[J-19-2017] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ROY H. LOMAS, SR., D/B/A ROY LOMAS : No. 87 MAP 2016 CARPET CONTRACTOR, : : Appeal from the Order of the Superior Appellee : Court dated December 21, 2015 at No. : 2391 EDA 2011 Affirming the Judgment : of the Court of Common Pleas of v. : Montgomery County, Civil Division, : entered on August 16, 2011 at No. : 2000-05929. JAMES B. KRAVITZ, CHERRYDALE : CONSTRUCTION CO., ANDORRA : ARGUED: March 8, 2017 SPRINGS DEVELOPMENT, INC., AND : KRAVMAR, INC., F/K/A EASTERN : DEVELOPMENT ENTERPRISES INC., : : Appellants :
OPINION
JUSTICE BAER DECIDED: September 28, 2017 In this appeal, the Court is asked to determine whether a trial court erred by
denying a motion to recuse the entire bench of the Court of Common Pleas of
Montgomery County. Specifically, we consider whether the moving parties waived their
recusal claim and, if not, whether the claim has merit. For the reasons set forth below,
we hold that the recusal issue was untimely presented to the trial court and, thus,
waived. Accordingly, we affirm the judgment of the Superior Court.
The relevant background underlying this matter, which now spans more than 25
years, can be summarized as follows. Appellant James B. Kravitz (“Kravitz”) was the
sole officer, director, and shareholder of several companies known as the Andorra Group, which included Appellants Cherrydale Construction Company (“Cherrydale”),
Andorra Springs Development, Incorporated (“Andorra Springs”), and Kravmar,
Incorporated, which was formally known as Eastern Development Enterprises,
Incorporated (“Eastern”).1 Kravitz also owned a piece of property known as the
Reserve at Lafayette Hill (“Reserve”). Andorra Springs was formed to develop
residential housing on sections of the Reserve. In 1993, Andorra Springs hired
Cherrydale as the general contractor to build the homes on the Reserve. Eastern
operated as the management and payroll company for the Andorra Group.
Appellee Roy H. Lomas, Sr., d/b/a Roy Lomas Carpet Contractor (“Lomas”) is the
proprietor of a floor covering company. On November 10, 1994, Cherrydale and Lomas
entered into a contract which required Lomas to supply and install floor covering in the
homes being built by Cherrydale. Soon thereafter, Cherrydale breached that contract
by failing to pay $30,913 to Lomas. In January of 1995, Lomas demanded that
Cherrydale submit Lomas’ claim to binding arbitration as mandated by the parties’
contract.
The parties arbitrated the matter, and a panel of arbitrators entered an interim
partial award in favor of Lomas, finding that Cherrydale breached the parties’ contract
and violated the Contractor and Subcontractor Payment Act, 73 P.S. §§ 501-516.
Following Kravitz’s unsuccessful attempt to have the interim award vacated, the
arbitrators issued a final award to Lomas in the amount of $200,601.61, which included
the $30,913 that Cherrydale owed to Lomas for his unpaid work, as well as costs and
fees. On September 10, 1998, judgment was entered against Cherrydale in the Court
of Common Pleas of Montgomery County. Important to the issue before this Court,
1 We will refer to Kravitz, Cherrydale, Andorra Springs, and Eastern collectively as “Appellants.”
[J-19-2017] - 2 then-Attorney, now-Judge Thomas C. Branca, Esquire, represented Lomas throughout
the arbitration proceedings.
Since the entry of judgment in 1998, Kravitz has actively prevented Lomas from
collecting his arbitration award by, inter alia, transferring all of the assets out of
Cherrydale to himself and other entities under his control and, as the Superior Court put
it, through “his campaign of incessant use and abuse of our civil litigation processes.” 2
Lomas v. Kravitz, 130 A.3d 107, 112 (Pa. Super. 2015). In March of 2000, Lomas
commenced the instant action against Appellants. Then-Attorney Branca filed the
complaint on behalf of Lomas. Lomas sought to pierce the corporate veil and to hold
Kravitz personally liable for the debt Cherrydale owed to Lomas. Lomas also presented
claims of fraud and fraudulent transfers under the Pennsylvania Uniform Fraudulent
Transfers Act, 12 Pa.C.S. §§ 5101-5110. In terms of relief, Lomas asked that judgment
be entered against Appellants in the amount of $200,601.61. He also requested
interest, costs, punitive damages, and attorneys’ fees.
