Barnes v. Westfield Group

CONCURRING OPINION BY

LAZARUS, J.

I fully join in the majority’s decision to reverse the trial court’s order granting Appellee summary judgment and to remand this case on the basis that a reasonable person could conclude that Appellant was vehicle-oriented when he was struck and injured by an unidentified driver. I write separately, however, to express my disapproval of the trial judge’s failure to disclose his wife’s employment with the defense law firm prior to the decision on the motion for summary judgment. Not only did the trial judge err on the law as applied to the facts of this case, but he failed in his professional responsibility as set forth in the Code of Judicial Conduct and, as a result, prejudiced the litigants.

Here, Judge Tereshko failed to disclose in open court to the parties that his wife had been an attorney at the law firm, Post & Schell, which represents the defendant insurance company and was so employed when this motion was filed. In his Memorandum of Law in Support of his Motion to Reconsider, Reverse and Recuse, Plaintiff states:

After receipt of this court’s order filed August 1, 2011 (order granting summary judgment), Plaintiffs counsel, in the course of determining to file a Notice of Appeal, learned that Judge Tereshko’s spouse is an attorney for the law firm representing Defendant.

Canon 3A(1) of the Code of Judicial Conduct provides in part:

Judges should be faithful to the law and maintain professional competence in it. They should be unswayed by partisan interests, public clamor, or fear of criticism.

Code of Judicial Conduct, Canon 3A(1). Moreover, Canon 3C of the Code provides in part: “(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person ... (iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” Code of Judicial Conduct, Canon 3C(l)(d)(iii).

Canon 3C, like the whole of the Code of Judicial Conduct, does not have the force of substantive law, but imposes standards of conduct upon the judiciary to be referred to by a judge in his self-assessment of whether he should volunteer to recuse from a matter pending before him. Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985), overruled on other grounds as stated in, Gallagher v. Harleysville Mut. Ins. *388Co., 421 Pa.Super. 192, 617 A.2d 790 (1992).

Judge Tereshko states that in addition to the recusal issue having no merit, it is also waived because plaintiff did not raise it until after summary judgment was granted. However, as the plaintiff correctly states, he did not become aware of the judge’s wife’s connection to defendant’s law firm until after judgment was entered and then only by happenstance. Had the judge at the outset of the matter properly disclosed the potential conflict, the parties would have been aware of it before entry of summary judgment and could have raised it in a timely fashion. Where the court has a duty to disclose, the failure of the party to raise the issue cannot constitute waiver.

Although the fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge under Canon 3C, see Note to Canon 3C(1) (emphasis added), it was Judge Ter-eshko’s affirmative duty to disclose the fact that his wife works as an attorney for the defense firm so that the parties could then investigate the matter and decide whether further action (i.e., a motion for recusal) was warranted. See Reilly, supra (when circumstances during trial raise questions of trial judge’s bias or impartiality, it is duty of party to allege by petition the bias, prejudice or unfairness necessitating recusal). Although recusal may not be mandated in cases such as this one, the objective standard is whether a reasonable minority of litigants appearing before the tribunal would believe that the judge could be fair and impartial. In fact, Canon 3C sets forth an objective standard regarding recusal: no matter how the judge himself feels, if his impartiality might reasonably be questioned, recusal is required. The question, therefore, is not how the judge appraises the situation but how a detached observer, the common law’s “reasonable man,” would appraise it.1 The party claiming that the judge should have re-cused himself is therefore under no obligation to show any actual prejudice — that is, that subjectively, or in fact, the judge was not impartial; it is enough to show that a reasonable observer might have questioned the judge’s impartiality.

Here, Judge Tereshko’s conclusion, based on his personal knowledge that his wife had no financial interest in the matter, is nothing short of post hoc reasoning and highlights the difficulty which results from a tribunal’s lack of disclosure. As a result of his actions, I believe that the following two significant ethical issues are raised: (1) doubt regarding the trial court’s transparency; and (2) the lack of recourse for the aggrieved party to test the conclusion of no partiality or bias by discovery, should he so desire.

Where a court has specific knowledge of a private matter or situation in which his or her impartiality may reasonably be questioned, it is his duty to disclose that information to the parties. Because Judge *389Tereshko’s actions prejudiced the parties, I would not only join the majority in noting my disapproval, but vacate the trial court’s entry of summary judgment and remand the matter to allow the plaintiff to create a record for a full hearing on his recusal motion.2

. In the recent decision, Miles v. Ryan, 697 F.3d 1090, 1091 (9th Cir.2012), the United States Court of Appeals for the Ninth Circuit reiterated the proper recusal standard for determining whether a judge’s "impartiality might be reasonably questioned” as follows:

[We] ask whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.... The "reasonable person” is not someone who is hypersensitive or unduly suspicious, but rather is a well-informed, thoughtful observer. The standard must not be so broadly construed that it becomes, ■ in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.

Id. at 1091 (citing United States v. Holland, 519 F.3d 909, 913 (9th Cir.2008)).

. Although I would be inclined to recommend assignment of a new trial judge to the case upon remand, I am well aware of our Supreme Court’s prohibition of such a procedure. See Commonwealth v. Whitmore, 590 Pa. 376, 912 A.2d 827 (2006); see also Reilly, supra at 1298 (Superior Court erred when it sua sponte directed that different trial judge take over a case for alleged bias in violation of Canon 3C; Supreme Court declared procedure "inappropriate and precludefd] its use.”).