*1 ry claims, respect LeAnn’s ex
plained why policy previously lapsed, that,
explained several paid claims were but plan
error that Conseco did to seek funds, for those
reimbursement and en duplicate copy
closed Policy
LeAnn’s Id. As authorities review. demonstrate,
cited above Conseco’s letter
explaining its prior denial of benefits Jones,
WOP did not toll the statute. See
Cozzone, supra. reasons,
For I respectfully these dissent majority’s decision on LeAnn’s ground
bad faith claim on the that the trial
court properly entered a verdict in favor
Conseco LeAnn’s bad faith claim.
Roy LOMAS, Sr., H. Roy Lomas d/b/a/
Carpet Contractor, Appelle
e KRAVITZ, B.
James Springs Andorra Inc.,
Development, Cherrydale Con Co., Development
struction Eastern
Enterprises Inc., Kravmar, Inc.,
Appellants. Court,
Superior Pennsylvania.
Argued Oct.
Filed Dec.
HI BENDER, P.J.E., BOWES,' BEFORE: J., PANELLA, J., DONOHUE, J., SHOGAN,.J„ J., LAZARUS, ALLEN, J., WECHT, STABILE, J.-, J. PANELLA, OPINION BY J. This appeal phases of concerns two underlying liability trial: verdict and As assessment. detailed be- low, liability the entire affirms verdict entered the Honorable Thomas Rogers -P. the Court Common Pleas Montgomery County. Accordingly, our holding reasoning regard in that binding precedential. See Common- Brown, (Pa.Su- wealth 23 A.3d (ere banc). per.2011) reasoning *5 liability our affirmance of the verdict fol- introductory these lows words. n damages verdict affirmed an equally holding divided Court. Our reasoning is, respect damages with therefore, non-precedential and binding only on the parties. id. See verdict, In damages relation to the on appeal issue Rog- was whether ers, as well Montgomery as the entire bench, County should have recused. The Majority Appellants’ holds that recusal and, untimely was patently motion there- fore, waived. We n further conclude that the recusal motion was a baseless attack following on trial court an unfavorable on liability, expense verdict at the made integrity Montgomery County case, trial bench. This is a not an waiver Rogers, “appearance” case. as the judge, every that was trial made disclosure required of him. concede Judge Rogers is no there evidence bias, unfairness, prejudice. showed Leonard, Thomas A. Philadelphia, for appellants. Additionally, case, facts of this under the Rosen, Philadelphia,
Paul R. appel- cannot-agree we Dissent that a conflict, a single judge, lee. which affects but $30,913 performed due for work the entire balance leads to damages, compensatory attorney’s twenty judges.1 plus of over bench fees, costs, and interest calculated ac- than affir- other Finally, result Cherrydale with CASPA. filed a cordance cam- Kravitz absolve mance would final award which petition strike the use abuse of of incessant paign ultimately on October was denied litigation processes. civil petition pending, Appellant While Appeal The Parties all out Kravitz transferred assets of Cher- Kravitz, B. Andorra James Appellants, rydale, Springs, and Eastern to Andorra (“Andorra Inc. Development, Springs under his himself other entities con- Com- Cherrydale Construction Springs”), trol. Inc., Kravmar, (“Cherrydale”), and pany In March initiated the Appellee Development formerly known Eastern seeking pierce corpo- action instant (“Eastern”), collectively Inc. Enterprises, alleg- veil the Kravitz Entities and rate Entities,” appeal “Kravitz known as the ing fraud fraudulent transfers. Sever- judgment August from the entered years legal proceedings discovery al Lomas, Roy H. Appellee in favor trial commenced in before a bench ensued Sr., Carpet Lomas contractor Roy d/b/a/ agreed parties to bi- January 2007. (“Lomas”), $1,688,379.10. amount of trial, and furcate the after court en- Summary verdict and in favor liability tered order Ap- Appellant Cherrydale and Appellee against Appellants in July into a contract pellee phase Lomas entered commenced in agreed in- supply Appellee September 2007. coverings in floor new construction stall following After close the record *6 by Cherrydale. Appel- being built homes trial, second but phase before shortly immediately, but lee work began verdict, its the trial court rendered final Cherrydale breached con- thereafter sought Appellants the entire stopped work. At that Appellee tract and County Court Common Montgomery Cherrydale Appellee point, owed delays Pleas. More ensued before tri- $30,913.00. to arbitra- The matter went April al court On denied motion. of arbitrators unanimous- panel and 2011, the court issued extensive trial find- Cherrydale had breached ly concluded ings of fact and conclusions law deter- entry of an interim After contract. mining Appellant Kravitz had inten- favor, $30,913.00 Appellee’s award tionally deprived Cherrydale with assets to vacate inter- Cherrydale petitioned Appellee, had pay and intentional- which im award. fraudulently ly disregarded the corpo- and form, intermingling rate his com- panel the arbitration and In September $200,601.61, totaling perpetrate fraud pany’s award affairs and a final entered injustice. confirmed Contractor and with the accordance (“CASPA”), $200,601.61 Payment Act initial arbitration and award Subcontractor 501-516, punitive compensatory awarded dam- §§ included P.S. provide any principled judges; it seriously Pleas has over cannot fails The Dissent guidance argued single judge for bench to assess that a conflict rule example, challenges in the future. For these to taint the entire trial carries over bench in has Philadelphia counties, trial bench over as well as other counties. these Allegheny judges Common and the
H3 interest, Cherrydale’s only Cherry- fees, penal- was customer. ages, attorney’s capital, had no dale contract be- $1,688,379.10. Af- for total award ties Cherrydale Springs tween and Andorra August entry of judgment . ter Cherrydale had value to such inherent to this timely appealed it could obtain a loan from a bank. three-judge panel of this Court A Court. Cherrydale payments di- was receive court’s adopting after the- trial affirmed rectly from Andorra for in- Springs costs Pa.R.A.P.1925(a) as its This opinion own. building curred connection reargument, en banc. granted Court then homes. Background Appellant . man- Eastern served Entities
The Kravitz An- agement payroll company for the B. Appellant From 1994 to James Steven Group.- dorra A. Braun was the officer, director, and Kravitz was Chief Financial Officer of Eastern the sole group companies leaving 100% 1992 to After his employ- shareholder of a Eastern, ment with was collectively Group.2 known as the Braun retained Andorra accounting pre- Kravitz to offer advice comprised Group Andorra the tax returns pare companies for subchapter many corporations involved S within .the Andorra Group. including, building in the home business to, Appellants but Andorra limited Appellee’s Involvement and Subse- Springs, Cherrydale, Krav- quent Kravitz Actions arid Eastern. meetings'or
itz corporate did not hold 10, 1994, On Cherrydale, as November practices conform to otherwise standard for con- Springs, contractor Andorra Appellant required of such entities. Krav- Appellee supply tracted with install itz personally The Reserve at La- owned floor coverings Appellee in its new homes. (the fayette Township Hill in Whitemarsh began work but immediately stopped “Reserve”), large he parcel of land which Cherrydale December 1994 because had six divided into sections residential de- paid At point, Cherrydale him. II, I, velopment. He Sections contributed $30,913.00. Appellee January owed III, million, to Andorra valued $3.2 1995, Appellee that Appellant demanded Springs, which been formed Cherrydale submit to arbitration accor- II, I, purpose owning sole Sections their contract. C. dance with Thomas *7 housing III developing single-family and Branca, Appellee Esq., represented IV, V, there. Kravitz Sections and kept 24, 1996, May arbitration. On the arbitra- for himself. VI Sometime Kravitz panel award, partial issued an interim jnto agreement with entered an option finding Cherrydale had its breached Corporation Home Delaware Pulte Val- Appellee- contract with and had violated (“Pulte”) ley whereby purchased Pulte CASPA, §§ Immediately 73 P.S. 501-516. (cid:127) IV, V, Sections from Kravitz. and thereafter, VI petition seeking Kravitz filed a have the interim vacated. to award was formed in Appellant Cherrydale During pendency when it of that petition, was until 1993 but inactive to Appellant Kravitz and his accountant Springs build contracted Andorra de- allegedly declining cided that to finan- single-family Andorra due Springs homes. one used Kravitz so that he could have Group 2. The Andorra a fictitious name was representing companies, developments all of most Kravitz’s name for his that would be building were in the home business recognizable by public. during years 1994-1998. name was II, III Reserve that Andorra benefited Cherrydale, cial conditions IV, However, V, at the VI. Sections each insolvent. Eastern were Springs, and in- Springs was that Andorra same time 20, 1996, Krav- Accordingly, on Décember Cherrydale for the of con- to costs debted shareholder, itz, director secre- as sole homes, Springs structing Andorra loaned tary company, executed “Com- each over approximately Eastern million $5.8 Consent Shareholders bined "Unanimous what for man- and above it owed Eastern for each of the three com- and Directors” agement services Reserve. related business activi- terminating panies their money from Andorra Eastern used company to ties. He also each directed interests, fund Springs to Kravitz’s other necessary steps wind-up and take to, horse including, but not limited his residential construction and all terminate farm, Farms,5 Chimney personal Burnt activity and sell re- business related Gladwyne prop- residence in and his other therewith, associated maining assets Dublin, Upper Hunter’s Pointe erties pay, possible, the extent the sub- “to By Andorra the end Glen. accounts intercompany amounts stantial over one million Eastern advanced otherwise cancel those ac- payable or to horse dollars Kravitz’s then-insolvent payable.” counts On December Eastern no efforts to collect farm. made $2,169,575 Cherrydale off wrote debts eventually Kravitz determined that debt. Springs. it Andorra On Janu- owed to Chimney that Burnt Farms could re- 4,1997, ary Cherrydale Kravitz authorized Eastern, it and Eastern wrote off pay payable both its accounts cancel bad debt.6 Kravitz determined also accounts receivable.3 repay Springs Andorra Eastern could not Inter-Company Entities’ Kravitz $4,905,000 as approximately off and wrote Transactions allegedly Eastern was bad debt. While (cid:127) insolvent, approxi- Kravitz transferred supposed were flow Funds $654,108 money Eastern’s mately owner, Cherry- Springs, Andorra capital himself the form of a distribution contractor, dale, paid. By were never of val- nothing for which Eastern received Springs owéd Andorra the.end ue in return. for the homes Cherrydale million $3.7 Cherrydale addition, 12, 1997, had built.4 In Cher- the Honorable Wil- On June rydale $714,000in costs Montgomery had incurred relat- liam T. Nicholas Coun- I, ty Appel- improvements to ing to Sections Common Pleas denied the site loans, Chimney transfers Cherrydale to build homes for Burnt continued those Springs Springs re- even Farms was insolvent. Andorra Andorra n loans, though allegedly winding Cherrydale security ceived transfers Chimney though unen- its business. even Burnt Farms had down $1,000,000 over cumbered assets valued at land, horses, buildings. Burnt such as August 1994 4. Braun authored memoranda *8 1995, paid Springs Chimney Farms never Andorra and December indicated , steps to Springs never took profitable. It lacked back Andorra Cherrydale was .cash Springs wrote off Springs pay did not it. collect debt. Andorra because Andorra $577,551.81 as bad debt. 1996, During Springs 1995 and Andorra personally Chim- also Burnt transfers to Burnt 6.Kravitz loaned made cash or loans Chim- million, Farms, but he ney approximately $1.8 ney Farms Kravitz's horse farm. On Decem- 31, 1996, did not view own loan as uncollectible ber of the transfers and balance Chimney write off his loan to Burnt by Springs to did not loans made the' farm Andorra $577,552, bad At as approximately the time of Farms debt. petition for lant's to vacate confirmed receivable the site improvement from Cherrydale arbitration to Springs, interim award. Andorra from Kravitz, Springs Andorra to Kravitz owed 1997, September awaiting while Springs $714,000. Andorra Andorra award, entry of the Krav- final arbitration Springs nothing received for distribu- itz directed Braun to make series Kravitz, tion to other than the cancellation adjusting year for the journal entries end- $124,000 loan allegedly by made 31, 1996, for ing December the Kravitz Kravitz to Andorra Springs. Kravitz then As part adjusting journal of the entities. capital from received a distribution Andor- entries, Cherrydale, which had incurred $590,000. ra for Springs remaining $714,000 relating in costs to im- the1 site nothing exchange Andorra received for IV, V, provements that Sections benefited the capital contribution. This series of VI,7 transferred that account to receivable transactions allowed Kravitz to pay- avoid Springs. Cherrydale Andorra received ‘ ing creditors of the Group compa- Andorra nothing from Springs Andorra for nies, and to retain the value the Andor- except transfer to promise pay. corporations ra Group through transfers Cherry- to promise pay was worthless to improvements, distributions, and capital was, Springs dale because at that Andorra write-offs of loans made himself and his time, insolvent. Once the account receiv- horse farm. for improvements able the site been adjustment journal entry September transferred On the arbitrators (“Final Springs, Award”) Springs Andorra Andorra issued a pur- trans- final award ferred the site also via suant CASPA in improvements, the amount of journal adjustment, $200,601.61, entry including Kravitz and compensatory dam- off fees, wrote Cherrydale. ages, attorney’s debt it owed costs and interest As result of the transfer the accounts determined as follows. Unpaid performed 30,913.00 for work balance Lomas: $ Unpaid per on 1% up Interest balance [at month] 7,1998: including 13,302.00 August $ profit unperformed Lost for to improper work due 94,199.00 termination the contract: $ profit per up the lost [at annum] Interest amount 6% on August deposit credit less interest 1,1995 April 7,1998; 14,872.00 August $ litigation 41,834.78
Attorney’s fees and costs: $ $ 4,032.66 expenses: Reimbursement administrative fees compensation expenses Reimbursement 1,448.17 arbitrators: $ $200,601.61 TOTAL Arbitrators, 9/4/98, CASPA, § Final Award of provided by at R.R. 73 P.S.
