throbber

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`[J-19-2017]
`IN THE SUPREME COURT OF PENNSYLVANIA
`MIDDLE DISTRICT
`
`SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
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`
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`Appellee
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`v.
`
`No. 87 MAP 2016
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`Appeal from the Order of the Superior
`Court dated December 21, 2015 at No.
`2391 EDA 2011 Affirming the Judgment
`of the Court of Common Pleas of
`Montgomery County, Civil Division,
`entered on August 16, 2011 at No.
`2000-05929.
`
`ARGUED: March 8, 2017
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`ROY H. LOMAS, SR., D/B/A ROY LOMAS
`CARPET CONTRACTOR,
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`
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`JAMES B. KRAVITZ, CHERRYDALE
`CONSTRUCTION CO., ANDORRA
`SPRINGS DEVELOPMENT, INC., AND
`KRAVMAR, INC., F/K/A EASTERN
`DEVELOPMENT ENTERPRISES INC.,
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`
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`
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`Appellants
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`OPINION
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`
`
`JUSTICE BAER
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`DECIDED: September 28, 2017
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`In this appeal, the Court is asked to determine whether a trial court erred by
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`denying a motion to recuse the entire bench of the Court of Common Pleas of
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`Montgomery County. Specifically, we consider whether the moving parties waived their
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`recusal claim and, if not, whether the claim has merit. For the reasons set forth below,
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`we hold that the recusal issue was untimely presented to the trial court and, thus,
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`waived. Accordingly, we affirm the judgment of the Superior Court.
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`The relevant background underlying this matter, which now spans more than 25
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`years, can be summarized as follows. Appellant James B. Kravitz (“Kravitz”) was the
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`sole officer, director, and shareholder of several companies known as the Andorra
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`Group, which included Appellants Cherrydale Construction Company (“Cherrydale”),
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`Andorra Springs Development,
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`Incorporated (“Andorra Springs”), and Kravmar,
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`Incorporated, which was formally known as Eastern Development Enterprises,
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`Incorporated (“Eastern”).1 Kravitz also owned a piece of property known as the
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`Reserve at Lafayette Hill (“Reserve”). Andorra Springs was formed to develop
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`residential housing on sections of the Reserve. In 1993, Andorra Springs hired
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`Cherrydale as the general contractor to build the homes on the Reserve. Eastern
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`operated as the management and payroll company for the Andorra Group.
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`Appellee Roy H. Lomas, Sr., d/b/a Roy Lomas Carpet Contractor (“Lomas”) is the
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`proprietor of a floor covering company. On November 10, 1994, Cherrydale and Lomas
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`entered into a contract which required Lomas to supply and install floor covering in the
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`homes being built by Cherrydale. Soon thereafter, Cherrydale breached that contract
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`by failing to pay $30,913 to Lomas. In January of 1995, Lomas demanded that
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`Cherrydale submit Lomas’ claim to binding arbitration as mandated by the parties’
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`contract.
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`
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`The parties arbitrated the matter, and a panel of arbitrators entered an interim
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`partial award in favor of Lomas, finding that Cherrydale breached the parties’ contract
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`and violated the Contractor and Subcontractor Payment Act, 73 P.S. §§ 501-516.
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`Following Kravitz’s unsuccessful attempt to have the interim award vacated, the
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`arbitrators issued a final award to Lomas in the amount of $200,601.61, which included
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`the $30,913 that Cherrydale owed to Lomas for his unpaid work, as well as costs and
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`fees. On September 10, 1998, judgment was entered against Cherrydale in the Court
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`of Common Pleas of Montgomery County. Important to the issue before this Court,
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`1 We will refer to Kravitz, Cherrydale, Andorra Springs, and Eastern collectively as
`“Appellants.”
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`[J-19-2017] - 2
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`then-Attorney, now-Judge Thomas C. Branca, Esquire, represented Lomas throughout
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`the arbitration proceedings.
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`Since the entry of judgment in 1998, Kravitz has actively prevented Lomas from
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`collecting his arbitration award by, inter alia, transferring all of the assets out of
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`Cherrydale to himself and other entities under his control and, as the Superior Court put
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`it, through “his campaign of incessant use and abuse of our civil litigation processes.”2
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`Lomas v. Kravitz, 130 A.3d 107, 112 (Pa. Super. 2015). In March of 2000, Lomas
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`commenced the instant action against Appellants. Then-Attorney Branca filed the
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`complaint on behalf of Lomas. Lomas sought to pierce the corporate veil and to hold
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`Kravitz personally liable for the debt Cherrydale owed to Lomas. Lomas also presented
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`claims of fraud and fraudulent transfers under the Pennsylvania Uniform Fraudulent
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`Transfers Act, 12 Pa.C.S. §§ 5101-5110. In terms of relief, Lomas asked that judgment
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`be entered against Appellants in the amount of $200,601.61. He also requested
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`interest, costs, punitive damages, and attorneys’ fees.
