The Superior Court has criticized a Philadelphia judge for failing to disclose that his spouse worked for a law firm representing a defendant in a motor vehicle insurance case.

One of the Superior Court judges on the panel hearing the appeal said in a concurring opinion that the trial judge prejudiced the plaintiff by the lack of disclosure.

The trial court judge was reversed on other grounds.

Philadelphia Court of Common Pleas Judge Allan L. Tereshko did not disclose that his wife, Heather Tereshko, was working in Post & Schell’s professional liability department at the time that Post & Schell was representing the defendant in Barnes v. Westfield Group, according to the concurring opinion.

Superior Court Judge Anne E. Lazarus, a former colleague of Allan Tereshko’s on the Philadelphia Court of Common Pleas, said in her published concurring opinion that “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.”

Tereshko was not necessarily disqualified to preside over the case because Heather Tereshko worked for Post & Schell, but Allan Tereshko did have an affirmative duty to disclose the fact of his wife’s employment, Lazarus opined.

And in a footnote in the unpublished majority opinion authored by Judge Jacqueline O. Shogan, Shogan, Lazarus and Senior Judge William H. Platt said, “We note our disapproval of the trial judge’s failure to disclose his relationship to appellee’s counsel and remind him of his obligation pursuant to Pennsylvania Code of Judicial Conduct Canon 3(c).”

That part of the canon states that a judge should disqualify himself or herself when his or her “impartiality might reasonably be questioned,” including that he or she knows that his or her spouse or minor child living at home “has a substantial financial interest in the subject matter in controversy or is a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding” or if the judge, his spouse, or a person “within the third degree of relationship to either of them” is “known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”

When Tereshko wrote his opinion as required under Pennsylvania Rule of Appellate Procedure 1925, the trial judge said that the official note to Canon 3C states the fact that a lawyer in a proceeding is affiliated with the same law firm as the firm that a “lawyer-relative” of the judge is affiliated does not by itself lead to the judge’s disqualification.

“Heather Tereshko is an associate attorney in the professional liability department of Post & Schell,” Tereshko wrote in his February 13 opinion. “She has never represented Westfield in any capacity, and attorneys Allan Molotsky, Joseph Fowler and Frances Lettieri do not work with Heather Tereshko in any capacity. Plaintiff has not alleged any facts tending to support an inference of bias or partiality in this litigation aside from Heather Tereshko’s employment with Post & Schell, which as the comment to Canon 3C of the Pennsylvania Code of Judicial Conduct makes clear, is insufficient to warrant recusal.”

Heather Tereshko is now a shareholder at Christie, Pabarue, Mortensen and Young.

The objective standard for recusal is if a reasonable observer might have questioned the judge’s impartiality, Lazarus said.

While Allan Tereshko noted in his opinion that the plaintiff did not seek his recusal until after summary judgment was granted and “plaintiff has thus waived the issue by not raising it until after a final disposition was entered,” Lazarus said that the plaintiff did not become aware of Heather Tereshko’s former employment at Post & Schell until after judgment was entered.

“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,” Lazarus said. “Where the court has a duty to disclose, the failure of the party to raise the issue cannot constitute waiver.”

Molotsky declined comment.

Plaintiffs attorney Joseph J. Aversa of Aversa & Linn said that he had spoken with his client, and his client is looking forward to having the merits of his claims heard.

Lynn Marks, executive director for Pennsylvanians for Modern Courts, said in an email that the case raises larger issues.

“The nondisclosure by Judge Tereshko raises the broader issue of nondisclosure and recusal across all courts. It shines a light on the need for Pennsylvania to take a hard look at the current rules. Clear rules help ensure that people who come before the courts have access to fair and impartial judges — the perception as well as reality,” Marks said. “We are glad that the Supreme Court has convened a committee chaired by Judge Lazarus to take a fresh look at the judicial canons and we look forward to seeing their recommendations as soon as possible.”

The Superior Court reversed Tereshko’s decision to grant summary judgment against plaintiff George Barnes and in favor of Westfield Group, doing business as Westfield Insurance Co.

Barnes, while working as a field service technician for McGovern Inc., was assigned to a Wawa convenience store to address a clogged pipe, and he was hit by an unidentified driver backing out of the parking space.

The question was if uninsured motorist benefits provided under McGovern’s motor vehicle insurance policy with Westfield would cover Barnes’ injuries because Barnes was “vehicle-oriented” to a cargo van towing a portable unit used in clearing drains.

Tereshko opined, as a matter of law, that Barnes was not vehicle-oriented, even though he was working in close proximity to his vehicle, because he did not intend to re-enter his vehicle until after he had completed his assignment.

The Superior Court said in its unpublished majority opinion that there are genuine issues of fact that preclude summary judgment, including that the portable unit, when attached to the van, could be a motor vehicle, that Barnes was in close proximity to the unit, and using a hose attached to the unit required him to be oriented to the vehicle.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the 15-page opinion in Barnes v. Westfield Group, PICS No. 12-2018, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •