J-E03004-14
2015 PA Super 267
ROY H. LOMAS, SR. D/B/A/ ROY LOMAS IN THE SUPERIOR COURT OF
CARPET CONTRACTOR PENNSYLVANIA
Appellee
v.
JAMES B. KRAVITZ, ANDORRA SPRINGS
DEVELOPMENT, INC., CHERRYDALE
CONSTRUCTION CO., EASTERN
DEVELOPMENT ENTERPRISES, INC., AND
KRAVMAR, INC.
Appellants No. 2391 EDA 2011
Appeal from the Judgment Entered August 16, 2011
In the Court of Common Pleas of Montgomery County
Civil Division at No: 00-5929
BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., DONOHUE, J., SHOGAN,
J., ALLEN, J., LAZARUS, J., WECHT, J., and STABILE, J.
CONCURRING AND DISSENTING OPINION BY STABILE, J.:
Filed: December 21, 2015
I join the Majority’s1 opinion insofar as it affirms the liability verdict.
For the following reasons, I would vacate the damages verdict and remand
for a new damages trial in front of Judge from outside of Montgomery
County.
In my view, the Honorable Thomas P. Rogers of the Montgomery
County Court of Common Pleas erred in denying Appellants’ motion to
recuse the entire bench of the Montgomery County Court of Common Pleas
1
I will refer to the opposing opinion as the Majority opinion based on our
unanimous affirmance of the liability verdict.
1
J-E03004-14
from hearing the damages trial in this action. This is so because the
Honorable Thomas C. Branca, Judge Rogers’ colleague on the Montgomery
County bench, has a substantial financial interest in the outcome of this case
based on his former representation of Appellee. While I do not doubt Judge
Rogers’ ability to render a fair and impartial verdict, I also do not believe he
could preside over this matter without creating an appearance of impropriety
detrimental to the public’s faith in the fair and impartial operation of the
courts. Under the circumstances of this case, the same is true for every
judge of the Montgomery County Court of Common Pleas.2 I believe the trial
court dismissed and ignored the independent consideration of an
“appearance of impropriety” that must be considered under a recusal
motion.
This matter originally commenced as an arbitration demand by
Appellee for an unpaid contract balance of $30,913.00. After other
compensatory damages, interest, attorney’s fees, and costs were added to
the contract balance, the arbitration award was confirmed as a judgment for
$200,601.61. Appellee then commenced this action to collect the judgment.
2
Contrary to the Majority’s assertion, I believe this dissent provides ample
guidance, based upon available legal precedent, to require recusal of the
entire Montgomery County bench. The number of judges per se that share a
common bench is not determinative of this issue. Rather, as explained, it is
the appearance of impropriety of any one of them hearing this matter that is
problematic. In a sense, requiring recusal of the entire county bench is
similar to the rule of imputation whereby all lawyers of a firm must disqualify
from a matter if any member of the firm is prohibited from doing, except
where the prohibition is based upon a personal interest of the prohibited
lawyer. See Rules of Professional Conduct 1.10.
-2-
J-E03004-14
These proceedings were bifurcated between liability and damages. The
recusal issue in this case concerns the damages trial wherein Judge Rogers
increased the final arbitration award of damages to Appellee to
$1,688,379.10. A substantial component of this award was the result of
Judge Rogers exercising his discretion to award punitive damages of three
times the arbitration award of $200,601.61 to Appellee. To this, he added
attorney’s fees, additional interest, and statutory penalties. He did so at a
time when he knew Judge Branca, a judicial colleague of his on the
Montgomery County bench, would directly and proportionally benefit from
the size of any increased award entered in the case. Contrary to prior
statements that Judge Branca had been paid in full for his prior
representation of Appellee, it became known during Judge Branca’s
testimony in the damages trial that he was in fact to receive a thirty-percent
contingent fee of any net recovery.
Judge Rogers denied Appellants’ motion to recuse on the basis that
Appellants did not establish actual prejudice or bias on his part in presiding
over these proceedings. Trial Court Opinion, 12/31/08, at 10. He further
rejected any argument that an “imputed appearance of impropriety” by
virtue of Judge Branca’s pecuniary interest supports a conclusion that
Appellants “cannot receive, have not received or will not continue to receive”
a fair and impartial trial in Montgomery County. Id. at 11.
-3-
J-E03004-14
I would reverse the trial court’s recusal ruling because the appearance
of impropriety alone forms an independent basis for recusal even when no
actual bias, unfairness, or prejudice is shown on the part of a trial court
judge. I am mindful that our case law has not always spoken with clarity on
the standard for recusal, as will be discussed, infra. Accordingly, I find it
necessary to review the evolution of the “appearance of impropriety” in our
recusal standard before explaining the indispensable importance of this
standard and why I believe the motion to recuse the entire Montgomery
County bench should have been granted.
History of the Appearance of Impropriety Standard
The mandatory avoidance of an “appearance of impropriety” in judicial
decision-making has a long and storied history in our nation. By most
accounts, this standard first was articulated as a judicial standard under the
ABA’s Canons of Judicial Ethics promulgated in 1924.3 The 1924 Canons
reminded judges to avoid the appearance of impropriety in all professional
and personal activities.4 The impetus for the ABA promulgating this Canon
3
See Raymond J. McKoski, Judicial Discipline and the Appearance of
Impropriety: What the Public Sees Is What the Judge Gets, 94 MINN. L. REV.
1914, 1921 (2010).
4
Id.
-4-
J-E03004-14
lies in the fixing of the 1919 World Series.5 Many felt at the time that
gambling and bribery were corrupting the country’s national pastime.6 The
ABA was motivated by the actions of Judge Kenesaw Mountain Landis, who
accepted a job as the first commissioner of Major League Baseball while
serving as a federal judge for the Northern District of Illinois. Major League
Baseball team owners appointed Judge Landis in response to the “Black Sox”
scandal, in which eight Chicago White Sox players were accused of accepting
money from professional gamblers to lose the 1919 World Series to the
underdog Cincinnati Reds. A jury acquitted the eight players of criminal
wrongdoing, but Judge Landis banned them for life from the major leagues.
Judge Landis’ refusal to leave the federal bench while drawing a large salary
as baseball commissioner prompted a censure from the ABA and talk of
impeachment in Congress.7
Although they strongly disapproved of Judge Landis serving as a
federal judge at the same time he was drawing compensation as baseball’s
Commissioner, the Judge’s detractors, as well as the United States Attorney
General, were unable to identify any law or ethics rule barring Judge Landis
5
See McKoski, supra note 9, at 1922. See also Peter W. Morgan, The
Appearance of Propriety: Ethics Reform and the Blifil Paradoxes, 44 STAN. L.
REV. 593, 598 (1992).
6
McKoski, supra note 9, at 1922.
7
Judge Landis served as commissioner until his death in 1944. Id.