722a. portion interest on the the award ($94,199) profit lost would accrue Final Award that interest confirmed 6% per Septem- rate of annum. On legal unpaid would accrue balance ($30,913) performed per entry work 1% month ber after the of the final *9 improvements electricity, basically grading, preparing 7. Site for include under- the site de- ground systems, roadway, wiring velopment. sewer for they pre- against Cherrydale, for both sides stated that were judgment as a
award summary judgment. motions petition paring to strike the Cherrydale filed judgment. their fur- Notwithstanding promise 2004, delays, July after Appellee ther of that During proceeding, pendency summary judgment, Ap- filed a motion for discovery anticipa- Appellee conducted sought and received pellants sixty addi- judgment executing on tion of and discovery. to days tional conduct On Appellant Kravitz had discovered day, made sixtieth additional Cherrydale, all assets transferred requests seeking information and docu- Eastern his other and to Springs, Andorra already produced. been ments and himself. entities actions, of Appellants’ Because redundant Litigation The Instant Appellee’s summary judg- resolution 2000, 31, awaiting while On March delayed ment motion until June 2005 was peti- on Cherrydale’s trial court’s decision Despite when the trial court denied it. judgment, then-Attorney tion to vacate the opposition to arguing Appellee’s sum- the instant action Thomas Branca initiated mary judgment motion that there were complaint Appellee’s on filing behalf fact, Appellants then material issues 10, September seeking to collect the for summary judg- filed their own motion (1) piercing corpo- on: judgment based further, delay. causing ment thus veil; (2) transfer under rate fraudulent ultimately Nicholas denied their motion Act, Transfer Uniform Fraudulent Pa. Be- and the case was scheduled trial. (3) 5101-5110; §§ fraud. Dis- C.S.A. 2007, continued tween was and motions ensued. covery alleged times unavail- numerous due Appellants’ ability of witnesses and ex- 2001, Attorney Branca In November perts. Montgomery County was elected Pleas; he of Common referred pre-trial January At a conference on attorneys, load to other and filed a
ease Rogers Honorable Thomas P. the instant withdrawal counsel, specifically with discussed January 2002. On March matter counsel, Kapustin, Appellants’ with Steve Spector, Gadon attorneys from & now-Judge hav- Esq., the issue of Branca (“SGR”) appear- Rosen P.C. entered their ing represented previously Appellee. mo- Appellee, ances on behalf filed Judge Rogers par- gave assurances production compel of docu- tions he case ties that had never discussed the been previously requested. ments that had All unequivo- counsel Branca. thereafter, Appellant Kravitz filed a Soon cally agreed proceed Judge Rog- before petition disqualified. SGR After a have ers.
hearing, Judge Appel- Nichols concluded liability phase bifurcated without merit lants’ were concerns January Ac- commenced June 2002. denied motion regarding countants for both sides testified discovery nearly complete, Appellants, in- the financial activities
When attorney sought cluding transfers loans withdraw as various Appellants’ them, dispute with payment Krav- Kravitz’s of in- amongst counsel over declaration ensued, during Appellant Corporations hearing A of each of Ap- solvency itz. Appellee entry pellants’ May after interim counsel assured award, tax delayed resulting case would and the court that the arbitration flowing Attorneys implications of counsel. benefits Krav- the substitution *10 80, 2007, Judge ney July Rogers regarding Appellee’s itz. en- expert’s On discus- liability and order in favor of report, tered verdict sion tax' issues in his but ob- against Appellants, con- Appellee that .those and served issues that far “were Id., cluding Rravitz had misused his cor- that significant.” from at 2503. fraudulently porations and transferred as- Judge Branca clearly also testified that Cherrydale disregard sets out in wanton spoken had never he judge about rights Appellee for the as a creditor. this case. also concluded that testimo- witnesses, Three other including Appel- by ny provided Rravitz and Braun was not Rravitz, lant then testified. Rravitz re- The court credible. scheduled the second to answer many questions fused regarding phase the trial on attor- his assets and the of his ney’s begin transfer assets. September fees in 2007. however, testify, Rravitz did that in In preparation damages phase for the had equity he million in in the land $5.5 trial, requests Appellee pro- served entities, owned one the Andorra duction of documents seek- was subsequently which sold for mil- $32 ing identify .to the net worth Rravitz lion. split Rravitz his wife net Appellee his entities. received 80-20, proceeds opened and each certifi- small requested. number documents deposit cates mil- the amount of $2 September On of trial the eve identify lion. would not or He could joints Rravitz tax returns produced pro- what done with remaining statements condition financial between n from ceeds He testified sale. that the wife, pro- his himself and but refused deposit certificates of liquidated had been many duce other court-ordered docu- 2007,. January but refused state what in. to: ments.8 proceeds. he done with the trial, At Judge regard- Branca testified ing his involvement prior case his Rravitz also regarding testified numer- bench, assets, ascension to the his counsel ous other earned including commercial and fees, SGR, his referral of the case to parcels Plym- residential located in land Appellee Dublin, the referral fee Township; had directed SGR outh' Upper Hunter’s Pointe, See at pay him the end case. and Philadelphia; which were (“N.T.”), 9/6/07, Testimony Notes of R.R. owned various S Corporations in at 2504.9 also Branca testified that he had an 80%-100% interest. also He spoken Appellee he had with SGR and testified that he 100% the S owned periodically Corporation about case Chimney indicated Burnt owned Farms, fields, of sub- nothing “[were] discussions the 160 polo acre farm with Id., at stance.” 2502. He also noted that which he stated was mil- valued $3.5 he a discussion with recalled an SGR attor- lion'.10' also He stated that December produce, among proceeds Rravitz refused .other third referral the net as a- fee.” Id.,, things, appraisals on non-residential real 21-22. There is no indication in the . owned, brokerage estate he state- bank as to what record "a third referral of the net ments for 2006 or re- documentation proceeds” it means or would include what deposit garding money certificates of agreement under the forged Appellee between January held market funds 2007, or cashed out in and SGR. relating partner- and documents to two Carlisle, ships Pennsylvania. "may 10.. Rravitz also testified he have” paid expenses players polo Ar- Appellee Branca testified Farms, polo although gentina play at the he SGR had he decided that would receive "a *11 exists or of of No million in certificates he had $3 simply million in a because a presumed an exist
deposit and additional $5 account, Kravitz money but could of of Pleas of Judge market Common Court identify gone. had County those funds not where an interest Montgomery has he had a home also stated that valued He underlying case.
at $1.9 um Florida, million in which Gladwyne; a he had transferred to condomini- % [*] during ownership with wife joint a permit party a undersigned will not The a litigation; of pendency progress with who'is dissatisfied $140,000 paid for which he had BMW arbitrarily at- the1 mid-stream close that at the Kravitz testified cash. tempt disqualification to cause the 2006, worth of over he a net $27 shopping Presiding Judge. has Damages, Findings See million. Fact — universally and will not condemned been at 12-15. proceed- any stage at be tolerated trial; over At the close of the See, ings. Ryan e.g., Commonwealth Appellee’s objection, Appellants were 602], (Pa.1979). Pa. [484 A.2d to determine whether granted days prejudice here does not show The record a accountant they forensic needed to retain bias, hence, without substantiation invoices submitted to review the' redacted they not the record receive did attorneys. Although by Appellee’s they full, trial, impartial fair and Defendants the court of they stated that would tell question the permitted shall not decision, thirty with days passed .the their court’s verdict. no from Appellants. word 12/31/08, 8, Opinion, Trial Court dated 2007, On October1 after record 12-13. closed, with Appellants appeared had been n pur- newly partial judgment counsel and submitted retained The court entered Montgom- for July entire in favor of 2007 order suant its motion Pleas, County trans- ery of Common against Court for Appellants Appellee and venue, assignment to an out-of- fer $200,601.61. Appellants filed an interlocu- county judge Judge Branca’s in- based quashed tory appeal, this Court which , the, volvement case. On with .December Appellants then March filed 31, 2008, motion, Judge Rogers denied extraordinary relief with application for stating:. . it requesting that ex- Supreme our Court imputed improprie- “appearance authority King’s Bench as- ercise its claim exists
ty” which Defendants jurisdiction. Appellants si- plenary sume interest virtue of Branca’s stay for. a multaneously filed motion court underlying provides the with case proceedings both this trial court legal to conclude upon basis Supreme pending the Court and our receive, cannot have not that Defendants application. King’s outcome of the Bench not to receive a received or will continue mo- Superior Appellants’ Court denied Montgomery trial in fair and impartial stay, and on tion for June County. . by per curiam Supreme Court denied or-
[*] % # der both the motion stay Appel- 15, ¶ Damages Findings testify so. as to which could or would Fact — years years may have many done he how H9 for extraordinary generally accepted lants’ application accounting practices relief. petition filed a for recon- purpose minimizing, then for the lawful tax liabilities, [sic ] the trial sideration with reconsid- recusal, its denial motion. eration Whether, law, as 'a matter punitive denied, petition July That and on *12 may damages awarded be where the 2010, closing court argu- the trial heard underlying arbitration award was based interest, Appellee’s ments on claims on the- Contractor and1 Subcontractor fees, punitive attorney damages. and Act, Payment which includes provision a authorizing 29, 2011, statutory the award a April pu- On the trial court issued [sic ] orders, penalty. nitive detailing findings two one of fact respect Ap- law with and conclusions Whether, law, as a matter of punitive liability, assessing and pellants’ the other damages’ may Appel be awarded where punitive compensatory damages, and pen- lants’ conduct was by 'general motivated alties, interest, attorney’s and in fees the ly accepted accounting and tax planning $1,688,379.10 of April amount principles willful, and outrageous, hot Appellants’ the denial of post- 201Í. After wanton, reckless, or Appel and where motion, prothonotary the fi- trial entered litigation conduct in defending lants’ judgment August nal process Was rights within its due and obdurate, dilatory, was not vexar timely and/or appealed to this : tious? Court, have following briefed the sev- Whether, issues. en law, as a punitive matter of a law, damages Whether, exceeding award far a 1:1 ratio as a matter of the entire compensatory Montgomery damages bench of Court of award Com- recused, "rights Appellants’ pro- mon should violates Pleas have been due full, complete, cess under the United States required Constitu- dis- and/or tion? covery permitted, of the irrepa- because
rable created Whether, law, as a matter trial by ongoing participation and finan- attorney’s could award Lomas court by sitting cial litigation interest a fees, interest, penalties under the member of that Court? Payment Contractor and Subcontractor Whether, law, (“CASPA”) Act as matter of testi- when did Lomas mony CASPA, Appellee’s expert bring trial should have claim .under stricken, altering been was precluded. discredited be- from or and/or court attorneys sitting adjusting underlying cause Appellee’s and- arbitration -County Montgomery member of the award did certain award altered, edited, CASPA, bench improperly arid the trial mis- court under expert’s applied influenced content of the its of dam- CASPA award - report, ages? [sic ] law, Whether, corpo- as matter of Appellants’ at 2-3. Brief pierced rate veil can be to find James B. Discussion liable, individually Kravitz all Appel- scope Our re standard transfers, of.