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`In November of 2001, then-Attorney Branca was elected to serve as a judge on
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`the Court of Common Pleas of Montgomery County. Prior to taking the bench, then-
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`Judge-Elect Branca withdrew his appearance in the matter and referred the case to
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`Lomas’ current counsel from the law firm of Spector, Gadon, & Rosen (“SGR”). After
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`several years of tedious litigation, the parties agreed to a bifurcated bench trial. The
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`presiding judge was the Honorable Thomas P. Rogers of the Court of Common Pleas of
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`Montgomery County. Based upon the parties’ agreement, Judge Rogers first was
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`tasked with determining whether Appellants were liable to Lomas. The second phase of
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`2 The details of Kravitz’s numerous actions which have thwarted Lomas from collecting
`his arbitration award are irrelevant to the disposition of the issues before the Court;
`thus, we will not delve into all of those details.
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`[J-19-2017] - 3
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`trial, if necessary, would require Judge Rogers to examine whether Appellants should
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`be required to pay attorneys’ fees and punitive damages to Lomas.
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`Appellants concede that, before trial began, the parties met with Judge Rogers to
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`discuss whether it was appropriate for him to preside over the trial in light of now-Judge
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`Branca’s previous representation of Lomas. Appellants’ Brief at 10. Appellants also
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`concede that the parties agreed to allow Judge Rogers to decide the matter; however,
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`as we discuss infra, Appellants maintain that, during these pre-trial proceedings, they
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`were unaware of Judge Branca’s continued financial interest in the outcome of the case
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`and his continuing discussions with counsel from SGR regarding at least certain
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`aspects of this case after he took the bench. Id. at 10-11.
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`The three-day liability trial was held from January 16, 2007, through January 18,
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`2007. After that trial, the parties submitted proposed findings of fact and conclusions of
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`law. In July of 2007, Judge Rogers entered an order declaring that Appellants are liable
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`to Lomas. Accordingly, a bench trial on attorneys’ fees and punitive damages was
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`scheduled to begin in September of 2007. The first day of the trial on attorneys’ fees
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`and punitive damages occurred on September 4, 2007. The second and last day of the
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`trial was September 6, 2007. Judge Branca was Lomas’ first witness to testify on
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`September 6th.
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`The direct examination of Judge Branca was relatively brief and focused on the
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`attorneys’ fees for which Judge Branca billed Lomas when he represented Lomas in this
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`matter. N.T., 9/6/2007, at 3-14. Toward the end of the direct examination, counsel for
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`Lomas asked Judge Branca whether he has had any communications with Lomas’
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`current counsel, the law firm of SGR. N.T., 9/6/2007, at 13. Judge Branca answered
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`the question in the affirmative and explained that the communications ordinarily involved
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`the location of things like documents. Id. at 13-14. According to Judge Branca, the
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`communications between him and SGR were informative to him, “not the other way
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`[J-19-2017] - 4
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`around.” Id. at 14. Judge Branca testified that, because he referred the case to the
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`firm, SGR periodically updated him on the status of the case. The judge further testified
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`that he had not had any communications with Judge Rogers concerning the case. Id.
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`Appellants’ cross examination of the judge was more extensive. Id. at 15-49.
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`Appellants’ counsel comprehensively questioned Judge Branca
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`regarding
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`the
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`communications that he had with SGR after the judge withdrew his appearance and
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`took the bench. In addition, when counsel asked Judge Branca why SGR provided him
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`with updates, the judge testified as follows:
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`Because I had an interest in the case, I have a financial interest in the
`case. I have -- I’m entitled to a referral fee. And so to the extent that I’m
`entitled to a referral fee, I’m entitled to know something about what’s
`happening with the case, not only for my information but for purposes of
`my disclosing whatever I might need to disclose if and when I get a fee.
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`Id. at 22. In terms of the amount of a fee to which he is entitled, Judge Branca
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`explained that he “should get a third referral fee of the net proceeds as a fee.” Id.
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`Judge Branca maintained that he had not discussed the case with anyone other than
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`Lomas and SGR. Id. at 23.
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`
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`After several more questions and answers, counsel for Lomas objected,
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`contending that the line of questioning was irrelevant given that the sole issue to which
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`Judge Branca could testify was the amount of attorneys’ fees that he billed Lomas. Id.
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`at 25. A lengthy discussion then took place, during which counsel for Lomas suggested
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`that Appellants’ line of questioning was “a red herring” and that Appellants simply were
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`attempting to impugn the reputations of SGR, Judge Branca, and the trial court. Id. at
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`27. Lomas’ counsel also suggested that Appellants were attempting to divert attention
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`away from the fact that Kravitz had fraudulently transferred millions of dollars to defraud
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`his creditors. Id.
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`[J-19-2017] - 5
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`In due course, Lomas’ objection was overruled, and Appellants’ counsel
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`continued to question Judge Branca about his involvement with this case after he took
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`the bench. After Appellants completed their cross examination of Judge Branca, Lomas
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`called two more witnesses, Kravitz and Raymond F. Dovell, a certified public accountant
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`hired by Lomas to provide a forensic review of Kravitz and his entities.
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`
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`After Lomas rested regarding attorneys’ fees and punitive damages, Appellants
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`first presented the testimony of Monica Mathews Reynolds (“Reynolds”), an associate
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`attorney for SGR, Lomas’ counsel, as if on cross. Appellants questioned her about,
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`inter alia, Judge Branca’s involvement in the case. When Lomas’ counsel again
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`objected, Judge Rogers asked Appellants’ counsel to explain the relevance of the line of
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`questioning. Id. at 104. Appellants’ counsel stated, “Judge, I think if Judge Branca had
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`any involvement in this case as to any participation in this case, I have some suspicion
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`or am suspect in some way that this case can go forward. I may have to raise that.
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`That’s why I’m asking.” Id. Judge Rogers allowed counsel to continue to question
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`Reynolds. Thereafter, Appellants called Kravitz to testify in his own defense.
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`After the parties presented all of their evidence, Appellants’ counsel requested
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`that the record remain open to allow Appellants to have a forensic accountant examine
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`invoices Lomas recently provided to Appellants in support of his claim for attorneys’
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`fees. Id. at 120. Appellants’ counsel assured Judge Rogers that Appellants would
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`immediately notify the judge if they decided not to have a forensic accountant review the
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`invoices or if such a review proved to be fruitless. Id. at 122. Over Lomas’ objection,
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`Judge Rogers granted Appellants’ request, permitting them 30 days to have a forensic
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`accountant examine the pertinent records. Id. at 123. Thirty days passed, and
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`Appellants did not file anything. Further, contrary to their counsel’s assurances,
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`Appellants did not notify Judge Rogers of whether they decided not to have a forensic
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`accountant review the invoices.
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`[J-19-2017] - 6
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`A scheduling conference took place on October 15, 2007, i.e., 39 days after the
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`last day of trial and nine days after the 30-day period expired for Appellants to explore
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`obtaining a forensic accountant. Appellants appeared at the hearing with new counsel
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`and presented Judge Rogers with a “Motion for Recusal, Transfer of Venue, or
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`Assignment to Out-of-County Judge” (“Recusal Motion”). According to Appellants’
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`Recusal Motion, on August 31, 2007, i.e., just prior to the commencement of trial on
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`attorneys’ fees and punitive damages, Lomas produced for the first time redacted and
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`unredacted billing entries for SGR. Recusal Motion at ¶ 8. On September 4, 2007,
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`Appellants received unredacted copies of the billing entries, which indicated that
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`attorneys from SGR had consulted with Judge Branca approximately 20 times since
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`2002.3 Id. at ¶ 9. Appellants noted that, during his trial testimony, Judge Branca
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`confirmed his continued involvement in the case and that he has a financial interest in
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`the outcome of the matter. Id. at ¶ 10.
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`Although Appellants acknowledged that they were unaware of any bias or
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`prejudice against them on the part of Judge Rogers or any other judge of the Court of
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`Common Pleas of Montgomery County, Appellants maintained that Judge Branca’s
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`continued involvement and financial interest in the case created an “appearance of
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`impropriety” prohibited by the Code of Judicial Conduct. Id. at ¶¶ 11-12. Appellants,
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`therefore, requested that Judge Rogers enter an order recusing the entire bench of
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`Montgomery County and either assigning the case to an out-of-county judge for
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`purposes of a new trial on both liability and damages or transferring the case to another
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`county for the same purposes, which effectively would render void all of the proceedings
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`before Judge Rogers.
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`3 Judge Branca was sworn-in during early January of 2002.
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`[J-19-2017] - 7
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`On October 18, 2007, Judge Rogers entered an order granting the Recusal
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`Motion. However, in a motion filed on October 22, 2007, Lomas argued that the court
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`should stay the October 18th order and allow him to respond to the Recusal Motion.
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`According to Lomas’ motion, Judge Rogers had informed the parties that Lomas would
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`have until October 24, 2007, to respond the Recusal Motion; yet, the judge granted the
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`Recusal Motion on October 18th, before Lomas could file his response. Motion for a
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`Stay of the October 18, 2007 Order, 10/22/2007, at ¶¶ 1-4. Lomas then filed his
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`response to the Recusal Motion on October 24, 2007, and Judge Rogers held a hearing
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`regarding the issue on November 9, 2007.
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`Judge Rogers did not act on the recusal issue again until December 31, 2008, at
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`which time he entered an order vacating the October 18, 2007, order. On the same
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`day, Judge Rogers issued a separate order denying the Recusal Motion and entering
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`partial judgment as to the liability phase of trial. The court awarded Lomas $200,601.61
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`in compensatory damages, plus statutory interest.
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`Judge Rogers authored a memorandum in support of his orders.4 In that
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`memorandum, the judge observed that Appellants sought an order assigning the case
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`to an out-of-county judge or transferring the case to another county for trial on both
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`liability and damages, despite the fact that, in his view, the case already had been fairly
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`tried on its merits. Trial Court Memorandum, 12/31/2008, at 11. The judge highlighted
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`that, when Appellants presented their Recusal Motion, the bifurcated trial was complete
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`as to liability and all damage claims, and the court had already ruled on liability, which
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`necessarily left intact the arbitrators’ award of $200,601.61. Thus, the only remaining
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`4 While we will briefly summarize this memorandum, given this Court’s ultimate
`determination that Appellants waived the recusal issue, we will not provide a detailed
`analysis of the legal reasoning employed by Judge Rogers in denying the Recusal
`Motion.
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`[J-19-2017] - 8
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`matter to be determined was whether Lomas was entitled to attorneys’ fees and punitive
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`damages. Id.
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`
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`Judge Rogers rejected Appellants’ claim that the issues surrounding Judge
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`Branca created an “appearance of impropriety,” reasoning that the claim failed to
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`provide the court with a legal basis upon which it could conclude that Appellants “cannot
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`receive, have not received or will not continue to receive a fair and impartial trial in
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`Montgomery County.” Id. Judge Rogers pointed out that Judge Branca is not a party
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`to the case, and he opined that “[n]o appearance of impropriety exists or is presumed to
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`exist simply because a Judge of the Court of Common Pleas of Montgomery County
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`has an interest in the underlying case.” Id. at 13. Judge Rogers ended his
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`memorandum by explaining that the record does not demonstrate prejudice or bias
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`against Appellants; thus, the judge refused to allow Appellants to question the court’s
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`verdict.5 Id.
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`
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`Appellants attempted to appeal the matter at that point; however, the Superior
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`Court quashed the appeal. Appellants then petitioned this Court, asking for a stay of
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`the trial court proceedings and for the Court to exercise its King’s Bench power to
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`assume jurisdiction over the matter. Appellants also filed their motion for a stay in the
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`Superior Court. The Superior Court denied the motion for a stay, and this Court denied
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`the motion for a stay and the request that the Court exercise its King’s Bench authority.
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`
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`On April 29, 2011, Judge Rogers issued separate findings of fact and
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`conclusions of law pertaining to the trial on liability and compensatory damages and the
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`5 In his opinion filed pursuant to Pa.R.A.P. 1925(a), Judge Rogers noted his belief that
`Appellants waived the recusal issue by untimely raising it. See Trial Court Opinion,
`1/15/2013, at 22 n.4 (“Moreover, in light of the fact that Counsel failed to object to the
`undersigned’s continued involvement on September 6, 2007, and waited until October
`15, 2007, to present their motion, the [c]ourt opines that the issue is waived for all
`intents and purposes.”).
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`[J-19-2017] - 9
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`separate (bifurcated) trial on attorneys’ fees and punitive damages. The court awarded
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`Lomas a total of $1,688,379.10, which included nearly $602,000 in punitive damages.
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`Appellants filed post-trial motions, which the trial court denied. On August 16, 2011,
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`judgment was entered in favor of Lomas and against Appellants.