-5-
J-E03004-14
from simultaneously holding both public and private employment. 8 Further,
there was no evidence the Judge’s baseball duties interfered with his judicial
duties.9 The ABA nonetheless, during the course of its Forty-Fourth Annual
Meeting in 1921, proceeded to pass a resolution condemning Judge Landis
for engaging in private employment while receiving a salary from the federal
government.10 In the ABA’s opinion, this was conduct it considered
“unworthy of the office of judge, derogatory to the dignity of the Bench, and
undermining public confidence in the independence of the
judiciary.”11 (Emphasis added). In further response, the ABA issued the
1924 Canons, which included Canon 4, to encourage judges to avoid any
professional or personal conduct perceived to damage the image of a judge.
Canon 4, as adopted by the ABA in 1924, although not stated in mandatory
terms, advised, “[A] judge’s official conduct should be free from impropriety
and the appearance of impropriety.”12 We thus can see from the genesis of
8
McKoski, supra note 9, at 1923.
9
Id.
10
Id. at n.49.
11
Id. It is interesting to note that none other than a Pennsylvanian to the
ABA convention, Hampton L. Carson of Philadelphia, proposed this resolution
of condemnation. See id. (citing REPORT OF THE FORTY-FOURTH ANNUAL MEETING
OF THE AMERICAN BAR ASSOCIATION (September 1, 1921) at 61-67).
12
Id. at 1925.
-6-
J-E03004-14
the “appearance of impropriety” standard, actual prejudice or bias was not a
prerequisite to finding an appearance of impropriety.
In 1969, the 1924 Canons were revisited in response to a controversy
surrounding United States Supreme Court Justice Abe Fortas.13 Justice
Fortas was to receive $20,000 as compensation to help the activities of a
foundation.14 When the Justice was paid, the foundation’s director was
under investigation by the Securities and Exchange Commission.15 Justice
Fortas returned his consulting fee and cancelled his agreement only after the
director was indicted.16 Public criticism of Justice Fortas accused him of
raising a question about the appearance of virtue on the Court.17 The ABA
moved to censure Justice Fortas, finding his conduct to be contrary to the
Canons of Judicial Conduct and, in particular, that his conduct was contrary
to Canon 4’s command that his conduct be free from impropriety and the
appearance of impropriety.18 Again, in response, the ABA moved to
strengthen the judicial canons by moving Canon 4 to Canon 2, and adding
that the appearance of impropriety standard would now serve as an
13
Id. at 1926.
14
Id.
15
Id.
16
Id.
17
Id. at 1927.
18
Id. at 1928.
-7-
J-E03004-14
enforceable rule of conduct.19 In 1990, the Code again was amended to
strengthen Canon 2 by substituting “shall” for “should” to eliminate any
doubt that the appearance of impropriety was now a mandatory
prohibition.20 The Commentary to Canon 2 of the 1990 Code provided that
“the test for appearance of impropriety is whether the conduct would create
in reasonable minds a perception that the judge’s ability to carry out judicial
responsibilities with integrity, impartiality, and competence is impaired.” 21
In 2007, after some deliberation and attempted amendments to
demote the appearance standard to a guiding principle, the ABA, rejecting
this approach, adopted Rule 1.2 of the Model Code of Judicial Discipline to
provide “[a] judge shall act at all times in a manner that promotes public
confidence in the independence, integrity, and impartiality of the judiciary,
and shall avoid impropriety and the appearance of impropriety.” 22 In
addition, Comment 5 to Rule 1.2 was added to provide that “the test for
appearance of impropriety is whether the conduct would create in
reasonable minds a perception that the judge violated this Code or engaged
19
Id.
20
Id. at 1931.
21
Id.
22
Id. at 1935.
-8-
J-E03004-14
in other conduct that reflects adversely on the judge’s honesty, impartiality,
temperament, or fitness to serve as a judge.”23
It is significant that Pennsylvania’s current Code of Judicial Conduct24
mirrors Canon 2, Rule 1.2 and Comment 5 to the 2007 ABA Code. Avoiding
the appearance of impropriety under Canon 2 to Pennsylvania’s Code is
mandatory. This prohibition is further reinforced under Rule 1.2 and
Comment 5 to Rule 1.2, which provides a judge “shall avoid impropriety and
the appearance of impropriety.” Pa. Code Jud. Conduct, Canon 1, Rule 1.2,
cmt. 5. Accordingly, there can be no doubt, in light of this history, and the
current status of our Code of Judicial Conduct, that avoiding “impropriety”
and the “appearance of impropriety” is not only important, but also
mandatory in Pennsylvania.
The Substantive Right to Request a Jurist’s Recusal
Appellee would dismiss this history of the appearance of impropriety
as irrelevant to the resolution of the present recusal dispute. Appellee
argues that our Judicial Canons only serve as guidelines for jurists and do
not have the force of substantive law. Appellee’s Supplemental Brief at 18.
Appellee argues both the Pennsylvania Supreme Court and this Court have
repeatedly held the Judicial Code of Conduct is not the standard for recusal
23
Id. at 1936.
24
The Code of Judicial Conduct has been revised, renumbered and amended
effective July 1, 2014.
-9-
J-E03004-14
motions, does not impose substantive legal duties on judges, and does not
provide standing to anyone, including this Court, to seek compliance or
enforcement of the Code. Id. While it is true that Pennsylvania’s Judicial
Code of Conduct does not vest substantive rights in litigants and may be
enforced only by our Supreme Court under Article 525 of the Constitution of
this Commonwealth, it also is true that litigants have a substantive right to
request recusal when a litigant has reason to question the impartiality of a
jurist. Goodheart v. Casey, 565 A.2d 757, 762 (Pa. 1989), Reilly v.
Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291, 1298 (Pa.
1985). The “appearance-of-impropriety” standard, while originating under
canons of judicial conduct, has been adopted as a part of our substantive
law and, as will be shown, is a necessary component of due process.
In Caperton v. A.T. Massey Coal Company, Inc., 556 U.S. 868
(2009), the United States Supreme Court reviewed whether Justice Brent
Benjamin of the West Virginia Supreme Court of Appeals, who received
extraordinary campaign contributions from the board chairman and principal
officer of the appellant corporation, violated the Due Process Clause of the
Fourteenth Amendment when the Justice denied a recusal motion. The $3
million campaign contribution to the Justice exceeded the total amount spent
by all other supporters of the Justice and by the Justice’s own campaign
committee. The West Virginia Supreme Court of Appeals reversed a trial
25
Article 5, § 10 vests the Supreme Court with “supervisory administrative
authority” over the courts of Pennsylvania. PA CONST., art. V, § 10(a).
- 10 -
J-E03004-14
court judgment against the appellant for $50 million. The vote to reverse
was 3 to 2. Justice Benjamin voted with the majority. In his defense,
Justice Benjamin reiterated he had no direct, personal, substantial, or
pecuniary interest in the case. Id. at 876. Adopting a standard of
appearances, he concluded, seemed little more than an invitation to subject
West Virginia’s justice system to the vagaries of the day. Id. The Supreme
Court disagreed.