lants liable fraudulent follows. non-jury view verdict are as of a accounting adjust- based on non-cash arising ments bookkeeping entries appellate made Our role cases is to professional non-jury licensed accountants thé trial determine verdicts ordinary pursuant findings the trial course business court whether competent “A recusal or party seeking disqualifica- evidence supported are objection committed to raise required] court [is whether moment, application of the law. The possible error in the earliest that party must fact the trial findings of consequence being suffer the will time weight same and effect Lokuta, given In re 608 Pa. barred.” jury. the verdict appeal as .We (2011) added) (emphasis A.3d light in a most evidence consider (quoting Casey, Goodheart 523 Pa. winner. will verdict We favorable (1989)). Once party A.2d findings if its reverse the issue, has “he cannot waived be heard supported by competent of fact are complain following an unfavorable re- findings if its record evidence Stanton, Commonwealth v. sult.” *13 on error of law. How- premised are an 516, 585, Pa.Super. n. 440 A.2d 6 588 ever, ... a the issue concerns [where] omitted). (citations (1982) law, plenary. our review is question Here, Appellants opportunities had two conclusions of law court’s The trial they eventually to seek recusal before filed non-jury from a originating appeal first opportunity their motion. The oc- binding appellate on an not are in January curred before trial 2007 when appellate duty court’s because it Judge parties Rogers informed the correctly if the trial court to determine Judge representation Branca’s prior law to of the case. the facts applied the Rogers’s) (Judge assured them of his abili- Heating and Electric Stephan v. Waldron ty fair impartial. Appel- to remain LHC, 660, 100 A.3d 664-665 Cooling opportunity lants’ second to seek recusal (citation omitted). “[A]b- (Pa.Super.2014) 2007, September occurred immedi- discretion, reviewing an sent abuse ately Judge regard- Branca after testified by the trial court’s credi- court is bound his ing past and current involvement with De Lage Landen bility determinations.” case. Services, Manage- Inc. v. M.B. Financial Inc., (Pa.Su- Co., 888 A.2d 898 ment Appellants that it was on Sep- contend omitted). (citation per.2005) they first that tember learned Recusal Judge that had an Branca maintained in- result, As Appel- terest the case. a issue, Appellants first aver In their 6, 2007, lants that argue September was Rogers granting in not Judge erred possible the “earliest moment” bench of to recuse entire motion their they have their mo- should filed recusal County Com Montgomery Lokuta, tion. re 11 A.3d close of the mon Pleas after the However, rather than file an immediate Although they concede that there trial. motion, Appellants recusal allowed the tri- Judge Rogers showed no evidence proceed testimony al three bias, prejudice, Appellants unfairness witnesses, signifi- most including, more argue Judge that because nevertheless N.T., Kravitz. See cantly, Appellant to have connection Branca continued Trial, 9/6/07, Damages at 65-83. As not- his with the case after election ed, testimony appeared Kravitz’s bench, extreme- the mere ly It evasive was fabricated. such entire existed negative development required. that new- Appellants have bench was after ly-retained appeared failing timely Ap- counsel and filed argument waived this pellants’ spe- recusal motion. To be more possible opportunity. it first raise at the ciñe, attempt judge shop: late Appellants requested it not “Given the until n importance of court post-hearing thirty-day proceeding, not. to review expense, mention bills, party their time attorneys’ period thirty-day and the objection should able be to save passed Appellants filing any had without hedge until a against later as a documents, .losing date the rec- relevant until a case.” closed, Id. newly-retained coun- ord
sel the recusal motion. appeared filed citations, Among other cites treatise decision, ato Pennsylvania Reilly by Reil action, action,
This is unac or lack ly Pennsylvania Transp. Southeastern Judge Rogers ceptable untimely. told Authority, Pa.Super. A.2d Judge ear Appellants’ counsel of Branca’s (1984), aff'd, 507 Pa. A.2d litigation prior to involvement in the lier (1985), for policy the well settled that a ques trial. took action motion extent, for the disqualification on the Branca “should made at possible the earliest involvement, informally formally either time after party has actual notice through deposition. Appellants could disqualifying facts.” easily about Bran- have found out just ca’s continued financial interest opinion Our in Reilly, as well as the Instead, *14 asking “Appellants] him. chose Pennsylvania Supreme opinion in Court’s silent, resorting case, to remain the uncon the same clearly mandates the neces- reprehensible laying sity scionable and tactic of timely disqualification. motion for waiting grass, [was until decision In Reilly, the Superior Court concluded imminent], disqualifi raising the and then that the timely defendant had not SEPTA Goodheart, cation 565 A.2d at issue[.]” filed its for Motion Recusal because it had timely 763. Because failed to not during only been raised trial and was motion, raise recusal they their waived the for during raised the first post-appeal time See, e.g., Datagate, issue. Inc. v. Hewlett- pleadings. panel support found broad Co., (9th 941 Packard 871-872 F.2d holdings federal and state deci- Cir.1991) (delay of six weeks rendered mo sions. untimely); Hosp. v. Apple Jewish If party fails to at object the earliest Center., (2d Medical 829 F.2d 334 opportunity following of actual receipt Cir.1987) (noting delay a months two knowledge, objection will be held allegedly after facts movant re learned waived. A not party máy elect take quiring untimely). motion recusal rendered gaining chance on a favorable decision also re Mar See International Business then, unfavorable, if is the decision (2d Corporation, chines 643 45 F.3d grounds raise for which he recusal Cir.1995). knowledge his prior counsel had actual Every recognized made. jurisdiction being has decision See Deles waivable, Porterie, (5th disqualification judge demier F.2d is v. 666 116 Cir.), denied, party “if a cert. 459 U.S. 103 knows facts that would dis- (1982) (motion qualify judge, S.Ct. not move for 74 81 but does L.Ed.2d right disqualification, untimely judge so at a made do when disclosure pre-trial later relationship will be considered waived.” and recusal motion date al., on appeal Alfini made for first after James J. et Judicial Conduct time ed.2007). trials); § (4th two full v. City Ethics 4.14 Para- Potashnick Port Co., (5th mount 1101 among untimely Construction F.2d [609 concerns about an Cir.1980)] (grounds recusal party’s motion to is a for raised disqualify judge 122 Rogers presiding over be appeal waived case.
for first time
While the
alone
after
until
cause it was not discovered
recusal,
enough
recusal must
warrant
trial);
Conforte,
States v.
624
United
-
appropriate
circum-
occur
(9th Cir.),
denied,
under
cert.
449
F.2d 869
(cid:127)
were not
stances. Those circumstances
1012, 101
470
S.Ct.
66 L.Ed.2d
U.S.
present here.
(1980) (cannot
grounds
raise
recusal
had notice
appeal
time on
when
first
that a
party who asserts
be
cannot
facts earlier —timeliness
“pro
judge
disqualified
must
must
be
cases, although may
it
disregarded in all
bias,
establishing
prejudice,
evidence
duce
cases);
Smith
extraordinary
be
v. or unfairness
raises a substantial
Cir.1978) (timeli
(3d
Danyo,
585 F.2d
ability
preside
jurist’s
doubt as to-the
cannot toler
significant
ness
because
Arnold,
v.
Arnold
A.2d
impartially.”
information and
litigant knowing'
ate
(citation omitted).
674, 680 (Pa.Super.2004)
rul
holding
hoping for favorable
back
judges
is a
of this
presumption
There
seeking
ings
recusal when rul
and then
“honorable, fair and
Commonwealth are
favorable;
ings
recusal motion
are
Lokuta,
competent,” In
re
11 A.3d
giving
months after events
filed three
(citation
(2011)
omitted), and, when con
objection but before
rise
demand,
able to
fronted
are
recusal
rulings in
there
been
when
“in
they
rule
determine
can
whether
timely);
United States
meantime
personal
manner, free of
bias
impartial
(D.Mass.1981)
Kelly,
F.Supp.
Arnold,
outcome,”
847 A.2d
interest in
(motion untimely
attorney had
where
(citation omitted).
judge
If the
until after
facts
waited
knowledge
but
impartial,
he or she
determines
can.
29(c)
trial,
six
mistrial and Rule
week
“the
must
decide whether
then
motion);
*15
motion to file
Common
or her
case
continued involvement-in
Pavkovich,
444 Pa.
283
wealth v.
an appearance
impropriety
of
creates
(was
(1971)
judge
who
295
error
A.2d
public
would tend
undermine
and/or
attorney to sit on
prosecuting
had been
judiciary.
per
in
is a
confidence
This
deciding post-trial mo
banc
en
-that
sonal and
decision
unreviewable
tions,
objection
prior
was
no
raised
but
Id.,
(cita
jurist can
680-681
make.”
Musto,
v.
appeal);
Commonwealth
omitted).
deny
A
a
judge’s
tion
decision to
(defen
(1944)
348 Pa.
35
307
A.2d
motion
not be
recusal
disturbed absent
will
objection when
proceed
dant
he
waived
Lokuta,
an
of
See In re
abuse
discretion.
objection, despite
to trial
ed
without
11
A.3d at
may have
a
been
knowledge
judge
Here, Appellants
no evidence
presented
witness);
v.
[Brown]
Commonwealth
bias,
or unfair-
prejudice,
that established
Bahl,
Pa.Super.
[w]hile the mediation
courts is based
litigants in a case.
judicial
upon
principle
impartiali-
Reilly
Reilly, 489
at 1299 (empha
A.2d
disinterestedness,
per-
ty,
and fairness
added).
sis
judicature,
whole
vading
system
courts may
so that
near as possible
rely
and the
Dissent
Comm
is,
other,
suspicion,
be above
there
on the
Armor,
ex rel.
onwealth
Armor v.
