“Even though judges are presumed to be impartial arbiters and conscientious of potential biases and appearance of such, some practitioners express reservations that seeking recusal would be taken personally by the judge to the detriment of the client and counsel,” Lomas v. Kravitz, 170 A.3d 380, 392 (Pa. 2017) (J. Saylor, dissent).
“… A request for recusal ‘should not be made lightly,’” (quoting Aetna Life Insurance v. Lavoie, 475 U.S. 813, 826-27 (1986). “A request for the disqualification of a trial judge is a most serious undertaking which should not be pursued absent thorough factual investigation and legal research,” see Lomas.
A request for recusal must be first made to the trial court and only thereafter upon appeal.
The standard of review for recusal is “abuse of discretion.” Unlike other jurisdictions, there is no statutory or rule-based procedure for recusal in Pennsylvania, see, 28 U.S.C. Sections 144 & 455.
“… The appearance of propriety standard is an independently sufficient basis for recusal.”
In some jurisdictions (not Pennsylvania nor federal), recusal orders may not be reconsidered by the issuing judge; “once a judge has disqualified himself, he or she may enter no further orders in the case other then performing ministerial duties necessary to transfer the case to another judge (except for narrow circumstances in which the disqualifying factor is removed, or there was a material error as to the existence of the recusal-inducing fact).”
A recusal motion must be made in the first instance.
In Lomas, the court determined whether the trial court erred by denying a motion to recuse the entire bench of the Montgomery County Court of Common Pleas. In considering, the Pennsylvania Supreme Court held the moving parties waived their recusal claim.
James Kravitz was the sole principal of several companies known as the Andorra Group. Roy Lomas is the proprietor of a floor covering company.
Andorra through its subsidiary, Cherrydale Construction Co. entered into a Nov. 10, 1994, contract requiring Lomas to supply and install floor covering in the homes being built by Cherrydale. Cherrydale breached that contract by failing to pay $30,913 to Lomas.
Pursuant to the contract, the parties submitted the dispute to binding arbitration.
The arbitrators entered a partial award in favor of Lomas finding that Cherrydale breached the contract and violated the Contractor and Subcontractor Payment Act, 73 P.S. Sections 501-516.
The arbitrators issued a final award to Lomas in the amount of $200,601.61—which included the $30,913 that Cherrydale owed Lomas for the unpaid work as well as costs and fees.
Importantly, then-attorney—now-Judge Thomas C. Branca—represented Lomas throughout the arbitration proceedings.
Since the entry of judgment in 1998, Kravitz prevented Lomas from collecting on the arbitration award—transferring all of the assets out of Cherrydale to himself and other entities under his control and through a “campaign of incessant use and abuse of our civil litigation processes.”
In March 2000, Lomas commenced an action under the Pennsylvania Uniform Fraudulent Transfers Act, 12 Pa. C.S. Sections 5101-5110. Then-attorney Branca filed a complaint on behalf of Lomas.
In November 2001, Branca was elected to serve as a judge of the Montgomery County Court of Common Pleas. Prior, Branca withdrew his appearance in the matter and referred the case to Lomas’ instant counsel.
The parties agreed to a bifurcated bench trial before the Judge Thomas P. Rogers of the Montgomery County Court of Common Pleas.
All parties conceded that before trial began they met with Rogers to discuss whether it was appropriate for him to preside over the trial in light of Branca’s previous representation of Lomas. The parties’ agreed to allow Rogers to decide the matter. However, it was maintained that during these pretrial proceedings they were unaware of Branca’s continued financial interest in the outcome of the case and continuing discussions with instant counsel.
On Sept. 6, 2007the second and last day of trial—Branca was Lomas’ first witness. The direct examination of Branca was ultimately brief and focused on the attorney fees for which Judge Branca billed Lomas when represented.
However, at the end of examination, Branca was questioned as to whether he had any communications with Lomas’ instant counsel (which was answered affirmatively).
Branca also admitted he had a financial interest in the case—a referral fee.
Lomas’ instant counsel’s associate was questioned further about Branca’s involvement in the case and financial interest.
Thirty-nine days after the last day of trial a scheduling conference took place on Oct. 15, 2007— a motion to recuse, transfer venue or assignment of out-of-county judge was presented.
Rogers first granted the recusal motion and then vacated it. Rogers rejected the claim that the issues surrounding Branca created an “appearance of impropriety.” Rogers pointed out that Branca is not a party to the case and believed he had decided the matter fairly.
After an interlocutory appeal and denied King’s Bench petition, an award in favor of Lomas was entered: $1,688,379.10 (including $602,000 in punitive damages).
An en banc Superior Court split regarding the denial of the recusal motion. The opinion in support of affirming the trial court’s judgment (OISA) determined that the recusal motion was waived by untimely presentation. See, In re Lokuta, 11 A.3d, 427, 437 (Pa. 2011); Goodheart v. Casey, 565 A.2d 757, 763 (Pa. 1989) (“A party seeking recusal or disqualification [is required] to raise the objection that the earliest possible moment, or that party will suffer the consequence of being time-barred.”).
The OISA opined that there were two (2) opportunities to seek recusal prior to the ultimate presentation: when first raised pretrial; and after Branca’s testimony.
The Supreme Court affirmed the trial court’s order ultimately denying recusal and the OISA.
The verdict stands.
This author respectfully finds the dissent more persuasive; that is, the failure of Pennsylvania’s codification and established procedures for seeking recusal combined with the necessary hesitancy in so doing gives rise that a judicial appearance of impropriety overwhelms any claim of waiver.
The Pennsylvania Supreme Court tacitly seemed to agree that the “infection” or “taint” of Judge Branca should have caused the recusal of the entire bench of Montgomery County (but for waiver). See, Williams v. Pennsylvania, 136 S. Ct. 1899 (2016).
Recusal is one of the hardest requests to make. As indicated by the Lomas dissent, attorneys necessarily must do a far-reaching investigation and presentation of their recusal motion— which may be met by adverse consequence to counsel and necessarily their client if recusal is denied. Thus, any mis-step in failing to present a recusal motion timely should yield to recusal being granted upon a finding of the objective appearance of impartiality tainting the trial court.
Lomas sends different messages: Though there may be adverse consequences and the motion to recuse should be presented carefully, if to be meritorious it must be presented at the first instance. While this holding by the majority is consistent with appellate preservation, recusal is different—the failure of codification and clear procedure, the perhaps “push-back,” and the uncertainty of the success if not initial merits of the recusal motion should endeavor considered delay being excused if there is a true appearance of impropriety on the record upon the recusal motion’s merits.
Lomas teaches to tread lightly but quickly.
Matthew B. Weisberg is the managing partner of Weisberg Law. He focuses his practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions.