This аppeal arises from the granting of preliminary objections to a civil complaint. The trial court ordered that appellant’s complaint be dismissed with prejudice for failure to state a cause of action. Appellant, Allen L. Feingold, contends that the trial judge erred when he: (1) dismissed the complaint, as the complaint stated a cause of action pursuant to a number оf intentional torts; (2) refused appellant’s request for leave to amend the complaint; and (3) refused to recuse himself from the case. Finding appellant’s arguments to be without merit, we now affirm.
Appellant is an attorney who has been practicing law for approximately twenty years, and continues to so practice in Philadelphia. This action seems to have arisen from a sеries of encounters with other members of the legal community: namely, the appellees in this matter, who are: (1) the Honorable Louis G. Hill, a trial judge in the Philadelphia Court of Common Pleas; (2) Ganesh Bala, Esquire, Judge Hill’s law clerk; (3) Joseph M. Hankins, Esquire, an attorney practicing in the Philadelphia area; and (4) Duane, Morris & Heckscher, the law firm with which Mr. Hankins practices. Appellant has brought the current suit аs the result of three separate lawsuits in which appellant’s cause came before Judge Hill.
In the first case, Markey v. Marino, Philadelphia County, November Term, 1981, Number 212, Judge Hill entered a series of orders which were unfavorable to Mr. Feingold and his client, Markey, pursuant to various motions filed by appellee Hankins in his representation of Marino.
Initially, Mr. Hankins filed a motion for sanctions for failure to answer interrogatoriеs, as well as a separate motion to compel the production of records. Both motions
In the months to follow, Mr. Feingold persisted in obstructive behavior which included: (1) the failure to pay the above counsel fees; (2) the retaliatory filing of two frivolous discovery motions, both of which were denied by Judge Hill; and (3) the failure to post security, pursuant to Pennsylvania Rules of Appellate Procedure 1731 and 1735, in a timely fashion, when another appeal to the Supеrior Court was filed. As a result of the above behavior, an additional six hundred dollars ($600.00) in counsel fees, as well as a fine of two hundred fifty dollars ($250.00), were imposed by Judge Hill, pursuant to Mr. Hankins’ request for further sanctions in two separate hearings.
In the second case, Feingold v. Skipwith, 11 Philadelphia Rep. 20 (1984), Mr. Feingold filed four petitions demanding the permanent recusal of the Honorable Alfred DiBona of the Philadelphia Court of Common Pleas, from hearing civil motions 1 involving either Mr. Feingold or his clients. In support of his petitions, Mr. Feingold cited fifty-one (51) cases in which Mr. Feingold either acted as counsel, or was a party himself, all of which were decided unfavorably to Mr. Feingold at some pre-trial stage by Judge DiBona.
The matter was assigned to Judge Hill for disposition. A hearing was conducted on February 14, 1984. On June 12, 1984, Judge Hill issued a thirty-five (35) page opinion, with an eleven (11) page appendix, thoroughly and conscientiously analyzing all 51 cases cited by Mr. Feingold. Judge Hill failed to find any prejudice on the part of Judge DiBona, and dismissed Mr. Feingold’s petitions.
Mr. Feingold responded by filing a petition for the recusal of Judge Hill in a third case,
Tareen v. Cohen,
which had
Following the filing of the instant complaint, preliminary objections were filed by all named defendants. Mr. Feingold then filed a petition, which requested that the motion be transferred to a non-Philadelphia judge for disposition, and the Honorable Melvin G. Levy of the Delaware County Court of Common Pleas was appointed by Chief Justice Nix to hear the motion. Argument upon the preliminary objections was scheduled to be heard before Judge Levy and the Honorable Joseph T. Labrum on October 15, 1985. Mr. Feingold requested a continuance of the argument, alleging a previous commitment in the Delaware County Courthouse. Judge Levy denied the request for continuance. When Mr. Feingold appeared at the October 15 argument, he presented an oral motion for the recusal 2 of Judge Levy for undue prejudice. In support of his motion, Mr. Feingold cited the denial of the request for continuance of argument, as well as an incident in an unrelated lawsuit which had occurred fourteen months (14) prior, in which Judge Levy had held Mr. Feingold in contempt. Judge Levy refused to recuse himself. Argument upon the preliminary objections then proceeded before Judges Levy and Labrum. By order dated October 16, 1985, Judge Levy sustained the preliminary objections, and dismissed the complaint, with prejudice. This timely appeal followed.
