by jury. That is a huge difference. In the instant civil in rem foreclosure action, there are numerous issues of material fact that must be decided by a jury.
There can be no other interpretation of these seven Rules, without those Rules falling into unconstitutional favor. The lower court cases cited by Plaintiff’s counsel are inapposite (and counsel had to have known that), and have created a daisy chain of bad decisions that cunning plaintiff’s attorneys have used to convince ill-informed judges that defendants in a civil in rem foreclosure action have no right to a trial by jury. Yet nothing could be further from the truth, as demonstrated above and by the following.
Again, please note that the language of the seven Rules above is identical except for the particular action it references. It should stand to reason then that all seven Rules should be enforced and followed in the exact same manner. In other words, if a lawfully enacted prohibition of the right to a trial by jury for any of the seven Rules could be found, it would apply equally to all seven. Conversely, if a lawful example of a trial by jury for any of the seven Rules could be found, then it would stand to reason that the right to a trial by jury would apply to all seven.
Lo and behold, what have we here? Two Pennsylvania Superior Court cases confirming the right to a trial by jury for cases regarding two of the seven Rules cited above, replevin and ejectment.
“On January 27, 1997, after a jury trial, this Court entered final judgment in favor of plaintiffs for possession of the property with the value of $34,715, together with interest of $2,835․ The plaintiffs have now filed suit on the counter replevin bond to recover the value of the property as determined by the jury.” COMMONWEALTH OF PENNSYLVANIA, to the Use of Ronald and Barbara ANDERSON, Appellees, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, Pressurized Screen Graphics, Inc., Capmasters, Inc., and Thomas J. Smith, (Decided: November 18, 2002) (Bold, underline emphasis added.)
and
“Appellees filed their claim for possession of the premises before the district magistrate and were awarded possession on December 22, 1995. Appellant then filed his summary appeal, and appellees filed their complaint in ejectment on February 6, 1996. Subsequently, a board of arbitrators rendered a verdict in favor of appellees, and appellant sought a trial de novo. On January 21, 1997, a jury trial was held, and the jury granted appellees' claim for possession of the property and denied appellant's counterclaim. This appeal followed.” Louise COLE and Jack Katona t/d/b/a Knotty Pine Trailer Court, Appellees, v. James J. CZEGAN, Appellant. (Decided: October 14, 1998) (Bold, underline emphasis added.)
Finally, for the icing on the right to trial by jury in civil in rem actions’ cake, there is the matter of Mishoe v. Erie Insurance, Co., 573 Pa. 267 (2003), which destroys Plaintiff’s counsel’s argument, as well as rulings of any sitting Pennsylvania judge who has ruled, or would rule, adversely on this issue. In Mishoe our Pennsylvania Supreme Court properly ruled thusly:
“[T]he applicable constitutional provision provides, in relevant part, that “[t]rial by jury shall be as heretofore, and the right thereof remain inviolate.” n.10 Pa. Const. art. 1, § 6. In construing this section, this Court has consistently held that the right to a jury trial as preserved by our Constitution extends to all causes of action that existed at the time the Constitution was adopted. See Wertz, 741 A.2d at 1275-76; Commonwealth v. One (1) 1984 Z-28 Camaro Coup, 530 Pa. 523, 610 A.2d 36, 41 (1993) (right to jury trial for in rem forfeiture cases preserved by Pennsylvania Constitution where such cases heard by juries at time of adoption of Constitution); William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, 64-65 (1961) (right to jury trial for obscenity charge preserved by Pennsylvania Constitution where such cases heard by juries at time of adoption of Constitution); Appeal of Watson, 377 Pa. 495, 105 A.2d 576, 577-78 (1954) (no right to jury trial on issue of tenure for teacher fired for “mental derangement” where such cases were not heard by juries at time of adoption of Constitution); Premier Cereal & Beverage Co. v. Pennsylvania Alcohol Permit Bd., 292 Pa. 127, 140 A. 158, 859-60 (1928) (no right to jury trial on issue of revocation of liquor license where such cases were not heard by juries at time of adoption of Constitution). …” Id., 573 Pa. at 579.
The n.10 referenced in the Supreme Court’s ruling directly above, reads as follows:
“This provision has remained essentially unchanged since the Constitution of 1790 was adopted. See Wertz, 741 A.2d at 1275-76. The Constitution of 1776 generally provided that, in civil suits, “the parties have a right to trial by jury, which ought to be held sacred.” Pa. Const. 1776 ch. 1, cl. 11, and that “[t]rials shall be by jury as heretofore, and the right thereof remain inviolate.” Pa. Const. (1790) art. 9, § 6. The wording of this provision has not changed since 1790, although in 1874 it was moved to a different section within the Constitution. See Pa. Const. (1838) art. 9, § 6; Pa. Const. (1874) art. 1, § 6; Pa. Const. (1968) art. 1, § 6.