In November of 2001, then-Attorney Branca was elected to serve as a judge on
the Court of Common Pleas of Montgomery County. Prior to taking the bench, then-
Judge-Elect Branca withdrew his appearance in the matter and referred the case to
Lomas’ current counsel from the law firm of Spector, Gadon, & Rosen (“SGR”). After
several years of tedious litigation, the parties agreed to a bifurcated bench trial. The
presiding judge was the Honorable Thomas P. Rogers of the Court of Common Pleas of
Montgomery County. Based upon the parties’ agreement, Judge Rogers first was
tasked with determining whether Appellants were liable to Lomas. The second phase of
2 The details of Kravitz’s numerous actions which have thwarted Lomas from collecting his arbitration award are irrelevant to the disposition of the issues before the Court; thus, we will not delve into all of those details.
[J-19-2017] - 3 trial, if necessary, would require Judge Rogers to examine whether Appellants should
be required to pay attorneys’ fees and punitive damages to Lomas.
Appellants concede that, before trial began, the parties met with Judge Rogers to
discuss whether it was appropriate for him to preside over the trial in light of now-Judge
Branca’s previous representation of Lomas. Appellants’ Brief at 10. Appellants also
concede that the parties agreed to allow Judge Rogers to decide the matter; however,
as we discuss infra, Appellants maintain that, during these pre-trial proceedings, they
were unaware of Judge Branca’s continued financial interest in the outcome of the case
and his continuing discussions with counsel from SGR regarding at least certain
aspects of this case after he took the bench. Id. at 10-11.
The three-day liability trial was held from January 16, 2007, through January 18,
2007. After that trial, the parties submitted proposed findings of fact and conclusions of
law. In July of 2007, Judge Rogers entered an order declaring that Appellants are liable
to Lomas. Accordingly, a bench trial on attorneys’ fees and punitive damages was
scheduled to begin in September of 2007. The first day of the trial on attorneys’ fees
and punitive damages occurred on September 4, 2007. The second and last day of the
trial was September 6, 2007. Judge Branca was Lomas’ first witness to testify on
September 6th.
The direct examination of Judge Branca was relatively brief and focused on the
attorneys’ fees for which Judge Branca billed Lomas when he represented Lomas in this
matter. N.T., 9/6/2007, at 3-14. Toward the end of the direct examination, counsel for
Lomas asked Judge Branca whether he has had any communications with Lomas’
current counsel, the law firm of SGR. N.T., 9/6/2007, at 13. Judge Branca answered
the question in the affirmative and explained that the communications ordinarily involved
the location of things like documents. Id. at 13-14. According to Judge Branca, the
communications between him and SGR were informative to him, “not the other way
[J-19-2017] - 4 around.” Id. at 14. Judge Branca testified that, because he referred the case to the
firm, SGR periodically updated him on the status of the case. The judge further testified
that he had not had any communications with Judge Rogers concerning the case. Id.
Appellants’ cross examination of the judge was more extensive. Id. at 15-49.
Appellants’ counsel comprehensively questioned Judge Branca regarding the
communications that he had with SGR after the judge withdrew his appearance and
took the bench. In addition, when counsel asked Judge Branca why SGR provided him
with updates, the judge testified as follows:
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 for purposes of my disclosing whatever I might need to disclose if and when I get a fee. Id. at 22. In terms of the amount of a fee to which he is entitled, Judge Branca
explained that he “should get a third referral fee of the net proceeds as a fee.” Id.
Judge Branca maintained that he had not discussed the case with anyone other than
Lomas and SGR. Id. at 23.
After several more questions and answers, counsel for Lomas objected,
contending that the line of questioning was irrelevant given that the sole issue to which
Judge Branca could testify was the amount of attorneys’ fees that he billed Lomas. Id.
at 25. A lengthy discussion then took place, during which counsel for Lomas suggested
that Appellants’ line of questioning was “a red herring” and that Appellants simply were
attempting to impugn the reputations of SGR, Judge Branca, and the trial court. Id. at
27. Lomas’ counsel also suggested that Appellants were attempting to divert attention
away from the fact that Kravitz had fraudulently transferred millions of dollars to defraud
his creditors. Id.