side,
important
issue at stake: that
(1978) (en
Pa.Super. 353,
Contrary judiciary will be Appellants’ con weakened, tention, ruling respecting upholding not create a Armor does judge’s in all determination that he presumption that cases where a the trial has an could the instant case member of the bench interest hear decide Rather, impartially. Public confidence entire bench must recused. are principle judges Armor confirms the called decision weakened because difficult upon determinations to hear decide review recusal *17 reiterating opinion by not with its Appellee responds the did issue an remand trial opinion in It cannot be said that court’s that had been "abro- order Brockerman. Armor declined, “abrogated” by Supreme gated” in has been Brockerman when the Court Armor order, Supreme in per opportunity to or that our Court's action take the. to Brock curiam any precedential See "uphold presumptive value. Com standard articulated erman has ” 198, thus, Thompson, "specifically rejected 604 Pa. 985 in monwealth v. Armor and it.” Brief, (2009) (citing (citing law for Appellee’s re Estate A.2d case at 937-938 Brockerman, proposition per Pa.Super. that curiam orders hold 480 A.2d (1984)). authority). Supreme precedential 1201 n. 3 The public dispute The There is no. Rogers cases. does ex- that Judge controversial n however, judges pect, that will rise impartial fair all times. We in any above influence which inherent repeat, Appellants concede that is no there or high litigants low estate who Judge Rogers bias, that evidence showed Courage integ- come before them. unfairness, We, therefore, prejudice.' or rity the hallmarks an independent are conclude that even if motion for recu- More than like to judiciary. often we raised, timely Judge Rogers sal had been readily it is too contemplate, recusals not abuse his denying did in discretion in complex and controversial tendered Appellants’ recuse, motions to change ven- public cases weaken respect ue, assign an out-of-county judge. judiciary. by Dissent, result advocated Id., (internal omitted). citation damages that the verdict should be vacat- Furthermore, Armor, the motion was trial, and the case ed remanded a new hearing, made before the not after the is unfair judi- improper exercise of closed, record as in had been the case power. The position cial Dissent’s would Here, us now. had before extremely prejudicial be to Appellee knowing advantage Judge Rog- that place that it would Appellee at a distinct against liability them in ers ruled disadvantage 20-year-old litigation. trial, testimony of the portion judge The trial who heard the evidence appalling Kravitz was when he tried findings and made liability hide his and divert relevant assets funds frus- not would judge decision trate the'court’s award. who ad- dresses the portion case. Our Code of Judicial Conduct credibility decisions, the observations a norm of for all judges “set[s] conduct evidence, witnesses and other impose legal substantive do[es] the conclusions judge reached the trial them.” duties on Commonwealth liability phase in the would be rendered Druce, Pa. 848 A.2d meaningless another judge because (citation omitted). (2004) Judge While por- have hear the damages decide Ap Branca’s of the discussions ease with case. If this were caused pellee’s may may not raise a counsel necessity, such as the retirement or death personal ethical under our issue Code judge, aof then we would not have Conduct, Judicial the circumstances here However, concerns. remove provide legal do or ethical reason midstream, on ah issue that was impugn impartiality bench entire easily by Appellants discoverable prior Montgomery Court of Common unprecedented. trial would be unfair and Judge Rogers. Pleas or See id. above, got As rioted before the trial under Expert’s Report Admission of way January Judge Rogers dis Appellants’ avér “the trial counsel, specifically cussed with arid upon court erred admitting relying counsel, Appellants’ the issue of now- testimony expert” Plaintiffs because having previously Branca represent “Judge Branca improperly key influenced Appellee. Most significantly, ed aspects of report.” Mr. Appel Dovell’s Rogers gave parties assurances lant’s Brief at 34. prior At no to this he had never discussed the case with time *18 Branca, Appellants Judge all unequivocal appeal specifically and counsel have averred ly agreed proceed Rogers. Judge expert’s testimony before that the was inadmissi-
126 ry corporate entity of: use court-not- the rendered Or As ble unreliable.13 one ed, 57 errors have said that whenever Appellants raised less. although We Relief, they did corporation their Motion Post-Trial of a uses that control assets, erred control, not that corporate assert or uses the on Ar- relying report. admitting and personal inter his or own further her are guments not below waived raised ests, corpo sepárate fiction of the 302(a). purposes appeal. Pa.R.A.P. See disregard identity may properly rate be preserved Accordingly, this issue was not ed. appeal.14 is therefore
and waived Id., (citations omitted). at 532-533 Piercing Veil Corporate strong presump is a “[T]here Pennsylvania against piercing tion in non-cash Appellants that maintain their Industries, Inc. v. corporate veil.” Lumax methods, pur accounting “made for 893, Aultman, 895 543 Pa. 669 A.2d tax pose minimizing personal Kravitz’s (1995). following consider factors We Cherry- no having] burden effect [and determining pierce when whether creditors,” its ability to could pay dale’s (1) (2) undercapitalization; corporate veil: Kravitz, Appellants not be used hold formalities; corporate to adhere to failure Andorra, judg Eastern for the liable (3) intermingling corporate substantial Appellants’ against Cherrydale. ment (4) affairs, personal of the use Gregory Helvering, Brief (citing at 37 v. corporate perpetrate forni fraud. See 465, 469, 266, 79 293 55 S.Ct. L.Ed. U.S. separate “legal corpo id. The (1935)). fiction 596 designed to conven entity was serve rate Piercing corporate pro veil justice, will be disregarded ience and assessing liability for vides a “means justice public policy or demand whenever against equity corporation acts of a rights parties are and when the innocent Village at corporation.” holder in the theory corporate nor prejudiced Inc. Property Owners Camelback Assn. entity Ashley v. Ash useless.” rendered Carr, Pa.Super. A.2d (1978) ley, 482 Pa. 393 A.2d (1990) (1988), 524 Pa. aff'd, A.2d omitted). (citations curiam). (per Appellants Gregory cite as illustrative legal corporation fiction that corporate can- position veil their legal entity separate distinct from be pierced not be cannot transactions designed its shareholders was to serve they are “mo- considered fraudulent when and will dis justice, convenience .pol the best regarded justice publie or tivated desire achieve whenever Appellants’ rights possible tax benefit.” Brief icy require and innocent where taxpayer parties prejudiced Gregory, “reorganized” are not nor the theo expert upon relied 13. In recusal motion for admitted or testimo- their motion for motion, Appel- ny. of the reconsideration gave lants asserted Branca opinion Appellee’s attorney report on the Moreover, even if issue had not been during telephone case. discussion about observed, waived,.as trial court “there prior appeal Appellants At no time to this did support an assertion that evidence argue report improperly had been else, Branca, anyone improperly in- -preclusion and did admitted not seek report. expert's content of the fluenced” the report expert's testimony. In. or the their . 30-31, 1/15/13, Opinion, Trial Court dated relief, again post-trial motion for argue improperly did the trial court *19 appli- profit her business with the than accordance more million. Had $2.1 cash cable statute to obtain from her busi- Springs Andorra retained monies it liability. ness avoid a tax The United made home sales rather than'lend tax Supreme States Court affirmed the those monies to Eastern Kravitz’s commissioner’s determination that the “re- entities, other Springs Andorra would organization” was without substance and have pay had sufficient funds to Cherry- tax for payer was liable tax as if she dale. Had [ Eastern not lent monies ] to been paid a dividend. The had United entities, Kravitz purposes other whose Supreme recognized States had to nothing do with constructing or taxpayer right has a legal to decrease the Reserve, selling homes Eastern amount what would be his or her taxes money had with have which to would together or avoid “by them all means pay Springs. per- . Kravitz ] Andorra [ which the law but permits” noted that sonally intercompany authorized the “rule excludes consideration loans, insolvent, companies declared the tax not pertinent avoidance is to the the capital distributed to himself and “reorganization” situation” because the at authorized the write-off of the loans—all been issue “elaborate devious for his personal benefit and to the detri- of conveyance form masquerading as ment of creditors like [Appellee]. corporate reorganization.” 293 U.S. H* i 470, 55 S.Ct. capacity his [ ]In as President sole- The trial findings court’s extensive shareholder, Kravitz was ... only meticulously fact detail numerous person Group within the Andorra Appellant transactions Kravitz orchestrat- authority corporations among Cherrydale, bind the ed Andorra Springs, Eastern, loans or other signed [He] and other entities so as to render contracts. Appellant alleged tax motive of the tax returns for Cherrydalef, Kravitz’s Andorra pertinent. As Springs, avoidance not through trial court for 1994 Eastern] observed: 1998 and caused the to be returns filed. personally [ ] Kravitz that An-
But Kravitz’s directed direction Andorra Springs money Springs’ loan dorra intercompany payables’ Eastern Kravitz’s other be cancelled. entities his subse-
quent direction that Andorra Springs repay Cherrydale not for its intercompa- properties [ ]As a his result-of sale loans, ny Cherrydale would real- have Pulte and others in Kravitz had profit $250,000 ized approximately significant taxable income 1996. [] Cherrydale profitable [ ] was Group’s Without Andorra bad debt returns, reflected the tax but it ulti- deductions, have been Kravitz would re- mately pay did not its creditors because quired pay a million over dollars paid by it was not Andorra nor Springs, tax. Group’s Because of the Andorra [ ] repaid it for loans made it deduction, paid bad debt Kravitz Kravitz other entities. An- [] $3,734' Adjust- in tax. [ The series ] Springs’ dorra tax return and ing Journal Entries the end of made planning papers Kravitz’s tax demon- that, companies’ 1996 was direction[ strate but Kravitz’s detriment ] apd Kravitz, in Eastern and the other benefit entities repay (1) Springs, pay their loans to Andorra entries allowed Kravitz Springs Andorra Group compa- have creditors the Andorra realized *20 128 Associates, (2) pany, Inc. Toll Naval 56 to retain the value of v.
nies and
402,
corporations
(Pa.Super.2012).
through
410
Group
A.3d
Andorra
capital
improvements,
transfers
distri-
Damages
Punitive
to
of loans made
butions and write-offs
the trial
Appellants aver
that
court
horse
and his
farm.
himself
awarding punitive
damages
erred
be-
32-33,
Liability at
35-
Findings of Fact —
no
cause “there was
evidence
outra-
(internal
¶¶
135-139,
para-
144-157
conduct,”
willful,
geous,
wanton or reckless
numbers, headings and citations to
graph
is not enough
and fraudulent conduct alone
omitted).
Reproduced Record
punitive damages.
which
base
upon
Ap-
to
thorough
on our
review
Based
also
pellant’s
They
argue
Brief at 41.
that
law,
case
we con
and relevant
record
punitive damages
award
unconstitu-
findings
court’s
of fact
the trial
that
clude
tionally
to the
disproportionate
award of
its
by the record and
conclu
supported
are
damages.15
compensatory
There
of law contain
error.
sions
reviewing challenges
puni
In
to
showing
the record
evidence
sufficient
awards,
damage
tive
we determine wheth
(1)
undercapital
had
Cherrydale
been
that
any
the trial
has committed
er
court
abuse
ized; (2)
Kravitz had failed
adhere
complete
after
of discretion or whether
a
formalities; (3) there was exten
corporate
record,
and exhaustive review of
intermingling
corpora
various
sive
sense
justice.
award shocks the court’s
(4)
funds;
Appellant
used
tions’
Co.,
Trucking
Empire
Inc. Reading
See
fraud,
to perpetuate
form
a
corporate
Co.,
Anthracite
A.3d
Coal
71
938
assets
specifically,
remove
from
(Pa.Super.2013).
creditors,
Appellee.
Lu
reach
like
See
Industries, Inc.
max
Punitive
are awarded
punish
entity
person
a
“out
and/or
arguments
Appellants’
note that
alsoWe
rageous conduct.” Kirkbride v. Lisbon
are
against piercing
corporate veil
Inc.,
Contractors,
521 Pa.
A.2d
555
recitation,
self-serving
entirely on a
based
(1989)
(Second)
(citing Restatement
evidence,
particular emphasis
908(1)).
§
Torts
Conduct
considered
testimony
corporate ac-
of their
“outrageous”
where
defendant’s actions
countant,
to be not
court found
shows either “an evil motive or reckless
fact-
It
is well-settled
credible.
rights
to the
others.”
indifference
J.J.
credibility
may
determinations
finder’s
Inc.,
DeLuca
at 415-
Company,
A.3d
reviewing
long
overturned
(citation omitted).
as there is sufficient evidence
the record
support
those determinations. See
“Reckless indifference
the interests of
(2012).
others”,
Merlo,
1, 58
it is
re
619 Pa.
A.3d
or as
sometimes referred
misconduct”,
to,
means that
credibility
We
court’s
“wanton
conclude
supported by
intentionally
actor
an act of
are
the rec-
has
done
determinations
erroneous,
character, in
“manifestly
disregard
ord
are
unreasonable
con-
risk
to him or so
arbitrary
capricious
flagrantly
known
obvious that
he must
to have been aware of
trary J.J. DeLuca Com-
be taken
evidence.”
addition,
Brief,
Appellants provide
inapposite
cite
15. In
a three-
argument
non-precedential
develop
and fail
al-
case law
sentence
because CASPA
We, thus,
argument.
damages,
"penalty
as a matter
law
their
conclude this ar-
lows for
and,
event,
prohibited
awarding
gument is
waived
without
the trial court was
punitive damages.” Appellants’
law
merit.
common
it,
great
highly proper
legal
so
it
that Appellants’
as to make
conclusion
probable
harm
follow.
outrageous
conduct was
demonstrated
reckless
rights
indifference
Organi
McClellan v. Health Maintenance
Findings
others. See
Liability at
Pennsylvania,
Pa.Super.
zation
Fact —
*21
1-64; Findings
Attorneys’
(citations
Fees
(1992)
of
604 A.2d
1061
omit
Fact —
Damages
As
and
at 5-9.
soon as
ted).
.