These three Pennsylvania appellate cases confirm that a defendant in a civil in rem action absolutely has the right to a trial by jury, which would include the subject matter of all seven of the Rules addressed above because they are all civil actions, including an in rem foreclosure action. Plaintiff’s counsel is wrong, and the two judges cited from Courts of Common Pleas are wrong in ignoring Pennsylvania’s appellate courts’ rulings and stare decisis by denying a defendant their right to a trial by jury for a civil in rem foreclosure action, and Defendant is prepared to take this matter to the Pennsylvania Supreme Court if necessary.
Now, if a pro se Defendant unschooled in the law could find these cases, it stands to reason that a law school trained attorney and sitting judges, all of whom have easy on-line access to Westlaw and Lexis-Nexis, certainly should be able to find and/or be aware of these same cases. So why weren’t they aware of them? Or, did they conveniently ignore them, hoping a pro se defendant would never discover them, allowing Plaintiff to steal another Pennsylvania home through an unlawful foreclosure?
Among the “long train of abuses” listed by Thomas Jefferson in the Declaration of Independence was this: “For depriving us, in many Cases, of the Benefits of Trial by Jury.”
An article entitled All That is Substantial and Beneficial in a Trial by Jury by James Breig can be found on the Colonial Williamsburg web site at: https://www.history.org/Foundation/journal/Spring08/trials.cfm.
In this article, Breig tells how Jefferson could draw on what he’d already composed in 1774, A Summary View of the Rights of British America in support of instructions he proposed the Virginia General Assembly give to its delegation to the First Continental Congress. Among the abuses it discussed was an act of Parliament by which a murder committed in Massachusetts is,
“if the governor pleases, to be tried in . . . the island of Great Britain. . . . The witnesses, too . . . are to . . . appear at the trial. . . . Who does his majesty think can be prevailed on to cross the Atlantic for the sole purpose of bearing evidence to a fact? . . . And the wretched criminal, if he happen to have offended on the American side, stripped of his privilege of trial by peers of his vicinage, removed from the place where alone full evidence could be obtained, without money, without counsel, without friends, without exculpatory proof, is tried before judges predetermined to condemn.” (Bold, underline emphasis added.)
Jefferson’s fears have been realized in Pennsylvania civil in rem foreclosure actions, where the right to a trial by jury is summarily denied by lower court judges predetermined to award judgment to wrongfully foreclosing plaintiffs, which they have routinely done. This can and must end, beginning with this Honorable Court.
CONCLUSION
There can be no doubt that Plaintiff’s foreclosure action against Defendant is a civil suit, albeit wrongful, but civil nonetheless. Plaintiff also claims it is an in rem action, that is, an attempt to take (through theft) Defendant’s property (the thing) in order to sell it at sheriff’s sale for monetary recovery on a presumed but unproven debt.
Our Pennsylvania Supreme Court has ruled in congruity with our Constitution that “in civil suits” the right to a trial by jury is constitutionally protected and shall remain inviolate. What more needs to be said on the trial by jury issue?
The lower court decisions cited by Plaintiff’s counsel are wrong because they ignored the multiple holdings of Pennsylvania’s appellate courts which have never ruled that a defendant does not have a right to a trial by jury in a civil in rem foreclosure action. Never.
It appears that these plaintiff’s motions to strike jury trial demands of defendants are being raised by less than honest Plaintiff’s attorneys because they are TERRIFIED at the thought of having they and their client’s corrupt and fraudulent foreclosure tactics heard and rejected by a jury.
Surely they are aware of what happened in Wolf v. Wells Fargo, a very recent state court action in Harris County, Texas[1]. The jury awarded David and Mary Ellen Wolf $190,000 in actual and emotional damages, $190,000 in attorney’s fees, and $5.4M in punitive damages, for Wells Fargo winning what was clearly a wrongful foreclosure by using a fraudulently created Assignment of Mortgage by a defunct entity, New Century Mortgage Corporation.
The jury award in the Wolf case is precisely why foreclosure plaintiff’s attorneys are trying to destroy the constitutional protections of a defendant’s right to a trial by jury in civil in rem foreclosure actions – because of the fraud and corruption they use in the litigation process that might well be heard and rejected by a jury.
Apparently, Plaintiff’s attorneys must believe it is easier to convince one judge rather than twelve jurors, that their corrupt and fraudulent practices are legitimate, when they are not. There can be no other explanation for their motions to strike a defendant’s jury trial demand.
WHEREFORE, Defendant, for all the reasons stated and referenced herein, respectfully demands this Honorable Court: a) DENY Plaintiff’s motion and hearing; and b) AFFIRM Defendant’s right to a Common Law Trial by Jury by a fully-informed jury of his peers who shall adjudge all the facts relevant to this civil in rem foreclosure matter.
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[1] In the District Court of Harris County, Texas, 151st Judicial District, Cause No. 2011-36476.