[J-19-2017] - 5 In due course, Lomas’ objection was overruled, and Appellants’ counsel
continued to question Judge Branca about his involvement with this case after he took
the bench. After Appellants completed their cross examination of Judge Branca, Lomas
called two more witnesses, Kravitz and Raymond F. Dovell, a certified public accountant
hired by Lomas to provide a forensic review of Kravitz and his entities.
After Lomas rested regarding attorneys’ fees and punitive damages, Appellants
first presented the testimony of Monica Mathews Reynolds (“Reynolds”), an associate
attorney for SGR, Lomas’ counsel, as if on cross. Appellants questioned her about,
inter alia, Judge Branca’s involvement in the case. When Lomas’ counsel again
objected, Judge Rogers asked Appellants’ counsel to explain the relevance of the line of
questioning. Id. at 104. Appellants’ counsel stated, “Judge, I think if Judge Branca had
any involvement in this case as to any participation in this case, I have some suspicion
or am suspect in some way that this case can go forward. I may have to raise that.
That’s why I’m asking.” Id. Judge Rogers allowed counsel to continue to question
Reynolds. Thereafter, Appellants called Kravitz to testify in his own defense.
After the parties presented all of their evidence, Appellants’ counsel requested
that the record remain open to allow Appellants to have a forensic accountant examine
invoices Lomas recently provided to Appellants in support of his claim for attorneys’
fees. Id. at 120. Appellants’ counsel assured Judge Rogers that Appellants would
immediately notify the judge if they decided not to have a forensic accountant review the
invoices or if such a review proved to be fruitless. Id. at 122. Over Lomas’ objection,
Judge Rogers granted Appellants’ request, permitting them 30 days to have a forensic
accountant examine the pertinent records. Id. at 123. Thirty days passed, and
Appellants did not file anything. Further, contrary to their counsel’s assurances,
Appellants did not notify Judge Rogers of whether they decided not to have a forensic
accountant review the invoices.
[J-19-2017] - 6 A scheduling conference took place on October 15, 2007, i.e., 39 days after the
last day of trial and nine days after the 30-day period expired for Appellants to explore
obtaining a forensic accountant. Appellants appeared at the hearing with new counsel
and presented Judge Rogers with a “Motion for Recusal, Transfer of Venue, or
Assignment to Out-of-County Judge” (“Recusal Motion”). According to Appellants’
Recusal Motion, on August 31, 2007, i.e., just prior to the commencement of trial on
attorneys’ fees and punitive damages, Lomas produced for the first time redacted and
unredacted billing entries for SGR. Recusal Motion at ¶ 8. On September 4, 2007,
Appellants received unredacted copies of the billing entries, which indicated that
attorneys from SGR had consulted with Judge Branca approximately 20 times since
2002.3 Id. at ¶ 9. Appellants noted that, during his trial testimony, Judge Branca
confirmed his continued involvement in the case and that he has a financial interest in
the outcome of the matter. Id. at ¶ 10.
Although Appellants acknowledged that they were unaware of any bias or
prejudice against them on the part of Judge Rogers or any other judge of the Court of
Common Pleas of Montgomery County, Appellants maintained that Judge Branca’s
continued involvement and financial interest in the case created an “appearance of
impropriety” prohibited by the Code of Judicial Conduct. Id. at ¶¶ 11-12. Appellants,
therefore, requested that Judge Rogers enter an order recusing the entire bench of
Montgomery County and either assigning the case to an out-of-county judge for
purposes of a new trial on both liability and damages or transferring the case to another
county for the same purposes, which effectively would render void all of the proceedings
before Judge Rogers.
3 Judge Branca was sworn-in during early January of 2002.
[J-19-2017] - 7 On October 18, 2007, Judge Rogers entered an order granting the Recusal
Motion. However, in a motion filed on October 22, 2007, Lomas argued that the court
should stay the October 18th order and allow him to respond to the Recusal Motion.
According to Lomas’ motion, Judge Rogers had informed the parties that Lomas would
have until October 24, 2007, to respond the Recusal Motion; yet, the judge granted the
Recusal Motion on October 18th, before Lomas could file his response. Motion for a
Stay of the October 18, 2007 Order, 10/22/2007, at ¶¶ 1-4. Lomas then filed his
response to the Recusal Motion on October 24, 2007, and Judge Rogers held a hearing
regarding the issue on November 9, 2007.