Before turning its attention to the constitutional issue to be decided,
the Caperton Court first noted that, while it was axiomatic that a fair trial in
a fair tribunal is a basic requirement of due process, most matters relating
to judicial disqualification do not rise to a constitutional level. Id. Judicial
reforms implemented by the states to eliminate even the appearance of
impropriety, a standard more rigorous than due process, make resolution of
most disqualification disputes under due process standards unnecessary.
Id. at 889-90. “The Due Process Clause demarks only the outer boundaries
of judicial disqualifications. Congress and the states, of course, remain free
to impose more rigorous standards for judicial disqualification[.]” Id.
(quotation marks omitted).
In Caperton, the Supreme Court first reviewed the history of its
recusal cases to demonstrate that the relevant inquiry under the Due
Process Clause is an objective standard. Id. at 877-81. The Court found
this necessary due to the difficulties of inquiring into a judge’s actual bias
- 11 -
J-E03004-14
when the inquiry is often a private one. Id. at 883. A “judge’s own inquiry
into actual bias, then, is not one the law can easily superintend or review ….”
Id. Therefore, in lieu of appellate review of a judge’s actual bias, the Due
Process Clause has been implemented by objective standards that do not
require proof of actual bias. Id. Under this objective standard, the Court
found, despite Justice Benjamin undertaking an extensive search for actual
bias, that when a person with a personal stake in a case had a significant
and disproportionate influence in placing a judge on a case by raising funds
or directing a judge’s election campaign when a case is imminent or
pending, due process is violated. Id. at 884. The Court dismissed concerns
that its decision on due process grounds would flood the courts with recusal
motions. Id. at 887. The case presented extreme facts that created an
unconstitutional probability of bias. Significantly, to assuage these fears
further, the Court, as noted supra, pointed to judicial reforms the States
have implemented to eliminate the appearance of partiality by adopting the
ABA’s objective standard that “[a] judge shall avoid impropriety and the
appearance of impropriety.” Id. at 888. In this regard, the Court held that
these codes of conduct serve to maintain the integrity of the judiciary and
the rule of law. Id. at 889. The power and prerogative of a court to
elaborate principles of law when resolving disputes rest, in the end, upon the
respect accorded to its judgments. Id. at 889 (citing Republican Party of
Minn. v. White, 536 U.S. 765, 793 (2002) (Kennedy, J., concurring)). The
- 12 -
J-E03004-14
citizen’s respect for judgments depends in turn upon the issuing court’s
absolute probity. Id. “Judicial integrity is, in consequence, a state interest
of the highest order.” Id. For these reasons, the Court continued, States
may choose to adopt recusal standards more rigorous than due process
requires. Id.
It is thus clear from Caperton that when confronted with a request for
judicial recusal, due process requires more than a jurist’s examination of his
or her conscience for bias. Due process requires a more objective standard.
While exceeding minimal due process requirements, the appearance of
impropriety, adopted by almost every state in its judicial code, 26 satisfies
this objective requirement. Therefore, while Appellee is correct that litigants
do not have standing to enforce our Code of Judicial Conduct, Appellee
paints with too broad a brush by arguing that the appearance of impropriety
under our Code also is not a part of our substantive law upon which litigants
may rely when presenting a recusal motion. The Pennsylvania Supreme
Court’s announcement of a recusal standard in Goodheart, infra, is proof
enough that the appearance of impropriety is a part of our substantive law.
In Goodheart, our Supreme Court, upon a motion for reconsideration,
was asked to consider whether two of the Court’s justices, as members of
the class before the Court challenging a two-tiered compensation system for
26
As of the time Caperton was decided almost every State had adopted
the American Bar Association’s objective standard of the appearance of
impropriety. Id. at 888.
- 13 -
J-E03004-14
judges, should have participated in the Court’s decision where it was
asserted the two justices had direct interests in the case. Participation by
the two justices was challenged under the Due Process Clause of the United
States Constitution and Pennsylvania’s Code of Judicial Conduct. The due
process challenge was rejected, as the Court reasoned the votes of the two
justices were surplusage. Goodheart, 565 A.2d at 761-62. Disposition of
the challenge under Canon 3(C) of the Code of Judicial Conduct 27 also was
dismissed. Even if there was a clear violation of the Code, the Court held
this would not confer substantive rights upon the parties. Id. at 762. The
power to address judicial violation of Code norms was a matter left entirely
to the Supreme Court’s constitutional supervisory authority. 28 Id.
Notwithstanding the lack of any substantive rights in Canon 3(C) by the
litigants, the Court held that when a judge conducts the self-assessment
required when addressing a motion to recuse, Canon 3(C) provides some of
the factors bearing upon that evaluation. Even though judicial discipline
remains the province of the Supreme Court, the Court was careful to point
out that, under our substantive law, a party to an action still has the right to
request the recusal of a judge where the party has reason to question the
27
The specific provisions of the prior Canon challenged in Goodheart can
be found in current Rule 2.11 to Canon 1 of the current Code of Judicial
Conduct that instructs “[a] judge . . . shall avoid impropriety and the
appearance of impropriety.”
28
As noted earlier, the Supreme Court derives that authority from Article 5,
§ 10 of the state constitution. PA CONST., art. V, § 10(a).
- 14 -
J-E03004-14
impartiality of the judge in the case before the court. Id. The Court
continued:
Where there is a question of the impartiality of one or
more of the Justices, it is the individual Justice’s responsibility to
make a conscientious determination whether he or she can
impartially assess the issues in question. It is to be emphasized
that this assessment is two tiered. First, whether the Justice
would have a personal bias or interest which would preclude an
impartial review. This is a personal and unreviewable
decision that only the jurist can make. Second, whether his
participation in the matter would give the appearance of
impropriety. [T]o perform its high function in the best way,
“justice must satisfy the appearance of justice.”
Id. at 764 (emphasis added) (quoting Offut v. United States, 348 U.S. 11,
14 (1954)); see also Commonwealth v. Travaglia, 661 A.2d 352, 370
(Pa. 1995). Thus, one can see that Goodheart incorporated the appearance
of impropriety standard as a part of our substantive law in the second tier of
its test. This is consistent with the Supreme Court’s discussion in Caperton,
as the appearance of impropriety standard supplies a level of objective
review to satisfy due process requirements. The trial court erred in
disregarding this standard and by focusing solely upon actual bias.
Proper Application of the Appearance of Impropriety Standard
Unfortunately, cases subsequent to Goodheart that have attempted
to cite its recusal standard have contributed to confusion on whether a trial
judge’s decision may be subject to review. Notably, in the oft-cited case of
Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998), our Supreme
Court stated:
- 15 -
J-E03004-14
As a general rule, a motion for recusal is initially directed
to and decided by the jurist whose impartiality is being
challenged. In considering a recusal request, the jurist must
first make a conscientious determination of his or her ability to
assess the case in an impartial manner, free of personal bias or
interest in the outcome. The jurist must then consider whether
his or her continued involvement in the case creates an
appearance of impropriety and/or would tend to undermine
public confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make.