$31,000
interim arbitration award of
was
of
a
determination
whether
against
in
Cherrydale
entered
Krav-
person’s
outrageous
actions arise
con
began
itz
a steady
persistent campaign
and
duct
of the
lies within the sound discretion
paying
to avoid
Appellee. The campaign
fact-finder and will not
disturbed on
has
nearly
that
years
continued for
and
review, provided that discretion has not
has involved not only fraudulent transfers
been
Company,
DeLuca
abused. See J.J.
above,
of assets as
but years
noted
Inc.,
appeal Pa. A.3d 103 Moreover, Appellants though even had (2014) (citations omitted). been well-aware of Branca’s involve- ment in this case
-.Our since of the- record in review this informed prior case discloses the trial court that his rep- that the trial court’s award punitive damages resentation of sufficiently Appellee non-issue award supported respect proceeding to the trial the record. We need Montgomery County Rogers, reiterate trial extensive court’s before that, findings support detailed requested fact its nevertheless Here, compensa- bench close evi- court awarded of the entire after $200,601.61 tory damages in the amount of nearly 20 Appellants’ actions over dence. $601,804.83, punitive a ra- abuse Kravitz’s years, combined with n single- comports tio of This with the 3:1. accounting forms methods corporate digit light ratio. of the circumstances rightfully owed to paying to' what avoid case above and our review detailed paints pattern a fact Appellee, present law, relevant we discern abuse outrageous picture of conduct. very infirmity discretion constitutional trial court did not that the We conclude punitive damages. award of awarding punitive abuse'its discretion damages. Appellants also argue punitive damages awarded based *22 Appellants’ respect to claim With findings its fraudulent fraud and trans punitive dam proportionality the that fer, Live, in derogation Pittsburgh Inc. damages ages compensatory violated to Servov, 423, 615 438 Pa.Super. v. 419 A.2d process, Appellants to due ac right their (1992), Pennsylvania’s Uniform Fraud United Su knowledge that States Act, §§ ulent Transfer 12 Pa.C.S.A. 5101- to a preme “yet impose has hard- Court suppoi’t, Appellants 5110. In reiterate on ratio between and-fast limitation” witnesses’, essence, testimony. their In compensatory damages. punitive Apr argue Appellants the trial court erred that Brief, pellants’ Appellants at 50. neverthe accepting interpretation their contend, any defini less without citation to facts this case. court, pronouncements by federal tive Live, Pittsburgh Superior punitive “trial court’s award punitive reversed the trial court’s award damages federal Constitution exceeds the damages concluding although after Appellants’ 1:1 al limits of a ratio.” Brief there been conduct which had fraudulent grossly at 50. misstate supported damage compensatory law. award, there had been no acts which had Supreme Court has The United States vindictive, or which been wanton had stated: disregard rights showed a wanton for the support so as an award of others identify been con-
[W]e have reluctant punitive damages. See 615 A.2d limits on the ratio crete constitutional Here,' averments, contrary Appellants’ harm, harm, to potential between a punitive- were based on deter punitive damages plaintiff- and the they acted mination that wan again impose decline We award. disregard rights ton others. bright-line punitive ratio dam- which finding supported by This amply juris- ages cannot exceed. Our award argument record. Accordingly, prudence and it has now principles without merit. demonstrate, however, that, established Fees, Penalties, Attorney’s Inter- exceeding few sin- practice, awards , est gle-digit punitive ratio between
compensatory damages, significant interest, penal- The trial court assessed degree, process.. will due satisfy ties, attorney’s as follows: fees Judgment.$200,601.61 a. Partial State Farm Mutual Automobile Insurance n 424-425, 123 pursuant Campbell, Judgment U.S. b. Interest Co. 538 - (2003) (citation (73 505(d))[ § 1513, 155 ] S.Ct. 585 CASPA P.S. L.Ed.2d omitted). Sep- Month per 1% from amount Id., (citations 30,- omitted). through April tember 502 n. CAS- 2011.$306,467.55 provides PA or litiga- “[i]f arbitration tion payment commenced to recover due Penalty on Judgment pursuant c. under this act ... arbitrator or (73 512(a)) § CASPA P.S. award, shall in addition to all dam- other
amount 1% per Sep- Month from due, a ages penalty equal to 1% per month 8,1998 through April tember amount that wrongfully with- was .$306,467.55 § held.” P.S. Attorney’s pursuant d. Costs Fees and ’ (73 512(a)(b)) § to CASPA from P.S. observed, As the trial court September through August action, instant underlying like the arbitra Í5,2007 .$273,037.65 proceeding, proceeding was “a to re Damages.$601,804.83 e. Punitive payment cover” under due CASPA. After the trial court determined piercing f. Interest shall pur- continue accrue corporate appropriate veil was suant to per at .1% order month CASPA judgment to execute May due owing, 2011 in the amount of was then final arbitration per day paid in award full. $131.90 until $200,601.61, 505(d) implicat Section Judgment against Final All Defen- *23 against Appellant ed Kravitz as owner of 30,2011: April dants as of Cherrydale and the other subcor involved TOTAL.$1,688,379.10 porations. The court’s trial calculations Damages, Sur: Order Assessment of dated properly were on based CASPA. See 73 (footnote April to case law omit- 505(d) §§ Accordingly, and 512. P.S. we ted). find error in trial court’s calculation court’s, Appellants contend that the trial penalties. and interest grant attorney’s fees, penalties and in- respect With attorney’s fees im- represent impermissible terest an modifi- court, posed by the trial the trial court’s cation the arbitration award and should of attorney’s award covers period fees not have been Appellee allowed because September after the arbitra- had not stated cause of action under issued, through August tion award was in CASPA instant Appel- case. See 2007, and those in includes incurred con- lants’ Brief at 51. They argue also with litigation. nection the instant Con- the interest should have calculated in been trary averment, to Appellants’ these fees panel’s accordance the arbitration di- not represent do a modification of the arbi- not panel’s rective and based on final tration award. award. Judgment affirmed. in 1994 CASPA was enacted abuses within building cure industry BENDER, President Judge Emeritus involving payments from owners to due LAZARUS, Judge Judge and WECHT contractors and subcontractors and “to en join this majority opinion. courage dealing among parties fair ato. Judge a concurring STABILE files construction contract.” Zimmerman v. dissenting opinion Judge in which I, Harrisburg L.P., Fudd 984 A.2d BOWES, DONOHUE, Judge Judge ' (citation omitted). (Pa.Super.2009) 500-501 SHOGANjoin. statute, Because “CÁSPA is a remedial we must accord it a Judge part liberal construction to ALLEN not take did objects effect its promote justice.” consideration decision this case. $30,913.00. paid AND contract balance After DISSENTING
CONCURRING interest, STABILE, at- compensatory damages, other BY J.: OPINION fees, torney’s costs added were insofar Majority’s1 opinion I as join balance, the arbitration award contract For liability affirms verdict. it judgment confirmed reasons, I the dam- following would vacate $200,601.61. Appellee then commenced for a new dam- ages and remand verdict judgment. this action to collect the These Judge from outside ages trial front were bifurcated between lia- proceedings County. Montgomery damages. bility The recusal issue view, my the Honorable Thomas P. damages this case concerns the County Montgomery Rogers Rogers the final Judge increased wherein denying Appel- erred of Common Pleas Appellee damages award arbitration to recuse the entire bench of lants’ motion $1,688,379.10. component A substantial County Montgomery Court of Com- of Judge of this award was the result hearing mon Pleas from his Rogers exercising discretion award This is so in this action. because the punitive damages of three times arbi- Branca, C. Judge Honorable Thomas $200,601.61 Appellee, tration award Montgomery Rogers’ colleague this, fees, attorney’s To he added addition- bench, County has substantial financial interest, penalties. statutory He al of this case outcome interest based Judge so at a time when he knew did representation Appellee. on his former Branca, judicial colleague Rogers’ do abili- I doubt While bench, County Montgomery directly verdict, impartial I ty to render a fair proportionally benefit from the size of he preside could also do believe over in the any increased award entered case. creating appear- this matter without Contrary prior statements that *24 of detrimental ance paid prior in full for his Branca had been impartial in the fair public’s faith op- Appellee, of it representation became of the circum- eration Under courts. during Judge testimony known Branca’s in case, of stances this same is true for in he was fact to judge Montgomery County of every contingent thirty-percent a fee of receive of Pleas.2 I believe Common any recovery. net ignored the in- dismissed Judge Appellants’ Rogers denied motion “appear- of dependent consideration an Appellants to recuse the basis that did of must be impropriety” ance consid- or prejudice actual bias on not establish motion. under a recusal ered proceed- these part presiding in over 12/31/08, originally Opinion, as 10. ings. This commenced Trial Court at matter any argument by Appellee rejected for an un- He that an further arbitration demand any opinion impropriety of one of opposing as of them 1. I will refer to the Majority opinion hearing based on our problematic. unanimous matter a this liability sense, affirmance of the verdict. requiring county entire recusal of the imputation the rule of bench similar assertion, Contrary Majority’s I be- whereby disqualify lawyers of a must firm all guidance, provides ample lieve this dissent of the from a if member firm is matter legal upon precedent, based to re- available doing, except pro- prohibited where from Montgomery quire entire recusal of the Coun- upon personal hibition is based interest per ty judges se bench. The number lawyer. prohibited See Rules of Profes- bench not determinative share common Conduct 1.10. sional Rather, explained, as it is the this issue. fixing in the “imputed appearance impropriety” lies the 1919 World Series.5 Many- felt at the pecuniary virtue of Branea’s inter- gambling time that bribery est a conclusion that were supports corrupting the na- country’s receive, pastime.6 or tional “cannot have received will The ABA was motivated of-Judge actions- impar- a fair- Eenesaw continue receive” Mountain Landis, accepted who job Id. Montgomery County-.' tial trial in as first of Major League commissioner Baseball serving while as a judge federal for the I the trial would reverse court’s District, Northern of-.Illinois. Major ruling the appearance impro- because League Baseball owners team appointed priety independent alone forms an basis in response Landis to the “Black bias, recusal even when actual un- . scandal, eight Sox” Chicago fairness, prejudice part is shown on the players White Sox accept- were accused of judge. a trial court I am mindful that ing professional from money gamblers to always our law has not spoken case lose the 1919 World Series the under- recusal, clarity as on the standard will dog Cincinnati Reds. A jury acquitted the discussed, Accordingly, I it find infra. eight players wrongdoing, criminal but necessary to review the evolution of the Judge Landis banned them for life “appearance of impropriety” our recusal major leagues. Judge Landis’ refusal explaining indispens- standard before to leave the drawing federal bench while why importance able this standard I large salary as baseball commissioner believe motion to- recuse the entire prompted a censure from the ABA and Montgomery County bench should have impeachment Congress.7 talk granted. been they Although strongly disapproved of History Appearance Judge Landis serving as a federal Impropriety Standard same drawing time he was- compensa mandatory “appear- avoidance of an Commissioner, as baseball’s- judicial ance impropriety” decision- detractors, Judge’s as well the United making long .history has and storied Attorney General, States were unable law,, accounts, By stan- nation. most identify any barring ethics rule judicial first was articulated as a Judge- simultaneously holding dard Landis from ABA’s standard Canons Judi- public and private employment.8 both under *25 promulgated Further, in Ethics 1924.3 The cial. there the was evidence 1924 judges Canons to avoid the Judge’s baseball his duties reminded interfered with n appearance profes- of in impropriety nonetheless, all judicial duties.9 ABA The impe- during personal Forty-Fourth sional and activities.4 The the course of An its 1921, for ABA promulgating Meeting tus this Canon proceeded the nual to pass McKoski, McKoski, 9, supra Raymond 3. See J. Disci- Judicial 6. 1922. note at pline Appearance Impropriety': the of Gets, Judge the Public Sees Is What the What 7. Landis served until as commissioner 1914, (2010). 94 Minn. L.Rev. his death in 1944. Id. 4. Id. McKoski, 9, supra 8. 1923. note 9, McKoski, supra 5. See note See at 1922. Morgan, Appearance also Peter W. Pro- Id. of Paradoxes, priety: Ethics and the Reform Blifil 593, (1992). 44 Stan. L. Rev. For- for Public criticism Justice condemning Landis indicted.16
resolution raising question about .employment re tas him engaging private while accused Court.17 salary governm appearance from federal the of virtue ceiving a the the Fortas, moved censure opinion, this was The ABA to Justice ent.10 In the ABA’s contrary to “unworthy finding his conduct be conduct it considered and, in particu to of Judicial derogatory dignity the Canons Conduct judge, office of undermining public to Bench, lar, contrary his was Can con conduct independence judic free that his fidence in the command conduct 4’s added). iary.”11 impropriety In (Emphasis appearance further from Again, response, ABA the 1924 Can response, impropriety.18 issued in. 4, can ons, encourage strengthen to ABA moved to judicial which included Canon 2, by moving 4 to Canon judges any-professional person ons Canon to avoid damage image adding impropriety perceived appearance al conduct to as enforce judge. adopted-by Canon as standard would now serve an the Code although ABA not stated in man able of conduct.19 In rule terms, again strengthen datory judge’s official was Canon “[A] advised amended substituting impropriety conduct be free “shall” “should” should impropriety.”12 appearance that the appearance eliminate doubt genesis mandatory prohibit was impropriety thus can see from the We now standard, Commentary to 2 of impropriety” ac ion.20 Canon “appearance provided ap prerequi tual mot a that “the test prejudice was Code or bias improprie pearance finding site whether would create reasonable minds ty. conduct ability judge’s perception In were the 1924 revisited Canons in judicial responsibilities carry out surrounding to a response controversy impartiality, competence is im tegrity, Supreme United Court Justice -Abe States paired.” Fortas.13 Justice Fortafe was receive $20,000 at- help activi after some deliberation and compensation foundation,14 ap- ties When the to demote the tempted Justice amendments paid, pearance guiding principle, standard to director was foundation’s a. ABA, adopted investigation rejecting approach, under by Securities -of Commission.15. Justice Fortas Rule 1.2 Model Code of Judicial Exchange provide his shall act consulting Discipline “[a] returned fee cancelled agreement promotes all in a manner that public after the director was times 10. Id. at n. 15.- Id. Id, interesting note that none other It 16. Id. convention, Pennsylvanian than a to the ABA Hampton Philadelphia, proposed L. Carson of *26 1927. 17. Id. at (cit- this resolution of See condemnation. id. Meeting Report Forty-Fourth ing . of the Annuae at 1928. 18. Id. 1, (September of the American Bar Association 1921) 61-67). 19. Id. 12. Id. at 1923. 1931. 20. Id. at