Initially, with respect to two of the appellees, Judge Hill and his law clerk, Ganesh Bala, it is our holding that both men are immune from the current lawsuit pursuant to the doctrine of judicial immunity.
With respect to Judge Hill, the law in Pennsylvania is well established that judges are absolutely immune from liability for damages when performing judicial acts, even if their actions are in error or performed with malice, provided there is not a clear absence of all jurisdiction over the subject matter and person.
Stump v. Sparkman,
In support of this allegation, the complaint makes repeated references to Judge Hill’s animosity and prejudice towards appellant, and cites, as factual demonstration, Judge Hill’s unfavorable rulings and imposition of sanctions and fines. These actions were clearly within the scope of Judge Hill’s authority; furthermore, as stated previously, malice does not, in and of itself, make judicial behavior actionable. Stump, supra; Praisner, supra.
In fаct, the only allegations of the complaint which would take Judge Hill’s actions beyond the realm of his authority, if true, relate to his alleged conspiracy with his law clerk to prevent appellant from representing his clients and practicing law in the Commonwealth of Pennsylvania. His only factual support for this allegation, however, is in the form of an exhibit attached to the complaint, consisting of a series of letters and one memorandum, relating to the Tareen case. Apparently, the matter was continued by Judge Hill, despite appellant’s erroneous understanding that the matter was specially listed. Judge Hill’s law clerk, Mr. Bala, upon hearing that appellant had phoned, returned the call, and attempted to explain the reasons for the continuance. Appellant responded angrily that he had been entitled to earlier notice, and, in followup, wrote a letter of complaint to the President Judge, Edward J. Bradley. Judge Hill sent a reply letter to President Judge Bradley, explaining his position. A review of this exhibit, and the events related therein, do not reveal any action going beyond the normal course of court business, much less action rising to the level of a cоnspiracy.
As such, appellant has failed to plead any facts which would remove Judge Hill’s cloak of judicial immunity.
In the past, quasi-judicial immunity has been extended to magistrates, see McNair’s Petition, supra; officials of state agencies, see Dwyer, supra; and district justices, see Praisner, supra. The rationale that has been consistently apрlied for the extension of such immunity has been stated as thus:
If a judge of an inferior jurisdiction has the power under authority of law to hear and pass on cases, to which the particular offense belongs, the same reason requires that he should be protected from liability for erroneous action, which exempts judges of superior or general jurisdiction from such liability. If judges properly expected to be most learned in the law can plead official exemption for their blunderings in the law, a fortiori those from whom less is to be expected should not be compelled to respond in damages for their mistakes honestly made.
Praisner, supra. (Emphasis supplied).
The same reasoning would appear applicable to law clerks as well. Indeed, law clerks, while trained in the law, are not judges, and less is exрected from them than their employers. As such, to permit the imposition of civil liability upon law clerks who are merely performing their appointed tasks, while insulating magistrates and district justices, would be incomprehensible, and unduly harsh.
As a further consideration, the law is generally averse to that which interferes in the lawful exercise by judges of
It is axiomatic that law clerks are supervised by their employers in the performance of their duties. If the courts of this Commonwealth were to permit law clerks to be subject to liability for duties honestly performed pursuant to such supervision, we would be permitting an indirect, yet very real, interference in the exercise of discretion by their employers. The cloak of quasijudicial immunity must be extended to law clerks in the performance of their official duties if we are not to entirely emasculate the independence of the judiciary itself.