Id. at 89 (citation omitted) (emphasis added).29 The recusal standard as
repeated in Abu-Jamal and cited ever since, contains a subtle and
unexplained distinction from the Supreme Court’s earlier pronouncement of
this standard in Goodheart. The Abu-Jamal Court cited Goodheart with
no apparent disapproval, but did not explain its transposition of the non-
reviewability standard—applicable only to the first tier of Goodheart—to the
second tier of the Goodheart test, where review of the appearance of
impropriety standard is subject to an abuse of discretion review. It appears
certain that this transposition is by mistake, because the evolution of this
two-tiered approach is long standing.
29
Pennsylvania Courts commonly and frequently cite the Abu-Jamal
standard as well settled. See, e.g., Commonwealth v. Flor, 998 A.2d
606, 641-42 (Pa. 2010), cert. denied, 131 S. Ct. 2102 (2011);
Commonwealth v. Miller, 951 A.2d 322, 328 (Pa. 2008);
Commonwealth v. White, 910 A.2d 648, 657 (Pa. 2006);
Commonwealth v. Tharp, 830 A.2d 519, 534 (Pa. 2003), cert. denied, 541
U.S. 1045 (2004); Commonwealth v. Melvin, 103 A.3d 1, 23 (Pa. Super.
2014); Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa. Super. 2014),
appeal denied, 101 A.3d 102 (Pa. 2014); Rohm & Hass Co. v. Lin, 992
A.2d 132, 149 (Pa. Super. 2010); Overland Enter. v. Gladstone
Partners, L.P., 950 A.2d 1015, 1021 (Pa. Super. 2008); Commonwealth
v. Bonds, 890 A.2d 414, 418-19 (Pa. Super. 2005), appeal denied, 906
A.2d 537 (Pa. 2006).
- 16 -
J-E03004-14
Under our substantive law, the appearance of impropriety alone is
enough to warrant recusal under appropriate circumstances. Our case law
has established that a judge’s self-evaluation must yield when an
appearance of impropriety is present. For example, in In re McFall, 617
A.2d 707 (Pa. 1992), the trial judge was cooperating with F.B.I.
investigators seeking information on judges accepting gifts in return for the
F.B.I.’s promise to divulge her cooperation in the event the judge faced
prosecution for a gift she accepted from a potential litigant. Id. at 711. At
the same time the trial judge was cooperating with the F.B.I., she was
presiding over cases in which her potential prosecutors were prosecuting the
appellees in an action. The appellant argued the trial judge’s ability to
maintain impartiality was not influenced because the appellees had not
demonstrated the trial judge had a “direct, personal, substantial, pecuniary
interest in the cases in which she presided,” or in other words, appellees
failed to demonstrate they were prejudiced. Id. at 714.
Our Supreme Court held the circumstances were such that it need not
reach the issue of due process because it concluded the appearance of
impropriety alone compelled it to grant new proceedings in view of the
blatant potential conflict of interest of the trial judge. Id. at 712. The Court
stated, “In order for the integrity of the judiciary to be compromised, we
have held that a judge’s behavior is not required to rise to a level of actual
prejudice, but the appearance of impropriety is sufficient.” Id.
- 17 -
J-E03004-14
(emphasis added). “The appearance of bias or prejudice can be as
damaging to public confidence in the administration of justice as would be
the actual presence of either of these elements.” Id. at 713 (citing
Commonwealth v. Goodman, 311 A.2d 652, 654 (Pa. 1973)). The Court
expressly held there is no need to find actual prejudice; the appearance of
impropriety is sufficient to warrant a new trial. Id. at 714. Therefore, the
mere possibility that the trial judge may have treated the prosecutor’s office
in a way so as to maximize her chances for leniency was all that was needed
to establish the appearance of impropriety. Id. A showing of actual bias
was not required.
In White, the judge shared personal family information from the
bench with a juvenile defendant and offered to get the defendant pizza
during her incarceration. The trial court also expressed frustration with the
existing law as applied to the defendant’s case and expressed her intent not
to be “boxed into treating this like a normal case.” White, 910 A.2d at 657.
The Majority30 concluded the trial court erred in denying the
Commonwealth’s recusal petition, reasoning that the trial court’s
“denouncement of the very system in which an impartial jurist is one of the
key components creates the appearance of impropriety.” Id. at 658. The
30
Justice Eakin authored the opinion announcing the judgment of the Court
in White. He wrote for a four-Justice majority with regard to the merits of
the Commonwealth’s petition requesting the trial court to recuse.
- 18 -
J-E03004-14
trial court’s “questionable conversation” with the defendant also added to
the appearance of impropriety. Id.
In Commonwealth v. Darush, 459 A.2d 727, 729 (Pa. 1983), the
defendant alleged the trial judge made derogatory remarks about the
defendant while the judge was a district attorney. The trial court judge
declined to admit or deny that he made the statement, claiming he had no
recollection. Id. at 732. The court also assured the defendant he would
receive a fair trial. Id. The Supreme Court discerned no evidence of bias
and was convinced the judge acted with complete integrity. Id. at 729, 732.
Nonetheless, the Court remanded for resentencing before a different judge:
However, considering all the circumstances, especially the
trial court’s inability to affirmatively admit or deny making
remarks from which a significant minority of the lay
community could reasonably question the court’s impartiality,
we feel the largely unfettered sentencing discretion afforded a
judge is better exercised by one without hint of animosity toward
appellant.
Id. at 732 (emphasis added).31
31
The revised Code of Judicial Conduct defines impropriety as follows:
The test for appearance of impropriety is whether the
conduct would create in reasonable minds a perception that the
judge violated this Code or engaged in other conduct that
reflects adversely on the judge’s honesty, impartiality,
temperament, or fitness to serve as a judge.
Pa. Code Jud. Conduct, Canon 1, Rule 1.2, cmt 5. As noted elsewhere in
this opinion, this Court has no authority to enforce the Code of Judicial
Conduct. In any event, I do not believe I need to address whether and to
what extent the “reasonable minds” standard of the Code differs from the
previous Code standard of a “significant minority of the lay community”
- 19 -
J-E03004-14
On the other hand, in Commonwealth v. Druce, 848 A.2d 104 (Pa.
2004), our Supreme Court affirmed the trial court’s denial of a recusal
motion where the court gave an interview to an Associated Press writer prior
to imposing sentence in a widely publicized prosecution of a state legislator.
In that interview, the judge called some of the defendant’s claims “strange,”
but also indicated in that interview that public sentiment would not sway his
handling of the case. Id. at 106-07. On the bench immediately before
imposing sentence, the trial court told the defendant he held no bias,
prejudice or ill will against him. Id. at 107.