13. Id. at 1926.
14. Id. 21. Id.
135 independence, integrity, Pennsylvania Supreme confidence Court and this judiciary, impartiality repeatedly of the shall Court have the Judicial held is impropriety appearance and the of Code of avoid Conduct the standard motions, addition, recusal does impropriety.”22 impose In 5 substan Comment legal to provide judges, Rule 1.2 was “the tive duties on and does not added that standing provide anyone, including appearance impropriety test this Court, compliance to seek would or enforcement the conduct create in rea- whether of the Id. it is true Code. While that perception judge sonable minds a that the Pennsylvania’s Judicial Code of Conduct engaged' violated Code other does not rights litigants substantive -vest conduct that adversely reflects on the may only by Supreme be enforced our judge’s impartiality, honesty, tempera- Court Article 525 of ment, under the Constitution or fitness to serve'as a judge.”23 also, Commonwealth, of this it true is significant Pennsylvania’s It cur- ’ litigants right have a substantive re rent Code Judicial Conduct24 mirrors quest has litigant recusal when reason to 2, Rule 1.2 and' 5 to the Canon Comment question impartiality jurist. the Avoiding ABA appearance 2007 Code. 188, v. Casey, 528 Goodheart Pa. A.2d Pennsyl- under 2 to impropriety Canon 757, (1989), Reilly v. Southeastern mandatory. Code is This prohibi- vania’s Auth., Pennsylvania Transp. 507 Pa. further reinforced under Rule 1.2 (1985). “appear A.2d .The 1.2, Comment 5 to pro- Rule standard, while origi ance-of-impropriety” vides “shall avoid nating conduct, canons of judicial under impropriety.” Pa.Code adopted part has as a been of our substan Conduct, 1.2, Canon Rule 5. Jud. cmt. and, shown, as tive law will be ais neces can doubt, be no Accordingly, there sary process. component due of this light history, and the current status Caperton Massey v. A.T. Coal Com- Conduct, our Code Judicial Inc., pany, 556 U.S. 129 S.Ct. avoiding “impropriety” “appear- and the (2009), United States L.Ed.2d is not impropriety” only important, ance Supreme Court reviewed whether Justice mandatory also in Pennsylvania. but Virginia Brent Benjamin the West Su- Right Request The Substantíve preme of Appeals, Court received who ex- Jurist’s Recusal traordinary campaign contributions from Appellee dismiss this history chairman and officer of principal board appearance of impropriety appellant corporation, the- as irrele- the Due violated present vant resolution recu- Process Clause the Fourteenth Amend- dispute. argues Appellee sal Ju- ment when Justice denied guidelines Canons dicial serve for motion. The million contri- campaign $3 jurists and do not have the force of sub- bution to the Justice total exceeded Appellee’s Supplemental spent by supporters stantive law. amount all other .Appellee argues Brief 18. own both the Justice and Justice’s cam- Supreme § 22. Id. at 1935. 25.Article 10 vests the authority “supervisory administrative Id. at Pennsylvania. PA over courts of .Const. 10(a). V, > § art. 24. The Code Judicial Conduct has been revised, renumbered amended effective *27 1, July 2014.
136 imple- has been Virginia The Su- the Due Process Clause West paign committee. by objective that do not a mented standards Appeals reversed preme Court proof of bias. Id. require actual Under for against appellant judgment standard, found, objective this the Court vote to was 3 to reverse million. $50 Benjamin despite undertaking Justice majori- Benjamin with voted 2. Justice bias, extensive search for actual that when defense, Benjamin Justice reiter- ty. In his personal a stake in a person a with case direct, personal, substan- he had ated significant disproportionate a in- interest in the case. Id. tial, pecuniary or on a placing judge fluence a case Adopting 2252. a stan- at 129 S.Ct. a raising directing judge’s funds elec- concluded, he seemed appearances, dard is campaign when case imminent or subject to an invitation than little more pending, process is Id. due violated. at vaga- justice system the Virginia’s West 884, 129 2252. The Court S.Ct. dismissed Supreme Id. The Court day. ries process its due concerns that decision on disagreed. courts with recu- grounds flood its to the con- turning attention Before 887, 129 sal motions. Id. at S.Ct. 2252. decided, the Caper- to be issue stitutional facts presented extreme that cre- The case that, while it was first noted ton Court probability an unconstitutional ated in fair a fair trial tribunal axiomatic assuage Significantly, to fears bias. these process, most requirement due a basic further, Court, supra, pointed as noted judicial disqualification relating matters judicial imple- reforms States have Id. a constitutional do not rise to level. par- to eliminate mented implemented by the Judicial reforms tiality by adopting objective ABA’s appearance of even the states to eliminate impro- shall standard that avoid “[a] rigorous more impropriety, a standard appearance of priety impropriety.” and the of most make resolution process, than due In regard, at 129 2252. this Id. S.Ct. disputes process under due disqualification Court codes' held these conduct unnecessary. Id. at 889-90. standards integrity judi- serve máintain Clause demarks Process “The Due rule of Id. at ciary and the law. of judicial disqualifi- the outer boundaries power prerogative 2252. The S.Ct. states, Congress cations. principles a court elaborate law when course, impose rigor- free more remain end, rest, resolving upon in the disputes judicial disqualifica- for ous standards respect judgments. to its Id. accorded omitted). tion!;.]” marks (quotation Id. (citing Republican S.Ct. White, 765, 793, Party Minn. v. 536 U.S. first Supreme Court Caperton, (2002) 122 S.Ct. L.Ed.2d 694 history of its recusal cases reviewed the J., (Kennedy, concurring)). The citizen’s inquiry un- that the demonstrate relevant judgments depends respect turn objective Clause is an Process der the Due issuing court’s upon probity. absolute 877-81, Id. S.Ct. standard. is, integrity consequence, Id. “Judicial necessary found due highest order.” state interest Id. judge’s actu- inquiring into difficulties of reasons, continued, For these the Court inquiry is often a private al bias when may adopt choose States stan- A one. Id. at S.Ct. process rigorous more due dards than re- then, bias, inquiry into “judge’s own actual Id. quires. easily superintend law can not one the ” Therefore, Caperton in lieu of It thus .... Id. clear when review bias, judicial request recu- judge’s actual confronted appellate review *28 Code, sal, tion the process ju due more the held this requires than Court would or her rights rist’s examination of his conscience not confer upon par- the substantive requires process more for bias. Due power ties. Id. at 762. The to address objective exceeding standard. mini While judicial violation of Code norms was a process requirements, appear due the mal matter entirely left Supreme the adopted almost impropriety, ance Court’s supervisory constitutional authori- code,26 every judicial state in its satisfies Id. ty.28 Notwithstanding lack of any Therefore, objective requirement. 3(C) rights substantive in Canon by the is Appellee litigants while correct that do litigants, the judge Court held when a standing not have to enforce our Code conducts required self-assessment Conduct, paints Appellee Judicial too recuse, addressing when motion Can- a brush by arguing appear broad that the 3(C) provides of the some factors bear- of impropriety ance our Code under also ing upon that though evaluation. Even a part upon of our substantive law judicial discipline province remains the litigants may presenting rely which when Court, Supreme the Court was careful Pennsylvania recusal motion. Su point that, out our under substantive preme Court’s of a announcement recusal law, a an still has party right action .to Goodheart, infra, proof standard request judge where the enough appearance of impropriety party has to question impartial- reason part of is a our substantive law. ity the judge in the case before the Goodheart, Court, upon Supreme Id. court. The' Court continued: reconsideration, a motion for was asked to there, question Where is'a of the im- jus- consider whether two of the Court’s partiality Justices, or .more one. tices, as members class of the before it is the responsibili- individual Justice’s challenging compensa- a two-tiered toty make a determination conscientious system judges, partici- should have whether he or impartially she can assess in the pated where Court’s decision it was question. issues in It is to be em- justices asserted the two had direct inter- phasized that this assessment two ti- in the Participation by ests case. the two First, ered. whether Justice would justices challenged was under the Due personal have a or interest bias Process Clause of the United States Con- preclude impartial would review. Pennsylvania’s stitution and Code of Judi- personal This is a and unreviewable cial Conduct. The process challenge due jurist decision that can make. rejected, was the Court reasoned the Second, participation in whether his justices of the surplusage. votes two were give appearance matter Goodheart, Disposition 565 A.2d 761-62. 3(C) impropriety. perform high func- challenge [T]o its under Canon of the tion in “justice also the best way, was must satis- Code Judicial dis- Conduct27 fy appearance Even if justice.” missed. there a clear was viola- Caperton As of the time Judicial Conduct that instructs "[a] decided al- .., every adopted most State had American appear- shall avoid and the objective Bar Association’s standard of the impropriety.” ance of impropriety. Id. at S.Ct. 2252. earlier, Supreme 28.As noted Court de- 5, § rives authority from Article 10 of the specific prior provisions Canon Const, V, 10(a). § state PA art. constitution. challenged in can found in cur- Goodheart rent Rule 2.11 to Canon of current Code *29 138 added) pearance of impropriety (quoting (emphasis
Id. at 764
and/or
Offutt
11, 14,
in
States,
public
to undermine
confidence
tend
348 U.S.
75 S.Ct.
v. United
personal
(1954));
This
11,
judiciary.
also
is a
11
see
Common
the
99 L.Ed.
108,
Pa.
661 A.2d
únreviewable decision that
Travaglia,
v.
541
wealth
Thus,
(1995).
jurist
352,
one can see that
can make.
370
appearance of
incorporated the
Goodheart
(citation omitted) (emphasis add-
Id.