Judge Rogers did not act on the recusal issue again until December 31, 2008, at
which time he entered an order vacating the October 18, 2007, order. On the same
day, Judge Rogers issued a separate order denying the Recusal Motion and entering
partial judgment as to the liability phase of trial. The court awarded Lomas $200,601.61
in compensatory damages, plus statutory interest.
Judge Rogers authored a memorandum in support of his orders. 4 In that
memorandum, the judge observed that Appellants sought an order assigning the case
to an out-of-county judge or transferring the case to another county for trial on both
liability and damages, despite the fact that, in his view, the case already had been fairly
tried on its merits. Trial Court Memorandum, 12/31/2008, at 11. The judge highlighted
that, when Appellants presented their Recusal Motion, the bifurcated trial was complete
as to liability and all damage claims, and the court had already ruled on liability, which
necessarily left intact the arbitrators’ award of $200,601.61. Thus, the only remaining
4 While we will briefly summarize this memorandum, given this Court’s ultimate determination that Appellants waived the recusal issue, we will not provide a detailed analysis of the legal reasoning employed by Judge Rogers in denying the Recusal Motion.
[J-19-2017] - 8 matter to be determined was whether Lomas was entitled to attorneys’ fees and punitive
damages. Id.
Judge Rogers rejected Appellants’ claim that the issues surrounding Judge
Branca created an “appearance of impropriety,” reasoning that the claim failed to
provide the court with a legal basis upon which it could conclude that Appellants “cannot
receive, have not received or will not continue to receive a fair and impartial trial in
Montgomery County.” Id. Judge Rogers pointed out that Judge Branca is not a party
to the case, and he opined that “[n]o 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.” Id. at 13. Judge Rogers ended his
memorandum by explaining that the record does not demonstrate prejudice or bias
against Appellants; thus, the judge refused to allow Appellants to question the court’s
verdict.5 Id.
Appellants attempted to appeal the matter at that point; however, the Superior
Court quashed the appeal. Appellants then petitioned this Court, asking for a stay of
the trial court proceedings and for the Court to exercise its King’s Bench power to
assume jurisdiction over the matter. Appellants also filed their motion for a stay in the
Superior Court. The Superior Court denied the motion for a stay, and this Court denied
the motion for a stay and the request that the Court exercise its King’s Bench authority.
On April 29, 2011, Judge Rogers issued separate findings of fact and
conclusions of law pertaining to the trial on liability and compensatory damages and the
5 In his opinion filed pursuant to Pa.R.A.P. 1925(a), Judge Rogers noted his belief that Appellants waived the recusal issue by untimely raising it. See Trial Court Opinion, 1/15/2013, at 22 n.4 (“Moreover, in light of the fact that Counsel failed to object to the undersigned’s continued involvement on September 6, 2007, and waited until October 15, 2007, to present their motion, the [c]ourt opines that the issue is waived for all intents and purposes.”).
[J-19-2017] - 9 separate (bifurcated) trial on attorneys’ fees and punitive damages. The court awarded
Lomas a total of $1,688,379.10, which included nearly $602,000 in punitive damages.
Appellants filed post-trial motions, which the trial court denied. On August 16, 2011,
judgment was entered in favor of Lomas and against Appellants.
Appellants appealed to the Superior Court, raising a number of issues regarding
the liability verdict and the assessment of attorneys’ fees and punitive damages. The
court eventually heard the matter en banc.6 The court unanimously affirmed the liability
verdict. However, the court evenly split regarding the propriety of the trial court’s
assessment of attorneys’ fees and punitive damages.7 The split centered on whether
Judge Rogers erred by denying Appellants’ Recusal Motion.
The opinion in support of affirming the trial court’s judgment (“OISA”) determined
that Appellants waived the recusal issue by untimely presenting it to Judge Rogers. In
reaching this determination, the OISA quoted and relied upon this Court’s decisions in
In re Lokuta, 11 A.3d 427, 437 (Pa. 2011), and Goodheart v. Casey, 565 A.2d 757, 763
(Pa. 1989), for the proposition 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.”8 Lomas, 130 A.3d at 120 (emphasis in
original).