The Supreme Court declined to create a per se rule requiring recusal in
light of the trial court’s ostensible violation of Canon 3A(6) of the Code of
Judicial Conduct, prohibiting public comment about a pending case. 32 The
Court noted that a per se rule would “remove any introspective discretion
from the jurist.” Id. at 109. “[T]his Commonwealth must continue to
reserve faith in, and give due deference to our jurists, and allow them to
address these initial challenges. Their discretion may of course be reviewed,
but it must first be allowed to be exercised.” Id. The trial judge in Druce
described in Darush. Pursuant to Commonwealth ex. rel. Armor v.
Armor, 398 A.2d 173 (Pa. Super. 1978) (en banc) (plurality), and my
analysis in the main text, I believe the circumstances of this case present an
appearance of impropriety under substantive state law governing recusal. I
do not believe that a judicial adoption of the “reasonable minds” standard of
the Code would alter that result.
32
The provision governing public comment on pending cases has been
revised and renumbered as Rule 2.10 of the Code of Judicial Conduct.
- 20 -
J-E03004-14
asserted his impartiality, both in the public interview and from the bench in
response to the petition to recuse. Id. at 110-11. Our Supreme Court
affirmed the judge’s denial of the recusal motion. Id. at 111.
Similarly, in Travaglia, the PCRA judge made disparaging comments
about the petitioner after the close of petitioner’s trial: “I am shocked that it
takes 11 years in our judicial system to find an excuse to avoid the death
penalty. If anyone deserves to die, these two individuals [the petitioner and
his codefendant] do for killing four people for fun.” Travaglia, 661 A.2d at
369 n.37. In an opinion addressing the recusal request, the PCRA judge
wrote: “to say that the [c]ourt is highly dissatisfied with the present system
of perpetual appellate activity is not to say that the [c]ourt would vent its
frustrations by arbitrarily giving [the appellant’s] current arguments less
than the full and complete attention required by law.” Id. The PCRA court
therefore believed it could preside over the collateral review without creating
an appearance of impropriety. Id. The Supreme Court was satisfied with
the PCRA court’s opinion addressing the petition to recuse, deeming it
“thoughtful” and “detailed.” Id. The Court therefore discerned no abuse of
discretion in denying the recusal petition.
To summarize the foregoing, our courts have consistently held that
recusal is warranted when actual impropriety is shown on the part of a jurist
or, when appropriate, solely when an appearance of impropriety is present.
In other words, I believe the standard set forth in Goodheart governs our
- 21 -
J-E03004-14
analysis, and that standard is well grounded in history and law. Abu-Jamal
altered the Goodheart standard without explanation, but I do not believe
Abu-Jamal created a substantive change to the analysis.33 Numerous cases
analyzed herein, both pre- and post-Abu-Jamal, support this conclusion.
Appearance of Impropriety in this Case
I turn now to the trial court’s recusal decision in this case. The
standard guiding our review is if a judge feels he or she can hear and
dispose of a case fairly and without prejudice, that decision will be final
unless there is an abuse of discretion. See Reilly, Goodheart, Abu-Jamal,
supra; see also In re Crawford’s Estate, 160 A. 585 (Pa. 1931).
33
It seems sensible to treat the “final and unreviewable” language as
pertaining to the jurist’s personal examination of his or her own motives and
biases rather than the judge’s decision on whether an appearance of
impropriety exists. See Caperton, 566 U.S. at 883 (“The difficulties of
inquiring into actual bias, and the fact that the inquiry is often a private one,
simply underscore the need for objective rules.”).
Nonetheless, at least one three-judge panel of this Court has treated a trial
court’s decision on the appearance of impropriety as unreviewable.
Overland, 950 A.2d at 1021. The Overland Court wrote, “As to the
question of whether the specter of the appearance of judicial impropriety
was raised by the nature of the pending controversy . . . our caselaw is
clear that a jurist’s decision on whether same exists is unreviewable.” Id.
(citing Arnold v. Arnold, 847 A.2d 674, 681 (Pa. Super. 2004)). The
Overland Court’s reliance on Arnold is misplaced. The appellant in Arnold
argued the trial court’s rulings against him evinced the court’s bias. Arnold,
847 A.2d at 680. This Court merely held that adverse rulings alone are not
evidence of bias, especially where those rulings were not legally erroneous.
Id. at 681. The circumstances of Arnold are therefore distinct from
Overland and from the matter on appeal. I would disapprove the
Overland panel’s statement on the reviewability of the appearance of
impropriety.
- 22 -
J-E03004-14
The trial court prefaced its recusal analysis, citing Municipal
Publications, Inc., v. Court of Common Pleas, 489 A.2d 1286 (Pa.
1986), and Reilly, with its statement that the Supreme Court of
Pennsylvania promotes the standard of actual prejudice or bias in reviewing
recusal proceedings. Trial Court Opinion, 12/31/08, at 10. From this the
trial court denied Appellants’ recusal motion, concluding the record did not
show prejudice or bias or that Appellants did not receive a full, fair and
impartial trial. Id.
The trial court either read these cases too narrowly or read them
improperly. The issue in Municipal Publications was whether the trial
judge should be disqualified from ruling on a recusal motion when the trial
judge was called as a material witness and gave testimony concerning his
own conduct. These were unique circumstances that were heard, upon
application, under the Supreme Court’s plenary jurisdiction. Unlike the issue
here, the Court emphasized it was not deciding whether the trial judge
should be disqualified from presiding over the underlying matter. It was
concerned only with whether the trial judge could rule upon the motion. The
case is, therefore, inapposite.
Reilly, unlike Municipal Publications, did concern a motion for
recusal. The Reilly Court found the Crawford recusal standard still to be
controlling. In Crawford the Court wrote:
The proper practice on a plea of prejudice is to address an
application by petition to the judge before whom the proceedings
- 23 -
J-E03004-14
are being tried. He may determine the question in the first
instance, and ordinarily his disposition of it will not be
disturbed unless there is an abuse of discretion.
Due consideration should be given by him to the fact
that the administration of justice should be beyond the
appearance of unfairness. But, while the mediation of courts
is based upon the principle of judicial impartiality,
disinterestedness, and fairness pervading the whole system of
judicature, so that courts may as near as possible be above
suspicion, there is, on the other side, an important issue at
stake; that is, that causes may not be unfairly prejudiced,
unduly delayed, or discontent created through unfounded
charges of prejudice or unfairness made against the judge
in the trial of a cause. It is of great importance to the
administration of justice that such should not occur. If the
judge feels that he can hear and dispose of the case fairly
and without prejudice, his decision will be final unless
there is an abuse of discretion. This must be so for the
security of the bench and the successful administration of
justice. Otherwise, unfounded and ofttimes malicious charges
made during the trial by bold and unscrupulous advocates might
be fatal to a cause, or litigation might be unfairly and improperly
held up awaiting the decision of such a question or the
assignment of another judge to try the case [].