89at
part
a
sub
our
impropriety
standard
ed).29
in
repeated
The recusal standard as
in
second
of its
tier
test.
stantive law
since, contains
and cited
Abu-Jamal
ever
Supreme
with the
This is consistent
from
unexplained
a
distinction
subtle
Caperton,
ap
as the
Court’s discussion in
Supreme
pronounce-
Court’s earlier
supplies
pearance
impropriety standard
this standard in
The
ment of
Goodheart.
satisfy
objective
due
a
review
level
with no
Court cited Goodheart
Abu-Jamal
.
requirements
The trial
process
..court
explain
apparent disapproval, but did
by
disregarding
in
this standard and
erred
non-reviewability
its
transposition
focusing solely,upon actual bias.
to the first
applicable only
tier
standard —
tier of
of Goodheart —to the
second
Proper Application
Appearance
test,
ap-
Goodheart
where review
Impropriety
Standard
impropriety
is
pearance
standard
sufe-
Unfortunately,
subsequent
cases
ject
abuse
It
to an
of discretion review.
attempted to
its
Goodheart that have
cite
transposition
appears
this
is
certain
to con
have
standard
contributed
mistake,
because the evolution
judge’s
a
decision
fusion
whether
trial
approach
long standing.
is
two-tiered
subject
in
may
Notably,
review.
law,
v. Abu-
appear
‘of Commonwealth
oft-cited case
Under
substantive
Jamal,
485,
(1998), our
enough
553 Pa.
As a a motion for recusal stances. Our has established case yield initially judge’s must when to and decided self-evaluation directed present. feeing jurist-whose impartiality chal- 24, McFall, For 533 Pa. example, re lenged. considering -In recusal re- (1992), judge 617 was jurist must first a con- A.2d 707 quest, make cooperating investigators with F.B.I. seek or her scientious determination his- gifts ing judges accepting information ability impartial case in an assess the manner, promise for the F.B.I.’s di bias or interest return persohal free e vulge event jurist cooperation her in th then in the must outcome. gift she ac judge prosecution faced his or her continued consider- whether Id. cepted potential litigant. ap- case creates an involvement - (2004); v. Mel Pennsylvania commonly L.Ed.2d 736 fre Commonwealth Courts vin, 1, (Pa.Super.2014); 23 103 A.3d Com as well quently cite Abu-Jamal standard 51, (Pa.Su Flor, See, Kearney, v. 60 606 monwealth 92 A.3d e.g., v. settled. Commonwealth 763, denied, 384, 606, (2010), per.2014), appeal 627 Pa. 101 cert. 641-42 Pa. 998 A.2d Lin, (2014); 941, 2102, denied, & Co. v. 102 Rohm Haas 131 S.Ct. 179 A.3d 563 U.S. Miller, 132, (2011); (Pa.Super.2010); 149 Overland 992 A.2d 900 v. L.Ed.2d Commonwealth Enter, Partners, L.P., 333, 322, (2008); 950 A.2d v. Gladstone 597 951 A.2d 328 Com Pa. 1015, White, 642, (Pa.Super.2008); 1021 Commonwealth Pa. A.2d monwealth v. 589 910 (Pa.Su Bonds, 414, (2006); 418-19 Tharp, v. A.2d 890 657 Commonwealth denied, (2003), appeal Pa. per.2005), 588 906 cert. 574 Pa. 830 A.2d (2006). denied, A.2d S.Ct. U.S. White, judge At personal the same time the was shared F.B.I., family information from with cooperating pre- she the bench which, juvenile get potential cases her- defendant offered to siding over during pizza her prosecutors prosecuting appellees defendant incarceration. were expressed trial court also frustration argued in an appellant action/ The *30 existing applied to ability with the law as the judge’s impartiality trial to maintain expressed ease and defendant’s her intent appellees was not the influenced because into treating not to be this like a “boxed had not the judge demonstrated trial White, normal case.” 910 at “direct, substantial, 657. A.2d personal, in- pecuniary Majority30 The concluded the trial court presided,” terest in in the cases which she in denying erred the re- words, Commonwealth’s appellees in failed to dem- other - petition, reasoning trial cusal the they prejudiced. at 714. onstrate were Id. system of court’s “denouncement the very Supreme Court held circum Our the jurist impartial which an of in is one that it stances were such need reach key components appearance creates the of of it process issue due because con impropriety.” Id. at 658. court’s The trial appearance impropriety cluded the of “questionable conversation” de- compelled grant proceed alone it to new to of appearance also added fendant ings in potential view of the blatant conflict impropriety. Id. trial M' at judge. of interest of the 712. Dairush, In v. 501 Commonwealth Pa. stated, The “In integ Court for the order (1983), 459 A.2d the defendant 729 rity judiciary be compromised, we alleged judge derogatory the trial múde a judge’s have held that behavior is not about remarks defendant while the actual, required to a preju rise level judge attorney. was a district trial dice, appearance impropriety but the judge deny declined admit or added). Id. (emphasis sufficient.” statement, claiming made the had no he he appearance prejudice “The can bias Id. 732. also recollection. The court public as damaging be in confidence assured the defendant he receive a justice administration as would Supreme fair trial. Id. The Court dis- actual presence of either -of ele these con- cerned evidence was bias.and (citing ments.” Id. at 713 Commonwealth in- judge complete vinced the acted with Goodman, v. 454 Pa. A.2d Nonetheless, tegrity. Id. at 732. (1973)). expressly Court held there Court resentencing remanded for before ap no need actual prejudice; to find judge: different pearance is sufficient to warrant a trial. Id. at new There However, 714. considering circum- all the fore, possibility stances, the mere trial especially the trial ina- court’s judge may prosecutor’s treated the bility affirmatively have deny admit or way office in a so signifi- maximize her making from which remarks leniency minority lay community chances for all that was need cant impro ed to reasonably question establish could im- the court’s priety. showing Id. A partiality, largely actual bias was we feel unfettered required. sentencing judge is discretion afforded a opinion gard Justice Eakiri authored the an- to the the Commonwealth’s merits nouncing judgment in White. petition Court requesting the trial court to recuse. majority He wrote for a four-Justice with re- Id. The by one without first be allowed to be exercised.” exercised hint
better impartial- asserted his animosity appellant. judge toward Druee ity, public interview and both added).31 (emphasis Id. response petition the bench hand, in On Commonwealth the other Supreme Our Id. at 110-11. recuse. (2004), Druce, Pa. 848 A.2d judge’s denial Court affirmed the affirmed Supreme motion. recusal Id. at motion aof where court’s denial to an Associat- gave the court interview Similarly, Travaglia, the PCRA prior imposing ed writer sentence Press pe- disparaging comments about the made widely prosecution publicized petitioner’s trial: titioner after the close-of interview, legislator. state years “I it takes 11 in our am shocked that *31 claims judge some the defendant’s called an excuse to avoid judicial system to find also indicated that inter- but “strange,” anyone If deserves penalty. the death sway would public sentiment not view that die, petitioner [the these two individuals Id. case. at 106-07. handling for killing do four codefendant] and his. before immediately imposing On the bench Travaglia, for fun.” 661 A.2d at people sentence, trial court told defendant opinion addressing In 369 n. 37. an bias, illor will prejudice against he held request, judge wrote: recusal PCRA him. at 107. Id. [cjourt highly is say “to that dissatis- present system perpetual fied Supreme create
The
Court declined
to say
is not
that
activity
appellate
in light
recusal
of the
per
requiring
se rule
[cjourt
vent its
arbi-
would
frustrations
violation of Canon
ostensible
court’s
Conduct,
trarily
appellant’s] current ar-
3A(6)
giving [the
of Judicial
of the Code
guments
complete
the full
about
less than
public
pend-
comment
prohibiting
required by law.”
Id. The
ing
per
noted that a
se
attention
case.32 The Court
introspective
it could
any
dis-
court
therefore believed
rule
“remove
PCRA
would
preside
Id.
over the collateral review without
jurist.”
at 109.
cretion
“[Tjhis
creating
impropriety.
an appearance
must
continue
Commonwealth
in,
Supreme
to Id. The
Court was satisfied with
give
faith
due deference
reserve
addressing the
opinion
them to
PCRA court’s
jurists,
our
and allow
address
recuse, deeming it “thoughtful”
challenges.
petition
Their
these initial
discretion
reviewed, but
The Court therefore
may
it must
and “detailed.” Id.
of course
minority
"significant
lay
of a
of the
com-
31.
revised Code
Judicial Conduct de-
dard
impropriety
munity”
as follows:
in Darush. Pursuant
fines
described
Armor, 263
rel. Armor v.
Commonwealth ex.
appearance
impropriety
The test
(1978)
banc)
Pa.Super.
{en
398 A.2d
would
the conduct
create
rea-
whether
text,
analysis in
I
my
(plurality),
main
perception
judge
that
minds
sonable
present
of this
believe the circumstances
case
engaged in
this Code or
other con-
violated
appearance
substan-
under
adversely
judge’s
an
on the
duct
reflects
that
governing
law
recusal.
I
temperament,
tive state
do
honesty, impartiality,
or fit-
judicial adoption
“rea-
judge.
that
as a
believe
ness to serve
Conduct,
1.2,
Canon
minds” standard
Code
Jud.
Rule
sonable
Pa.Code
opinion,
elsewhere in this
cmt As noted
that result.
alter
authority
enforce
the Code of
Court has no
event,
governing public
provision
comment
In
I
Conduct.
do not
Judicial
re-
pending
has been
cases
revised
whether and
I need
address
to what
believe
of the Code of Judicial
2.10
minds”
numbered Rule
extent
"reasonable
standard
Conduct,
previous
from the
stan-
Code differs
Code
in denying
Supreme
discerned no abuse
discretion
that the
Pennsyl-
ment
Court of
petition.
promotes
recusal
vania
standard
actual
prejudice or
in reviewing
bias
pro-
foregoing,
To
our
summarize
courts
ceedings.
Opinion, 12/31/08,
Trial Court
consistently
have
held
recusal war-
10. From this the
denied Ap-
actual impropriety
ranted when
is shown
motion,
pellants’ recusal
concluding the
or,
part
jurist
appropri-
on the
when
record did not
prejudice
show
or bias or
ate, solely
impro-
when
full,
did not receive a
fair
words,
I
priety
present.
other
be-
impartial
trial.
Id.
lieve the standard set forth in Goodheart
governs
analysis,
standard is
The trial court either
these
read'
cases
grounded
history
well
and law. Abu-
, narrowly
too
or read them improperly.
Jamal
altered
Goodheart standard The issue in Municipal Publications was
I
without
but
explanation,
do
believe
the trial judge
whether
should be disquali-
change
created
substantive
Abvr-Jamal
ruling
fied from
a recusal motion when
analysis.33
Numerous cases ana-
the trial
was called' as a material
herein,
lyzed
pre-
post-Abur-Jam-
both
gave
testimony
witness
concerning his
al, support this conclusion.
own conduct. These were unique circum-
heard,
upon
stances
were
application,
Appearance
Impropriety
in this Case
*32
under the Supreme
plenary juris-
Court’s
I turn now to the trial court’s recusal
here,
diction. Unlike the issue
the Court
guid
decision
this case. The standard
emphasized it was not deciding whether
if
ing
judge
is
a
or
review
feels he
she
judge
trial
disqualified
the
be
should
from
dispose
fairly
can hear
case
presiding
underlying
over the
matter.
It
will,
prejudice,
decision
fi
be
without
that
was concerned
with
the
whether
nal
is
unless there
abuse of discretion.
an.
judge
upon
could rule
the motion. The
Goodheart, Abu-Jamal,
Reilly,
supra;
See
is, therefore, inapposite.
case
Estate,
see also In re
307 Pa.
Crawford’s
(1931).
102, 160A. 585
Publications,
Reilly, unlike Municipal
concern
prefaced
trial court
did
a motion
The
its recusal anal-
recusal. The
Publications,
ysis, citing
Reilly
Municipal
Court found
Inc. v.
the
recusal
Crawford
Pleas,
Court
still
Common
Pa.
489 standard
to be
controlling.
Craw-
of
(1985),
Reilly,
A.2d 1286
with its
the
state-
Court wrote:
ford
pending
It seems
the "final
controversy
sensible
treat
... our caselaw is
language
pertaining to
jurist's
unreviewable”
as
that
clear
decision on whether same
jurist’s personal
of his or
examination
her
(citing
is
exists
unreviewable.” Id.
Arnold
own motives and biases rather
than the
Arnold,
(Pa.Super.2004)).