In light of this holding, we must now examine the allegations against Mr. Bala. As stated previously, Mr. Bala is alleged to have conspired with Judge Hill to prevent appellant’s exercise of his right to practice law. Again, the only factual support for this allegation relates to the Toreen continuance, in which Mr. Bala did no more than return appellant’s phone call, and report the substance of that phone call, through a memorandum, to Judge Hill. Clearly such activity would have fallen within the parameters of Mr. Bala’s duties. As such, Mr. Bala is immune from suit in the instant matter under the protection of quasi-judicial immunity.
Were we to find judicial immunity inapplicable in this case, however, we would nonetheless be compelled to uphold the dismissal of the complaint against Judge Hill and Mr. Bala for the same reasоn we uphold the dismissal with respect to Mr. Hankin and his law firm — the complaint, simply put, is premised upon a series of legal conclusions, yet is devoid of the slightest factual support for these conclusions.
Blind suspicions and unsupported accusations simply do not state a cause of action pursuant to any theory of tort recovery. Even our present liberalized system of pleading requires that the material facts upon which a cause of action is premised be pled with sufficient specificity so as to set forth the prima facie elements of the tort or torts alleged.
Baker v. Rangos,
Appellant’s second cоntention on appeal is, in effect, an argument in the alternative. Appellant contends that the complaint, if legally insufficient, should not have been dismissed with prejudice before granting appellant at least one opportunity to amend. We disagree.
The right to amend should be liberally granted, absent an error of law or resulting prejudice to an adverse party.
Connor v. Allegheny General Hospital,
501 Pa.
The instant complaint consists of fifty-two (52) paragraphs, divided into two counts, and ten (10) exhibits. In its entirety, the complaint approaches three hundred fifty (350) pages in length. As stated previously, however, this 350-page document merely reports the series of events from the Markey, Skipwith, and Tareen matters, and alleges various intentional torts sheerly upon the bases оf supposed hostility held by appellees toward appellant, and appellant’s losses in each case. Furthermore, appellant’s brief fails to set forth any additional facts which would support a cause of action pursuant to the various torts.
Appellant, as we have noted, is a practitioner with twenty years of trial experience. Yet, despite this voluminous pleading, he has failed to state a cause of action, and has not demonstrated, through his brief, an ability to cure this deficiency. As such, we are compelled to reach but one conclusion: this pleading was appellant’s best effort, and granting him an opportunity to amend would have been fruitless. Hence, we cannot find that the trial court abused its discretion in denying appellant leave to amend, and we uphold its decision to dismiss the complaint with prejudice.
The final issue raised on appeal concerns the trial judge’s refusal to recuse himself from hearing oral argument on the preliminary objections. Appellant contends that the
Initially, we note that appellant would appear to have waived this issue for purposes of appeal.
As a starting point, the notice of appeal as filed indicates that the only order from which appellant is taking an appeal, is thе order of October 16, 1985, granting appellees’ preliminary objections and dismissing the complaint. Appellant’s motion for recusal was denied orally in open court on October 15. More than thirty days have passed since that denial. As such, the time for taking an appeal has passed. Pa.R.A.P. 903(a). Furthermore, the docket entries do not indicate that the October 15 order was ever reduced to writing. An oral order of court is not appealable until it has been reduced to judgment and docketed by praecipe of a party. Pa.R.A.P. 301(c), (d). As this was never done, appellant has failed to take the appropriate procedural action to make the recusal order appealable.
However, setting aside the procedural problems this issue оf recusal presents, we would be inclined to uphold the trial court’s decision on the merits anyway. A party petitioning for disqualification of a trial judge bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal.
Hall v. Hall,
Order affirmed.
Notes
. Judge DiBona is one of two civil motions judges in the Philadelphia Court of Common Pleas.
. Mr. Feingold also filed a written motion for recusal, but did not file it until the morning of the argument on the preliminary objections. As such, copies had not been received by either Judge Levy or opposing counsel, and opposing counsel had not been given the opportunity to file a written answer to the motion at the time of argument.