When a charge of disqualification is made against a
trial or hearing judge, the party must produce evidence
which has a tendency to show bias, prejudice or
unfairness. To sustain the charge, the exceptant is not limited
to the instant case, but he may show personal ill will to client or
counsel, or temperamental prejudice on the particular class of
litigation involved, or any other recognized ground.
Crawford, 160 A. at 587 (emphasis added). The Crawford Court’s analysis
of the interplay between avoiding the appearance of unfairness (or
impropriety) while affording appropriate deference to jurists remains
prescient. It did not hold, as the trial court suggests, that review for an
appearance of impropriety may be dispensed with so long as the record did
- 24 -
J-E03004-14
not show prejudice or bias or that Appellants did not receive a full, fair and
impartial trial.
Turning now to the circumstances of the instant appeal, the record
reflects the following exchange between Appellants’ counsel and Judge
Branca on the second and final day of the damages trial that prompted the
recusal issue:
Q. You mentioned you were given updates [from
Appellee’s counsel]?
A. Yeah.
Q. And what were the reasons for these updates?
A. Because I had an interest in the case, I have a
financial interest in the case, I have – I’m entitled to a referral
fee. And so to the extent that I’m entitled to a referral fee, I’m
entitled to know something about what’s happening with the
case, not only for my information but also for purposes of my
disclosing whatever I might need to disclose if and when I get a
fee.
Q. What is the nature of that financial arrangement,
Your Honor?
A. It’s a very interesting one, I guess, because what
happened was when I referred the case to Paul Rosen, I told him
that he should sit down and work anything out with Roy that
they think is appropriate and fair for a referral fee. And,
ultimately, as I now just understand it from Mr. Lomas, he sent
a letter to Rosen to tell Rosen that if, in fact, they collect any
money, I should get a third referral of the net proceeds as a fee.
N.T., 9/6/07, at 21-22.
As recited above, this exchange clearly demonstrates that Judge
Rogers presided over the damages phase of these proceedings at a time
when he knew Judge Branca, a judicial colleague of his on the Montgomery
- 25 -
J-E03004-14
County bench, would directly and proportionally benefit from the size of any
increased award entered in the case. Upon these facts, I find our prior en
banc decision in Armor to be persuasive.
In Armor, under very similar circumstances to the instant case, this
Court mandated recusal of the entire Montgomery County trial court bench
(or a change of venue) where the spouse of one of the judges had a financial
interest in a child support case pending in Montgomery County. As is
claimed here, the record evinced no evidence of “bias, prejudice or
unfairness” on the part of the presiding judge, but this Court found the
appearance of impropriety to be an overriding concern:
[T]he judicial system must be kept, like Caesar’s wife,
above reproach. Under the circumstances here presented, the
appearance of appellee before the bench of Montgomery County,
involving as it must her remarriage to a member of that bench,
demands that such a case not be heard by any of the judge-
husband’s colleagues.
Armor, 398 A.2d at 174. Accordingly, this Court refused to approve a
procedure whereby any of the Montgomery County Common Pleas judges
could hear the matter. All of the judges of that county court would have the
same problem as the then-presiding judge. It was our conclusion that such
action would tend to weaken the public confidence in the court. Id.
Importantly, we also held that such action would, pursuant to Canon 1 of the
Code of Judicial Conduct, be contrary to the appearance of impropriety and
independence of the judiciary that we are charged with preserving. Id.
Likewise, we held that such action would violate the judge’s obligation to
- 26 -
J-E03004-14
promote public confidence in the integrity and impartiality of the judiciary
pursuant to Canon 2.34 Id.
Given the facts in Armor, I cannot distinguish its result from what
should occur in this case. The disqualifying feature in this case is Judge
Branca appearing before his colleague on the Montgomery County bench.
Every member of that bench would be placed in identical circumstances as
Judge Rogers to decide damages knowing that Judge Branca would benefit
directly and proportionally from the size of any award. The appearance of
impropriety here—perceived favoritism of a judicial colleague—reflects
adversely on a judge’s impartiality and the integrity of the judiciary. In fact,
I find a bench recusal here more compelling than in Armor, since the
perceived favoritism here is of a judicial colleague, as opposed to that of a
judicial family member, as was the case in Armor. In this regard, I also find
the trial judge’s focus on the conduct of Judge Branca to be irrelevant to the
decision on recusal. While Judge Branca’s prior representation of Appellee
may have formed the factual predicate for the recusal motion, the
appearance of impropriety to be reviewed had to focus upon whether Judge
Rogers, the trial judge, should sit in judgment of this case.
Armor illustrates again that a jurist’s recusal is sometimes necessary
to protect the integrity of the judicial system. This is a common theme for
courts facing this issue. “A tribunal is either fair or unfair. There is no need
34
That obligation is currently codified in Canon 1, Rule 1.2.
- 27 -
J-E03004-14
to find actual prejudice, but rather, the appearance of prejudice is sufficient
to warrant the grant of new proceedings. A trial judge should not only avoid
impropriety but must also avoid the appearance of impropriety.” McFall,
617 A.2d at 714. I believe the trial court erred by disregarding
consideration of the appearance of impropriety and focusing instead only on
whether Appellants had demonstrated actual prejudice or bias by Judge
Rogers.
Our Supreme Court Has Not Disapproved Armor’s Rationale
The trial court dismissed Armor believing that the Pennsylvania
Supreme Court rejected its “imputed appearance of impropriety standard” 35
when that Court reversed In re Brockerman, 480 A.2d 1199 (Pa. Super.
1984). Trial Court Opinion, 12/31/08, at 10.36 Appellee agrees, arguing
subsequent cases have ignored Armor and have held that evidence of bias,
35
It is not readily apparent how the trial court came to refer to the
appearance of impropriety standard as “imputed.” For present purposes, I
discern no difference in my reference to the standard from that of the trial
court.
36
The trial court wrote as follows:
No appearance of impropriety exists or is presumed to
exist simply because a Judge of the Court of Common Pleas of
Montgomery County has an interest in the underlying case. The
Judge is not even a party in the case. Armor is not precedential
authority and has been rejected by the Supreme Court.
Moreover, Armor fails to set forth and articulate the substantive
law and burden of proof to be applied on a motion for recusal.
Trial Court Opinion, 12/31/08, at 13.
- 28 -
J-E03004-14
prejudice or unfairness is necessary before the interest of a non-presiding
judge requires recusal of all judges of the same court. Based on a thorough
review of the law of recusal and the appearance of impropriety, I disagree.
In Brockerman, one party alleged the negligence of an attorney who,
by the time of the appeal, was a judge of the Superior Court. Id. at 1201
n.3. Pursuant to Armor, this Court certified the appeal to the Supreme
Court, believing that an appearance of impropriety precluded this Court from
deciding the appeal. Id. In a per curiam order, the Supreme Court
remanded to this Court without hearing the appeal. In re Brockerman,
473 A.2d 1016 (Pa. 1984). From this, the trial court inferred the Supreme
Court’s disapproval of Armor.