847 A.2d
judge’s
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on
decision whether an
of
The Overland Court’s
on
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Arnold is
impropriety
Caperton,
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556 U.S. at
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in Arnold
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144 at 1201 n. judicial system. of the This Court. Id. 3. Pursuant Ar- integrity the mor, appeal the facing this this Court certified the theme for courts ais common Supreme Court, believing appear- that an is or fair unfair. “A tribunal either issue. impropriety precluded ance of this Court prejudice, to find actual There is need deciding per In appeal. the Id. rather, prejudice of appearance but order, Supreme curiam Court remand- grant pro- new to warrant sufficient hearing to this Court without ap- ed judge only not A should ceedings. trial Brockerman, In re 504 Pa. peal. must but also avoid impropriety avoid (1984). this, From A.2d 1016 McFall, impropriety.” appearance Supreme Court’s disap- court inferred the trial court I believe erred A.2d at 714. proval of Armor. ap- of the consideration by disregarding focusing in- impropriety pearance analysis in The its trial court erred only on whether stead by Armor as Brockerman affected sev- prejudice bias actual demonstrated First, important, most reasons. eral Judge Rogers. per binding curiam do not orders create precedent. Consumer Dis- Beneficial Supreme Not Court Has Our Vukman, count 621 Pa. Co. A.3d Disapproved Armor’s (2013). Supreme 549 n. 3 Court's Rationale in order Brockerman is authoritative court dismissed Armor believ- substantive issue that case. The Pennsylvania Supreme Court ing treating per trial court erred cu- rejected “imputed appearance impro- its rejection riam Brockerman as a order that Court re- when priety standard”35 I speculate of Amor. as to will Brockerman, Pa.Super. In re versed refusing Supreme Court’s reasons this (1984). Trial Court A.2d Court’s certification of the I appeal. be- 12/31/08, Appellee at 10.36 Opinion, , lieve, nonetheless, that the circumstances arguing subsequent ig- cases have agrees, very of Brockerman were different from held that evidence nored Armor have Second, those of Armor. as evinced bias, unfairness neces- prejudice throughout opinion, plainly Armor of a non-presiding sary the interest before apply appearance not the case to judges of all of the judge requires A rejection standard. thorough Based review same court. occurred, Amor, if even one would not be appearance recusal and law rejection of improprie- disagree. impropriety, I ty seriously It cannot standard. con- Brockerman, alleged intended, party Supreme one tended that our order, who, attorney through time per of an curiam negligence create a Superior change sea this area of law. appeal, Final- ery County readily apparent underlying how the trial has an interest It is not *35 appearance refer the of party Judge court came to The is not even a in case. the "imputed.” impropriety as For standard precedential authority case. Armor is present purposes, I difference in discern no Supreme rejected by been the and has my the to the standard from that of reference Moreover, fails to set Court. Armor forth trial court. the substantive law and bur- articulate proof applied den to be on a motion of as 36. The trial court wrote follows: recusal. of exists or is No 12/31/08, Opinion, Trial at 13. Court Judge presumed simply to exist because Montgom- of of of the Court Common Pleas
145 out, parties Supreme the trial court ly, Appellants point as the were unaware of Court, Brockerman, Judge a per after also issued Branca’s financial interest in the Materials, Highway curiam order in Inc. of Judge outcome this case until Branca’s Montgomery v. Court Pleas testimony Common on day and last the second of of of 2010, 2010 County, No. 156 MM Pa. LEX- damages Any analysis trial.37 of the (Pa. 14, 2010), where it or- 2874 Dec. IS of Appellee’s timeliness motion must there- full bench recusal dered trial fore that date. commence This would court. seem at odds with Citing Lokuta, In re 608 Pa. 11 not, It Court’s action in Brockerman. (2011), A.3d. Goodheart Reilly, however, for the same reason Brockerman Majority that it states is well settled that here; does not control neither case creates party “a seeking disqualification or recusal binding precedent. objection required] [is to raise the at the Appellants’ Timing The moment, possible earliest party Motion Recusal will consequence being suffer the time Majority argues Appellants’ The recusal Majority Opinion at 120 (empha- barred.” they motion untimely as had two op- Majority).38 sis added IWhile do they portunities to seek recusal before not quibble general this proposition, motion; liability filed their first before none of particularly helpful these cases is second, January trial in on Sep- in addressing the timeliness issue raised immediately tember Judge after Lokuta, Majority. Goodheart disagree. Branca I testified. Reilly, the recusal motions were all untimely held to moving The because the parties’ January consent at the litigants in waited until outcome of pretrial proceed their conference front filing cases Judge Rogers is before their motions. In Lo- moment for two First, kuta, trial, appellant, sought I after re- reasons. result advocate judges of one liability would not disturb the verdict from cusal of the Court of Second, proceedings. Discipline these Judicial basis bifurcated Majority proceedings. Appellee’s 37. The states that could Memorandum Judge Opposition have learned financial in- Re- Branca’s Defendants’ Motion for cusal, 10/24/07, by taking deposition informally pretrial terest his At the confer- him,” ence, (1) asking "just Majority Opinion Judge Rogers at 120- Judge disclosed Bran- Majority (2) any 21. The prior representation Appellee, fails to cite information ca’s Appellants’ possession prompt any in' that would the absence of discussion of this cases inquiry. Branca, Appellee Rogers such Judge Judge did not reveal at between January pretrial whereupon agreed Judge Rogers conference that all counsel however, Judge contingent Branca preside. retained one-third key point, could The Id. disclosure, Ap- fee any prior Judge interest the outcome of the case. absence pellants’ trial, Support testimony Law during Memorandum Branca’s Recusal, 6/24/09, the Motion at 3. Branca’s financial interest Nonetheless, outcome of case. this the Ma- jority’s permissible reliance on waiver Majority argües Appellants' 38. failure may any this Court affirm the trial court request immediately recusal after basis, including valid waiver. See right Common- testimony Branca’s awas waiver Tunnell, 345 A.2d request wealth Pa. recusal. record reveals motion, (1975) ("While question response Appellants’ of waiver has Appellee’s litigation, only objection propriety by any party this not.been raised may. Appellants’ being affirm an if it is motion before the order correct *36 Korvette, reason.’’) any any right (citing court Appellants was Gilbert v. that waived to for (1974)). request upon January pre- recusal based the 457 Pa. 327 A.2d 96 n. 5 found that Supreme 1300. The to on the court. ineligible serve’ was right trial and raise recusal this issue after counsel waived to appellant raised argument in other trial by timely responding this not to the had included not Lokuta, 11 for recusal. pre-trial requests raising grounds and for new judge’s order Goodheart, Citing the Lokuta appeal at this complete A.3d trial was to after this appellant waived Lokuta, the Court held Goodheart Although Court. Id. it the having raised earliest not speak issue for to Reilly all the timeliness . Id. opportunity. motion, provide guidance little they recusal present the grounds situation where Goodheart, they after appellants, the In in fact raised for recusal before were Court, Supreme our in an appeal lost on by trial was entered court. verdict the reconsideration, moved for application for they alleged would of two-Justices recusal Judge September Branca testified on in that case. by claim asserted' the benefit day two-day damages the last the opposition application, In the their Appellants them recusal motion trial. filed “[Ajppellant the (cid:127)appellees asserted that not Appellants did on October silent, resorting the chose to remain damages verdict before await the adverse reprehensible tactic unconscionable filing their motion. retained waiting the laying grass, until deci the sought Judge Rogers’ counsel and new raising disqualification the sion and then damage prior to the trial court’s recusal Goodheart,' only they lost.” issue if Thus, Appellants verdict. have not violat Although this at 763.39 characteriza A.2d precedent mo recusal prohibiting ed the “florid,” Supreme tion was somewhat Appellants’ after an result. tion adverse say it the charac could Court held thirty-day during their filed motion or unfair. either inaccurate terization was granted by hiatus the trial post-trial disqualifica suggesting facts Id. Since permit Appellants whether determine known when case was called were they needed a forensic accountant re was argument, the issue deemed for attorneys’ view fee invoices submitted waived. beginning Appellee Certainly, surprise revelation trial. Similarly, ap Reilly, counsel contingent Branca retained SEPTA, pellant, grounds raised recusal this case to fee the outcome interest a) eight months after the judge colleague, by his momen five gave days file decided counsel con carefully matter had to be motion, b) tous asserting numer recusal Appellants. decision to ap recusal sidered grounds for while ous new Rogers, Reilly, only A.2d at seek but this Court. recusal pear to they if lost.” quotation disqualification issue Majority’s use of from 39. The added). By indicating the (Emphasis Id. Goodheart-inexplicably adds to and .truncates moving party until the decision was waited regarding the court’s statement timeli- omitting "only if words "imminent” and Majority of a- recusal motion when ness lost”, impermissibly they Majority "Appellants] silent ... chosé remain states changes import' of this statement imminent], waiting [was until decision fact, Majority's In statement Goodheart. then'raising disqualification issue[.]” incongruent result with the facts becomes fact, fully Majority Opinion at 121. motion was in that case where above, quoted statement Goodheart appellants waited deemed waived because "[A]ppellant to remain silent provides chose was issued before court’s decision until the requesting raising then recusal. waiting the decision and ... until *37 bench, in Montgomery County priety Judge of this Branca the entire inherent case. required assuredly that has a judgment. counseled testified he one-third in interest - entirely This is case, situation distinct from a proceeds any net of in the this award evidentiary objection common that re Judge Rogers, presiding over a bench immediate quires trial, trial action afford the was responsible detérmining for the n perceived court an a opportunity correct of amount the award. that Appellee notes Moreover, error. mo filed Judge Rogers liability issued a on verdict (as any days before additional of trial arose, this before issue and the of amount none) or courtroom there were resources compensatory damages had been estab to this were devoted matter and before the through point lished arbitration. This damages. decision on court’s Under well-taken, damages but at the in phase circumstances, these I do not believe Judge Rogers action this had to determine Appellants’ motion untimely filed. extent, whether and what in his discre tion, punitive reject damages I Majority’s appropriate. also were claim that Judge Rogers’ judge loss of the ‘trial made the award of than more credibility punitive of $600,000.00 decisions and damages essentially observations may witnesses and other at trial will colleague evidence award his on Montgom prejudice to cause extreme the Appellee. County $200,000.00 bench ery more than This Appellee’s contention belied own on this damages item alone.41 In Ar of judge mor, concession another trial could we ordered the recusal entire upon decide the a trial based Montgomery County bench a where existing Rog- if Judge review record judge’s spouse had direct financial inter ers he found that himself recuse est I outcome. believe same from Appellee’s this case. Memorandum here, must judge result obtain where a has in Opposition to Defendants’ Motion a direct financial interest in the outcome of Recusal, Moreover, 10/24/07, 14.40 being a case heard one decided Majority’s applies contention colleagues. bench case a trial judge finds he or where demonstrated, As appearance of im during she must recuse course may propriety properly alone form the price proceeding. paid Such is the to be bench, judge, basis for guarantee for the a fair and the hearing Rogers Judge improp matter. preservation of public’s trust erly has dismissed consideration justice. judiciary’s administration appearance of this case Conclusion solely on Appellants produced basis conclusion, bias, unfairness, I prejudice do not believe this Court evidence can Judge Rogers’ disposition part Judge Rogers. defer to To so do Judge Rogers disregards gatekeeping recusal motion. failed á critical function impro aptly Reilly, account As courts. observed acknowledge Judge I Rogers that after va- 41. The refer- record not clear as what a recovery ral fee of considering one-third Appellee’s cated his recusal after net agreement include under Branca, between Appellee response, has maintained that client, and the referred firm. Rogers not abuse his did discretion in refus- say, Suffice it the increase in award matter, ing to recuse himself from eight more times than award arbitration Appellee objects being now to another Judge Rogers’ because of on dam- decision assigned to hear this case. ages is substantial. *38 fairness, Judge Rogers, concerning im- a col- outcome.
Questions of the trial league, Judge or bias court al- Branca’s cred- assess partiality, of justice ways affect the administration ibility and determine whether issue a system judi- can cloak the whole damages punitive substantial award suspicion and distrust. Be- cature with knowing that Branca benefit would question requests call into recusal cause upon contingent his based proportionally they fairly, raise ability to mediate in the of the award entered interest size public in which the issues important Judge Rogers. unique facts These are perceived If our courts are concerned. case, anticipate I will not biased, ability our future be unfair and any with replicate themselves untoward adjudicate public’s grievances said, in our courts. I frequency With threatened, wrongs because we will emphasize, again, that I also to once wish thing brings one liti- all lose the Rogers’ ar- ability do doubt justice our halls gants into —their impartial My rive at a fair and verdict. people’s trust trust. Without impro- analysis rests malice, are made without our decisions impropriety. priety, not actual ill-will, bias, personal interest or motive outset, I join As set forth at submitting against those to our affirming liability verdict, Majority in system judica- jurisdiction, our whole Majori- respectfully dissent ture will crumble. Judge Rogers ty’s conclusion that did not is, integrity in con- Id. at 1301. “Judicial in denying Appellant’s recusal motion. err sequence, highest a state interest at 556 U.S. Caperton, order.” (citing Republican Party DONOHUE, S.Ct. BOWES, Judges
Minn., 536 U.S. S.Ct. Concurring join this SHOGAN (Kennedy, J., concurring)). Dissenting Opinion. Majority’s with
Finally, I take issue analysis my require would
contention county entire bench when
recusal has a financial interest a case county,
pending her even in home large benches such as Alle-
counties Majority gheny Philadelphia. Opin- Pennsylvania COMMONWEALTH I ion, Majority’s 1. believe the n. and an unwarranted claim is overstated I result advocate.
exaggeration MASON, Joseph Appellant. extraordinary circum- presents This case stances, my analysis would create Pennsylvania. Superior Court The outcome blanket rule. involving judges future case motion Argued Oct. county depend still same Filed Dec. court’s facts and assessment it, in before accordance with circumstances governing In- recusal motions.
the law was a wit-
stantly, Judge Branca material trial, of this phase
ness in the significant financial interest had a
and he