E.T.S., III v. C.S.
770 EDA 2017
| Pa. Super. Ct. | Sep 13, 2017Background
- Father (E.T.S., III) and Mother (C.S.) divorced in 2007 and have been in protracted custody litigation over their child since 2005.
- After a four-day non-jury trial in Feb. 2016, Judge Koury entered an order and opinion disposing of pending custody and contempt petitions on June 9, 2016.
- Father filed a November 16, 2016 petition asking that the entire Northampton County Court of Common Pleas judiciary recuse itself; the petition was renewed after a November 29, 2016 custody conference.
- A hearing on the recusal petition occurred Feb. 8, 2017; Judge Stephen G. Baratta denied the petition by order dated Feb. 14, 2017 and issued a statement of reasons. Father appealed pro se on Feb. 28, 2017.
- The Superior Court treated many of Father’s complaints about prior custody rulings as waived because the Feb. 14, 2017 order did not alter custody; the court considered whether the recusal-order denial was immediately appealable.
- The Superior Court concluded it lacked jurisdiction because the denial of a pre-trial recusal motion was not a final, interlocutory, or collateral order and quashed the appeal as interlocutory.
Issues
| Issue | Father’s Argument | Court/Opposing Argument | Held |
|---|---|---|---|
| Appealability of denial of recusal motion | The trial court abused discretion by refusing to recuse the county judiciary; appeal should be permitted now | Denial of a pre‑trial recusal motion is not final or otherwise immediately appealable under Rules 311/313; collateral‑order doctrine not met | Appeal quashed for lack of jurisdiction: denial not immediately appealable |
| Waiver of challenges to prior custody rulings | Father raised numerous challenges to past custody determinations and sought retroactive relief | The Feb. 14, 2017 order did not modify custody; such claims are unrelated to this appeal and therefore waived | Court deemed custody‑related claims waived for purposes of this appeal |
| Collateral‑order doctrine application | Father implied recusal denial was too important to delay | Court applied narrow three‑part test (separable, important right, irreparable harm) and found none satisfied given long‑running underlying custody dispute | Collateral‑order doctrine not met; review must await final determination |
| Timing/prematurity of recusal appeal | Father sought immediate review to remand and fast‑track custody evaluation | Citing precedent that pre‑trial recusal motions should be reviewed only after an underlying action is filed and decided; immediate appeal could produce advisory rulings | Appeal premature; remedy is to pursue review after underlying proceedings conclude |
Key Cases Cited
- Bailey v. RAS Auto Body, Inc., 85 A.3d 1064 (Pa. Super. 2014) (appealability implicates court jurisdiction)
- Veloric v. Doe, 123 A.3d 781 (Pa. Super. 2015) (defines final order and appealability principles)
- In re Bridgeport Fire Litigation, 51 A.3d 224 (Pa. Super. 2012) (denial of recusal generally not final and appealable)
- Commonwealth v. White, 910 A.2d 648 (Pa. 2006) (example where recusal denial was treated as appealable under Rule 311(d))
- Dougherty v. Heller, 138 A.3d 611 (Pa. 2016) (elements of the collateral‑order doctrine)
- Ignelzi v. Ogg, Cordes, Murphy & Ignelzi, LLP, 160 A.3d 805 (Pa. Super. 2017) (narrow application of collateral‑order doctrine)
- Krieg v. Krieg, 743 A.2d 509 (Pa. Super. 1999) (pre‑trial recusal motions are not immediately appealable; review should follow an underlying adjudication)