The trial court erred in its analysis of Armor as affected by
Brockerman for several reasons. First, and most important, per curiam
orders do not create binding precedent. Beneficial Consumer Discount
Co. v. Vukman, 77 A.3d 547, 549 n.3 (Pa. 2013). The Supreme Court’s
order in Brockerman is not authoritative on any substantive issue in that
case. The trial court erred in treating the per curiam order in Brockerman
as a rejection of Armor. I will not speculate as to the Supreme Court’s
reasons for refusing this Court’s certification of the appeal. I believe,
nonetheless, that the circumstances of Brockerman were very different
from those of Armor. Second, as evinced throughout this opinion, Armor
plainly is not the only case to apply the appearance of impropriety standard.
- 29 -
J-E03004-14
A rejection of Armor, even if one occurred, would not be a rejection of the
appearance of impropriety standard. It cannot seriously be contended that
our Supreme Court intended, through a per curiam order, to create a sea
change in this area of the law. Finally, as Appellants point out, the Supreme
Court, after Brockerman, also issued a per curiam order in Highway
Materials, Inc., v. Court of Common Pleas of Montgomery County, No.
156 MM 2010, 2010 Pa. LEXIS 2874 (Pa. Dec. 14, 2010), where it ordered a
full bench recusal of the trial court. This would seem at odds with the
Court’s action in Brockerman. It is not, however, for the same reason
Brockerman does not control here; neither case creates binding precedent.
The Timing of Appellants’ Recusal Motion
The Majority argues Appellants’ recusal motion was untimely as they
had two opportunities to seek recusal before they filed their motion; first
before the liability trial in January 2007, and second, on September 6, 2007
immediately after Judge Branca testified. I disagree.
The parties’ consent at the January 2007 pretrial conference to
proceed in front of Judge Rogers is of no moment for two reasons. First, the
result I advocate would not disturb the liability verdict from these bifurcated
proceedings. Second, the parties and the trial court were unaware of Judge
Branca’s financial interest in the outcome of this case until Judge Branca’s
- 30 -
J-E03004-14
testimony on the second and last day of the damages trial.37 Any analysis of
the timeliness of Appellee’s motion must therefore commence from that
date.
Citing In re Lokuta, 11 A.3d. 427 (Pa. 2011), Goodheart and Reilly,
the Majority states that it is well settled that “a party seeking recusal or
disqualification [is required] to raise the objection at the earliest possible
moment, or that party will suffer the consequence of being time barred.”
Majority Opinion at 21 (emphasis added by the Majority).38 While I do not
37
The Majority states that Appellants could have learned of Judge Branca’s
financial interest by taking his deposition or informally “just asking him.”
Majority Opinion at 22-23. The Majority fails to cite any information in
Appellants’ possession that would prompt such an inquiry. Appellee did not
reveal at the January 2007 pretrial conference that Judge Branca retained a
one-third contingent fee interest in the outcome of the case. Appellants’
Memorandum of Law in Support of the Motion for Recusal, 6/24/09, at 3.
38
The Majority argues the Appellants’ failure to request recusal immediately
after Judge Branca’s testimony was a waiver of any right to request recusal.
The record reveals that in his response to Appellants’ recusal motion,
Appellee’s only objection to the propriety of Appellants’ motion being before
the trial court was that Appellants waived any right to request recusal based
upon the January pretrial proceedings. Appellee’s Memorandum in
Opposition to Defendants’ Motion for Recusal, 10/24/07, at 13. At the
pretrial conference, Judge Rogers disclosed (1) Judge Branca’s prior
representation of Appellee, and (2) the absence of any discussion of this
cases between Judge Rogers and Judge Branca, whereupon all counsel
agreed Judge Rogers could preside. Id. The key point, however, is the
absence of any disclosure, prior to Judge Branca’s testimony during the
damages trial, of Judge Branca’s financial interest in the outcome of this
case. Nonetheless, the Majority’s reliance on waiver is permissible as this
Court may affirm the trial court on any valid basis, including waiver. See
Commonwealth v. Tunnell, 345 A.2d 611, 612 (Pa. 1975) (“While the
question of waiver has not been raised by any party to this litigation, this
Court may affirm an order if it is correct for any reason.”) (citing Gilbert v.
Korvette, 327 A.2d 94, 96 n.5 (Pa. 1974)).
- 31 -
J-E03004-14
quibble with this general proposition, none of these cases is particularly
helpful in addressing the timeliness issue raised by the Majority. In Lokuta,
Goodheart and Reilly, the recusal motions were all held to be untimely
because the moving litigants waited until the outcome of their cases before
filing their motions. In Lokuta, the appellant, after trial, sought recusal of
one of the judges of the Court of Judicial Discipline on the basis the judge
was ineligible to serve on the court. The appeallant raised this issue after
trial and had not included this argument in other pre-trial requests for
recusal. Lokuta, 11 A.3d at 437. Citing Goodheart, the Lokuta Court
held the appellant had waived this issue for not having raised it at the
earliest opportunity. Id.
In Goodheart, the appellants, after they lost on appeal to our
Supreme Court, in an application for reconsideration, moved for recusal of
two Justices they alleged would benefit by the claim asserted in that case.
In their opposition to the application, the appellees asserted that the
“[A]ppellant chose to remain silent, resorting to the unconscionable and
reprehensible tactic of laying in the grass, waiting until the decision and then
raising the disqualification issue only if they lost.” Goodheart, 565 A.2d at
763.39 Although this characterization was somewhat “florid,” our Supreme
39
The Majority’s use of this quotation from Goodheart inexplicably adds to
and truncates that court’s statement regarding the timeliness of a recusal
motion when the Majority states “Appellant[s] chose to remain
silent…waiting until the decision [was imminent], and then raising the
disqualification issue[.]” Majority Opinion at 23. In fact, as fully quoted
- 32 -
J-E03004-14
Court held that it could not say the characterization was either inaccurate or
unfair. Id. Since the facts suggesting disqualification were known when the
case was called for argument, the issue was deemed waived.
Similarly, in Reilly, counsel for the appellant, SEPTA, raised grounds
for recusal of the trial judge a) eight months after the trial judge gave
counsel five days to file a recusal motion, and b) in asserting numerous new
grounds for recusal while on appeal to this Court. Reilly, 489 A.2d at 1300.
The Supreme Court found that counsel waived any right to raise recusal by
not timely responding to the trial judge’s order and for raising new grounds
after trial was complete on appeal to this Court. Id. Although Lokuta,
Goodheart and Reilly all speak to the timeliness of a recusal motion, they
provide little guidance to the present situation where the grounds for recusal
were in fact raised before a verdict was entered by the trial court.
