The Pennsylvania Supreme Court declined to address whether a judge should have backed away from a now 20-year-old case that one of his colleagues stood to profit from. The justices did say, however, that recusal motions must be filed as early as possible.
The ruling came in the case of Lomas v. Kravitz, which deals with a motion calling for Montgomery County Court of Common Pleas Judge Thomas P. Rogers to recuse from a case in which one of his colleagues on the bench, Judge Thomas C. Branca, was entitled to receive a referral fee.
Branca previously represented the plaintiff in the case, contractor Roy Lomas, when Branca was still in private practice. Lomas had sued housing developer James Kravitz for payment nearly 20 years ago. When Branca was elected to the bench in 2001, he handed Lomas’ case to another firm—but he was still set to receive a 30 percent referral fee if Lomas was successful.
The Supreme Court heard argument in March, after an evenly split eight-judge Superior Court panel upheld a $1.69 million verdict in favor of Lomas. The four who argued to affirm the verdict said Kravitz’s recusal motion was not filed in time, on top of being “a baseless attack” on Rogers that was launched after Kravitz learned he was liable for not paying Lomas.
Avoiding the merits of the recusal request, Justice Max Baer wrote in the court’s majority opinion that Kravitz took too much time to ask Rogers to recuse.
“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 Oct. 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 Sept. 6, 2007. Accordingly, we hold that appellants failed to file the recusal motion in a timely manner and, therefore, waived the issue,” Baer said.
The reasoning reflected Baer’s line of questioning to Thomas A. Leonard, chairman of Obermayer Rebmann Maxwell & Hippel in Philadelphia, who argued on behalf of Kravitz in March.
During those arguments, Baer wondered aloud why an objection wasn’t raised at the time Kravitz’s previous lawyer found out Branca had an interest in the case. Baer said that in a capital case with similar circumstances, a lawyer whose client could be “headed to the gallows” wouldn’t hesitate to push for a mistrial.
Leonard disagreed. He said his predecessor was so shocked by Branca’s involvement in the case that he didn’t have time to process what was going on until 39 days later after the case was already closed. That argument, however, was apparently unpersuasive.
Only Chief Justice Thomas G. Saylor dissented from the majority.
“Although I agree with the majority that a motion for recusal must be promptly filed, my view diverges from the majority’s application of the ‘earliest possible moment’ standard and its conclusion that appellants’ filing was untimely,” Saylor wrote separately.
Leonard did not immediately respond to a request for comment.
Reached Sept. 29, Lomas’ counsel, Paul Rosen of Spector, Gadon & Rosen in Philadelphia, said his client was gratified that the case, which started out as a dispute over $30,000 of carpentry work, is finally finished.
“We also recognize that the Supreme Court’s decision sent a strong message that attorneys and judges in this commonwealth should carefully consider the recusal issue when any judge is involved in litigation,” Rosen said in an email. “This is particularly true because the Supreme Court did not address the recusal issue on the merits or adopt either position taken by the divided panel of the Superior Court sitting en banc.”