6 Due to Judge Allen’s non-participation in the consideration of the appeal, the en banc panel consisted of eight judges. 7 Because the court was equally divided in this manner, it necessarily affirmed the trial court’s judgment. See Creamer v. Twelve Common Pleas Judges, 281 A.2d 57, 58 (Pa. 1971) (explaining that “when an appellate court is equally divided, the judgment, order or decree of the court below will be affirmed”). 8 Later in its opinion, the OISA also supported this proposition by referring to the Superior Court’s opinion in Reilly by Reilly v. SEPTA, 479 A.2d 973 (Pa. Super. 1984), and this Court’s subsequent opinion in that matter, Reilly by Reilly v. SEPTA, 489 A.2d 1291 (Pa. 1985). Lomas, 147 A.3d at 121-22.
[J-19-2017] - 10 The OISA opined that Appellants had two opportunities to seek recusal prior to
when they filed their Recusal Motion. The OISA stated that Appellants first could have
presented their Recusal Motion before the liability trial in January of 2007 when Judge
Rogers assured the parties that he could remain fair and impartial despite Judge
Branca’s previous representation of Lomas. According to the OISA, the second
opportunity to present the recusal claim came on September 6, 2007, immediately after
Judge Branca’s testimony regarding his involvement and personal interest in the case.
Id. Instead of seeking recusal of the entire bench of Montgomery County immediately
after Judge Branca’s testimony (or earlier), the OISA observed, Appellants allowed the
damages trial to proceed to finality and “it was not until Appellants requested a post-
hearing thirty-day review of the attorneys’ bills, and the thirty-day period had passed
without Appellants filing any relevant documents, and not until the record had closed,
that newly-retained counsel appeared and filed the recusal motion.” Id. at 121. The
OISA concluded that Appellants untimely presented the Recusal Motion and, thus,
waived their recusal issue.9
The opinion in support of reversing the trial court’s judgment (“OISR”) believed
that Judge Rogers erred by denying the Recusal Motion. The OISR began by providing
a history of the “appearance of impropriety” standard for judicial recusal and then
explaining parties’ substantive right to request the recusal of a jurist. Id. at 133-38. The
OISR also discussed the application of the “appearance of impropriety” standard to this
matter and ultimately concluded that this standard required Judge Rogers to grant, in
part, Appellants’ Recusal Motion. According to the OISR, Judge Branca’s financial
interest in the case created an “appearance of impropriety,” which necessitated that
9 The OISA offered a gratuitous alternative conclusion that the recusal issue lacks merit. Lomas, 130 A.3d at 122-25.
[J-19-2017] - 11 Appellants receive a new trial, in front of an out-of-county judge, on attorneys’ fees and
punitive damages.
In addition, the OISR disagreed with the OISA’s conclusion that Appellants
waived their recusal issue by untimely presenting it to Judge Rogers. Id. at 145-47.
The OISR took the position that Appellants could not have raised the issue any earlier
than September 6, 2007, when Judge Branca testified regarding his financial interest in
the outcome of the case. Id. at 145. Regarding the law in this area, the OISR agreed
with the general proposition that a party must seek recusal at the earliest possible
moment to avoid waiving the issue; however, the OISR distinguished this case from
those relied upon by the Majority for this general proposition. Id. at 145-47.
In this regard, the OISR opined that, in In re Lokuta, Goodheart, and Reilly, the
recusal motions were untimely filed because the moving parties presented their motions
after an adverse verdict had been entered against them. Here, however, according to
the OISR, Appellants filed their Recusal Motion before Judge Rogers entered a verdict.
Thus, in the OISR’s view, these cases do not support a conclusion that Appellants
waived their recusal issue by untimely presenting it. Id.
In closing on this discussion, the OISR inaccurately stated that Appellants filed
their Recusal Motion during the 30-day post-trial period in which Judge Rogers
permitted the record to remain open to allow Appellants to determine whether they
needed the services of a forensic account. Id. at 146. The OISR suggested that a
decision to seek the recusal of an entire county bench requires counseled judgment and
is distinct from common evidentiary objections that require immediate action to allow the
trial court to correct an alleged error. Id. at 146-47. For these reasons, the OISR would
have mandated that Appellants receive a new trial on attorneys’ fees and punitive
damages, to be presided over by an out-of-county judge.
[J-19-2017] - 12 Appellants filed a petition for allowance of appeal, which this Court granted,
limited to the following issues:
(1) Whether, as a matter of law, the Montgomery County Court of Common Pleas should have been recused from presiding over the non- jury trial due to an appearance of impropriety arising from the ongoing participation and financial interest in the litigation by a sitting member of that Court?
(2) Whether, as a matter of law, an appearance of impropriety was created when a sitting member of the Montgomery County Bench personally participated in the litigation? Lomas v. Kravitz, 147 A.3d 517 (Pa. 2016).
In their brief to this Court, Appellants devote a majority of their argument to the
merits of the recusal issue, i.e., whether Judge Branca’s financial interest and continued
involvement in this case constituted an “appearance of impropriety” such that the entire
bench of Montgomery County should have been recused from considering the matter.
Appellants’ Brief at 23-38. Regarding the timing of their Recusal Motion, Appellants
contend that they first learned of the full extent of Judge Branca’s continued
involvement in this matter on September 6, 2007; therefore, Appellants argue, they
could not have presented their Recusal Motion prior to that date.10 Appellants’ Brief at
39-41.
10 Lomas maintains that Appellants failed to present any discrete issue regarding waiver in their petition for allowance of appeal (“PAA”). Lomas’ Brief at 18-19. Lomas suggests that, due to this oversight, Appellants essentially have waived review by this Court of the OISA’s determination that they untimely presented and, therefore, waived the recusal issue. In short, Lomas insists that this Court cannot address waiver because that issue is outside of the scope of the order granting allowance of appeal. Id. at 18-21. We agree with Lomas that none of the questions Appellants presented in their PAA directly implicate the issue of whether Appellants timely presented the recusal issue. PAA at 5-6. However, Appellants provided a thorough argument regarding the timing of their Recusal Motion in their PAA, which we granted as to the merits issues set forth above. Id. at 27-31. Moreover, the OISA found the recusal request to be untimely and (continued…)
[J-19-2017] - 13 Appellants also adopt the OISR’s theory that this case is distinguishable from In
re Lokuta, Goodheart, and Reilly, where the moving parties allegedly waited to seek
recusal until after the adverse outcomes of their litigation were determined. Id. at 42-43.
Appellants highlight that they filed their Recusal Motion years before Judge Rogers
entered a final verdict in this matter. In Appellants’ view, they quickly moved for recusal
after Judge Branca’s revealing testimony; thus, Appellants take the position that they
did not waive the recusal issue. Id.
Lomas takes the position that, in cases involving an alleged “appearance of
impropriety,” waiver is particularly applicable when all of the underlying facts regarding
the allegation of impropriety have been made public. Lomas’ Brief at 19. According to
Lomas, when a litigant is aware of all of these facts but fails to object timely, a finding of
waiver is appropriate. Id. (citing Goodheart, supra). Lomas points out that, here, all of
the facts underlying Appellants’ recusal issue were known to Appellants as of when
Judge Branca testified. Yet, Appellants waited 39 days to present their Recusal Motion.
For these reasons, Lomas insists that Appellants untimely presented their Recusal
Motion and, thus, waived the recusal issue.
This Court reviews the denial of a motion to recuse for an abuse of discretion.
See In re Lokuta, 11 A.3d at 435 (explaining that an “appellate court presumes judges
are fair and competent, and reviews the denial of a recusal motion for an abuse of
(…continued) waived. Thus, in order for this Court to address the questions for which allocatur was granted, we must consider the timeliness of the Recusal Motion as a threshold issue. We further observe that the parties have briefed for this Court their positions concerning the timing of the motion and whether the alleged late filing resulted in waiver. Finally, because we ultimately conclude that the lower court correctly resolved the issue and because “this Court has the ability to affirm a valid judgment or order for any reason appearing as of record,” Commonwealth v. Flanagan, 854 A.2d 489, 503 (Pa. 2004) (footnote omitted), we can address this question.
[J-19-2017] - 14 discretion”). “An abuse of discretion is not merely an error of judgment, but occurs only
where the law is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the
evidence or the record.” Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1284
(Pa. 2006).
From this Court’s perspective, the law in this area is well settled: “The case law
in this Commonwealth is clear and of long standing; it requires a party seeking recusal
or disqualification to raise the objection at the earliest possible moment, or that party will
suffer the consequence of being time barred.” Goodheart, 565 A.2d at 763 (citing Reilly
by Reilly v. SEPTA, 489 A.2d 1291 (Pa. 1985)). Despite this clear pronouncement of
the law, Appellants contend that this legal proposition applies only if a litigant seeks to
recuse a jurist after a final adverse verdict, despite the litigant possessing all of the
necessary facts to seek recusal pre-verdict. See Appellants’ Brief at 42-43 (“The Motion
for Recusal was unquestionably not a ‘hedge against a losing case’ [] and the timing of
this case is clearly distinguishable from the cases on which the en banc Majority relies,
where litigants waited to move for recusal until after knowing the outcome.”) (citing In re
Lokuta, Goodheart, and Reilly, supra). Appellants’ contention is not supported by the
general statement of the law, as provided above, or by the relevant case law.
By way of example, in Reilly, counsel for Southeastern Pennsylvania
Transportation Authority (“SEPTA”) made an oral pretrial request that the trial judge
recuse himself from the case. Reilly, 489 A.2d at 1296. Counsel alleged that the judge
held a personal bias against him based upon remarks the judge made about counsel in
a previous case. The trial judge invited counsel to file a written motion for recusal within
five days of his oral request. Id. Counsel, however, filed his recusal motion eight
months later, which fell on the eve of trial. Id. at 1296-97. The judge denied the motion.
Id. at 1297.
[J-19-2017] - 15 SEPTA renewed its recusal motion post-trial. SEPTA based its post-trial motion
to recuse on the trial judge’s alleged prior hostility toward its counsel and on the
additional ground that opposing counsel previously represented the trial judge as part of
a class of plaintiffs who sought increased compensation for Pennsylvania trial court
judges. An en banc panel of the trial court denied the motion as meritless. On appeal,
SEPTA renewed their recusal issue in the Superior Court and added additional grounds
in support thereof - grounds that SEPTA raised for the time on appeal. Id.
This Court eventually considered the matter. Importantly, the Court expressly
stated, “In the case sub judice, SEPTA’s recusal motions being raised in both pre and
post-trial fashion require us to decide their timeliness.” Id. at 1300. The Court first
concluded that SEPTA waived its pre-trial recusal issue. We observed that SEPTA
offered no excuse for its eight-month delay in presenting the issue. We further
observed that SEPTA, in fact, could not excuse its delay because SEPTA had actual
knowledge of the facts that formed the basis of its motion to recuse.11 Id.
The Court then examined the timeliness of SEPTA’s post-trial recusal motions.
As to these motions, the Court began by stating, “Once the trial is completed with the
entry of a verdict, a party is deemed to have waived his right to have a judge
disqualified, and if he has waived that issue, he cannot be heard to complain following
an unfavorable result.” Id. (citing Commonwealth v. Corbin, 291 A.2d 307 (Pa. 1972)).
The Court explained that, to preserve these recusal issues for appeal, SEPTA was
required to make timely, specific objections at trial and raise the issues in a post-trial
motion. Id. In other words, recusal issues that are not presented at the earliest
11 After the Court found that SEPTA had waived its pre-trial recusal issue, the Court found that the trial judge’s assurances of impartiality were sufficient to justify his dismissal of the motion. Reilly, 489 A.2d at 1300.
[J-19-2017] - 16 possible moment but, instead, are raised for the first time post-trial, are time-barred and
waived.
Thus, the law is clear. In this Commonwealth, a party must seek recusal of a
jurist at the earliest possible moment, i.e., when the party knows of the facts that form
the basis for a motion to recuse. If the party fails to present a motion to recuse at that
time, then the party’s recusal issue is time-barred and waived. See Reilly, supra; see
also Goodheart, 565 A.2d at 763 (“Where the asserted impediment [to a jurist deciding
a case] is known to the party, and that party fails to promptly direct the attention of the
jurist to that fact, the objection is waived and the party may not subsequently offer the
objection as a basis for invalidating the judgment.”); id. at 764 (“In the case, sub judice,
the facts suggesting the disqualification [of Justices of this Court] were known or should
have been known when the case was called for argument and are therefore waived.