Judge Branca testified on September 6, 2007, the last day of the two-
day damages trial. Appellants filed their recusal motion on October 15,
2007. Appellants did not await the adverse damages verdict before filing
their motion. Appellants retained new counsel and sought Judge Rogers’
above, the statement from Goodheart provides “[A]ppellant chose to
remain silent…waiting until the decision and then raising the disqualification
issue only if they lost.” Id. (Emphasis added). By indicating the moving
party waited until the decision was “imminent” and omitting the words
“only if they lost”, the Majority impermissibly changes the import of this
statement in Goodheart. In fact, the Majority’s statement becomes
incongruent with the facts and result in that case where the recusal motion
was deemed waived because the appellants waited until the court’s decision
was issued before requesting recusal.
- 33 -
J-E03004-14
recusal prior to the trial court’s damage verdict. Thus, Appellants have not
violated the precedent prohibiting a recusal motion after an adverse result.
Appellants’ filed their motion during the thirty-day post-trial hiatus granted
by the trial court to permit Appellants to determine whether they needed a
forensic accountant to review attorneys’ fee invoices submitted by Appellee
at the beginning of the damages trial. Certainly, the surprise revelation that
Judge Branca retained a contingent fee interest in the outcome of this case
to be decided by his colleague, was a momentous matter that had to be
carefully considered by Appellants. The decision to seek recusal not only of
Judge Rogers, but of the entire Montgomery County bench, assuredly
required counseled judgment. This situation is entirely distinct from a
common evidentiary objection that requires immediate action to afford the
trial court an opportunity to correct a perceived error. Moreover, Appellants
filed the motion before any additional days of trial (as there were none) or
courtroom resources were devoted to this matter and before the trial court’s
decision on damages. Under these circumstances, I do not believe that
Appellants’ motion was untimely filed.
I also reject the Majority’s claim that the loss of the trial judge that
made the credibility decisions and observations of witnesses and other
evidence at trial will cause extreme prejudice to the Appellee. This
contention is belied by Appellee’s own concession that another trial judge
could decide the damages trial based upon a review of the existing record if
- 34 -
J-E03004-14
Judge Rogers found that he had to recuse himself from this case. Appellee’s
Memorandum in Opposition to Defendants’ Motion for Recusal, 10/24/07, at
1, 4, 14.40 Moreover, the Majority’s contention applies to any case where a
trial judge finds that he or she must recuse during the course of a
proceeding. Such is the price to be paid for the guarantee of a fair trial and
the preservation of the public’s trust in the judiciary’s administration of
justice.
Conclusion
In conclusion, I do not believe this Court can defer to Judge Rogers’
disposition of the recusal motion. Judge Rogers failed to account for the
appearance of impropriety inherent in this case. Judge Branca testified that
he has a one-third interest in the net proceeds of any award in this case,
and Judge Rogers, presiding over a bench trial, was responsible for
determining the amount of the award. Appellee notes that Judge Rogers
issued a verdict on liability before this issue arose, and the amount of
compensatory damages had been established through arbitration. This point
is well-taken, but at the damages phase in this action Judge Rogers had to
determine whether and to what extent, in his discretion, punitive damages
were appropriate. Judge Rogers’ award of more than $600,000.00 in
40
I acknowledge that after Judge Rogers vacated his recusal after
considering Appellee’s response, Appellee has maintained that Judge Rogers
did not abuse his discretion in refusing to recuse himself from this matter,
and now Appellee objects to another judge being assigned to hear this case.
- 35 -
J-E03004-14
punitive damages essentially may award his colleague on the Montgomery
County bench more than $200,000.00 on this item of damages alone. 41 In
Armor, we ordered the recusal of the entire Montgomery County bench
where a judge’s spouse had a direct financial interest in the outcome. I
believe the same result must obtain here, where a judge has a direct
financial interest in the outcome of a case being heard and decided by one of
his bench colleagues.
As demonstrated, an appearance of impropriety alone may properly
form the basis for recusal of a judge, or bench, from hearing a matter.
Judge Rogers improperly has dismissed consideration of the appearance of
impropriety in this case solely on the basis Appellants produced no evidence
of bias, unfairness, or prejudice on the part of Judge Rogers. To do so
disregards a critical gatekeeping function of our courts. As aptly observed in
Reilly,
Questions concerning the fairness, impartiality, or bias of
the trial court always affect the administration of justice and can
cloak the whole system of judicature with suspicion and distrust.
Because recusal requests call into question our ability to mediate
fairly, they raise important issues in which the public is
concerned. If our courts are perceived to be unfair and biased,
our future ability to adjudicate the public’s grievances and
wrongs will be threatened, because we all lose the one thing that
brings litigants into our halls of justice—their trust. Without the
people’s trust that our decisions are made without malice, ill-will,
41
The record is not clear as to what a referral fee of one-third on a net
recovery would include under the agreement between Judge Branca, the
client, and the referred firm. Suffice it to say, the increase in award of more
than eight times the arbitration award because of Judge Rogers’ decision on
damages is substantial.
- 36 -
J-E03004-14
bias, personal interest or motive for or against those submitting
to our jurisdiction, our whole system of judicature will crumble.
Id. at 1301. “Judicial integrity is, in consequence, a state interest of the
highest order.” Caperton 556 U.S. at 889 (citing Republican Party of
Minn., 536 U.S. at 793 (Kennedy, J., concurring)).
Finally, I take issue with the Majority’s contention that my analysis
would require recusal of an entire county bench when a judge has a financial
interest in a case pending in his or her home county, even in counties with
large benches such as Allegheny and Philadelphia. Majority Opinion, at 2-3
n.1. I believe the Majority’s claim is overstated and an unwarranted
exaggeration of the result I advocate. This case presents extraordinary
circumstances, and my analysis would create no blanket rule. The outcome
of a recusal motion in any future case involving judges of the same county
would still depend on the court’s assessment of the facts and circumstances
before it, in accordance with the law governing recusal motions. Instantly,
Judge Branca was a material witness in the damages phase of this trial, and
he had a significant financial interest in the outcome. Judge Rogers, a
colleague, had to assess Judge Branca’s credibility and determine whether to
issue a substantial award of punitive damages knowing that Judge Branca
would benefit proportionally based upon his contingent interest in the size of
the award entered by Judge Rogers. These are the unique facts of this case,
which I anticipate will not replicate themselves with any untoward frequency
in our courts. With that said, I wish also to emphasize, once again, that I do
- 37 -
J-E03004-14
not doubt Judge Rogers’ ability to arrive at a fair and impartial verdict. My
analysis rests on the appearance of impropriety, not actual impropriety.
As set forth at the outset, I join the Majority in affirming the liability
verdict, and respectfully dissent from the Majority’s conclusion that Judge
Rogers did not err in denying Appellant’s recusal motion.
Judges Bowes, Donohue, and Shogan join this Concurring and
Dissenting Opinion.
- 38 -