This is so because the jurist, under such circumstances, may properly assume that the
lack of objection by the litigants reflects the appropriateness of his or her participation.”);
In re Lokuta, 11 A.3d at 437 (“Appellant did not mention Judge Sprague’s age in her
pre-trial recusal motions, nor did she move to disqualify Judges Musmanno or Bucci
before or during trial. She provides no reason for not raising either of these issues
sooner. Because appellant failed to raise these issues at the earliest possible
opportunity, they are waived.”).12
12 We reject the position of the OISR, which Appellants adopted in this appeal, that a litigant waives a recusal issue only if he raises it following an adverse verdict. Instead, when a litigant is aware of the facts underlying a recusal issue pre-verdict but waits to present the issue until after an adverse verdict, pursuant to the reasoning underlying Reilly, supra, the litigant waives the issue on two grounds: the failure to present the issue at the earliest possible moment, and the failure to preserve the issue at trial by lodging a timely, specific objection regarding recusal. We nonetheless believe it is worth noting that, when Appellants filed their Recusal Motion, Judge Rogers already had entered an adverse verdict against them regarding liability, which necessarily involved a negative decision concerning compensatory (continued…)
[J-19-2017] - 17 As to the matter currently before the Court, we agree with Appellants that they
did not know of all of the facts underlying their recusal issue until Judge Branca testified
on September 6, 2007. However, Appellants clearly were aware of all of the facts
underlying the recusal issue on that date. Indeed, all of the facts Appellants averred in
in their Recusal Motion, in support of their belief that recusal was appropriate, were
disclosed on or before September 6, 2007, during the judge’s testimony.
Moreover, as we mentioned above, during Reynolds’ September 6, 2007, trial
testimony, Judge Rogers asked Appellants’ counsel to explain why he was questioning
Reynolds about Judge Branca’s involvement in this case. N.T., 9/6/2007, at 104.
Appellants’ counsel responded, “Judge, I think if Judge Branca had any involvement in
this case as to any participation in this case, I have some suspicion or am suspect in
some way that this case can go forward. I may have to raise that. That’s why I’m
asking.” Id. Thus, despite Appellants’ knowledge of all of the facts underlying their
eventual recusal issue after Judge Branca testified on September 6th and their
September 6th announcement that they may need to raise an issue regarding Judge
Branca’s participation in this matter, without even seeking recusal, Appellants allowed:
additional witnesses to testify at the trial on damages; the evidentiary portion of that trial
to conclude; the 30-day time period, which they requested to allow for forensic review of
records, to expire; and an additional nine days to pass following the expiration of that
30-day time period. It was not until after all of these events that Appellants finally filed a
Recusal Motion on October 15, 2007.
(…continued) damages. Moreover, when Appellants presented their Recusal Motion, for all intents and purposes, the die was cast as to Lomas’ eligibility to receive attorneys’ fees and punitive damages. Thus, the OISR’s attempt at distinguishing the relevant cases from this matter appears to be invalid.
[J-19-2017] - 18 We need not decide the exact moment in which Appellants were required to
present the recusal issue to avoid waiver. However, it is obvious that October 15, 2007,
was not “the earliest possible moment” that Appellants could have raised their
objections regarding recusal, as all of the facts underlying the recusal issue were known
to Appellants after Judge Branca testified on September 6, 2007. Accordingly, we hold
that Appellants failed to file the Recusal Motion in a timely manner and, therefore,
waived the issue.13, 14 We, thus, affirm the judgment of the Superior Court.
Justices Todd, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a dissenting opinion. Justices Donohue and Wecht did not participate in the consideration or decision of this case.
13 This conclusion obviates the need for the Court to examine whether the recusal issue has merit, as any such discussion would be pure dicta. 14 In his Dissenting Opinion, Chief Justice Saylor states that he would adopt a four- factor test, utilized by some federal courts, to assess whether a party timely sought recusal. The Dissent then retroactively applies that test to the facts of this case, concluding that Appellants timely filed their Recusal Motion. Respectfully, we are circumspect to adopt and apply a new test in this case, particularly when the parties offer no advocacy in this regard. In our view, this matter requires the Court to determine whether Appellants waived their recusal claim pursuant to current Pennsylvania precedent, and we answer that question in the affirmative.
[J-19-2017] - 19