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`Appellants appealed to the Superior Court, raising a number of issues regarding
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`the liability verdict and the assessment of attorneys’ fees and punitive damages. The
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`court eventually heard the matter en banc.6 The court unanimously affirmed the liability
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`verdict. However, the court evenly split regarding the propriety of the trial court’s
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`assessment of attorneys’ fees and punitive damages.7 The split centered on whether
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`Judge Rogers erred by denying Appellants’ Recusal Motion.
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`
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`The opinion in support of affirming the trial court’s judgment (“OISA”) determined
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`that Appellants waived the recusal issue by untimely presenting it to Judge Rogers. In
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`reaching this determination, the OISA quoted and relied upon this Court’s decisions in
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`In re Lokuta, 11 A.3d 427, 437 (Pa. 2011), and Goodheart v. Casey, 565 A.2d 757, 763
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`(Pa. 1989), for the proposition that a “party seeking recusal or disqualification [is
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`required] to raise the objection at the earliest possible moment, or that party will suffer
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`the consequence of being time barred.”8 Lomas, 130 A.3d at 120 (emphasis in
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`original).
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`6 Due to Judge Allen’s non-participation in the consideration of the appeal, the en banc
`panel consisted of eight judges.
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`7 Because the court was equally divided in this manner, it necessarily affirmed the trial
`court’s judgment. See Creamer v. Twelve Common Pleas Judges, 281 A.2d 57, 58 (Pa.
`1971) (explaining that “when an appellate court is equally divided, the judgment, order
`or decree of the court below will be affirmed”).
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`8 Later in its opinion, the OISA also supported this proposition by referring to the
`Superior Court’s opinion in Reilly by Reilly v. SEPTA, 479 A.2d 973 (Pa. Super. 1984),
`and this Court’s subsequent opinion in that matter, Reilly by Reilly v. SEPTA, 489 A.2d
`1291 (Pa. 1985). Lomas, 147 A.3d at 121-22.
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`[J-19-2017] - 10
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`The OISA opined that Appellants had two opportunities to seek recusal prior to
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`when they filed their Recusal Motion. The OISA stated that Appellants first could have
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`presented their Recusal Motion before the liability trial in January of 2007 when Judge
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`Rogers assured the parties that he could remain fair and impartial despite Judge
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`Branca’s previous representation of Lomas. According to the OISA, the second
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`opportunity to present the recusal claim came on September 6, 2007, immediately after
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`Judge Branca’s testimony regarding his involvement and personal interest in the case.
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`Id. Instead of seeking recusal of the entire bench of Montgomery County immediately
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`after Judge Branca’s testimony (or earlier), the OISA observed, Appellants allowed the
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`damages trial to proceed to finality and “it was not until Appellants requested a post-
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`hearing thirty-day review of the attorneys’ bills, and the thirty-day period had passed
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`without Appellants filing any relevant documents, and not until the record had closed,
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`that newly-retained counsel appeared and filed the recusal motion.” Id. at 121. The
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`OISA concluded that Appellants untimely presented the Recusal Motion and, thus,
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`waived their recusal issue.9
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`The opinion in support of reversing the trial court’s judgment (“OISR”) believed
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`that Judge Rogers erred by denying the Recusal Motion. The OISR began by providing
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`a history of the “appearance of impropriety” standard for judicial recusal and then
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`explaining parties’ substantive right to request the recusal of a jurist. Id. at 133-38. The
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`OISR also discussed the application of the “appearance of impropriety” standard to this
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`matter and ultimately concluded that this standard required Judge Rogers to grant, in
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`part, Appellants’ Recusal Motion. According to the OISR, Judge Branca’s financial
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`interest in the case created an “appearance of impropriety,” which necessitated that
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`9 The OISA offered a gratuitous alternative conclusion that the recusal issue lacks merit.
`Lomas, 130 A.3d at 122-25.
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`[J-19-2017] - 11
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`Appellants receive a new trial, in front of an out-of-county judge, on attorneys’ fees and
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`punitive damages.
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`In addition, the OISR disagreed with the OISA’s conclusion that Appellants
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`waived their recusal issue by untimely presenting it to Judge Rogers. Id. at 145-47.
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`The OISR took the position that Appellants could not have raised the issue any earlier
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`than September 6, 2007, when Judge Branca testified regarding his financial interest in
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`the outcome of the case. Id. at 145. Regarding the law in this area, the OISR agreed
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`with the general proposition that a party must seek recusal at the earliest possible
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`moment to avoid waiving the issue; however, the OISR distinguished this case from
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`those relied upon by the Majority for this general proposition. Id. at 145-47.
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`In this regard, the OISR opined that, in In re Lokuta, Goodheart, and Reilly, the
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`recusal motions were untimely filed because the moving parties presented their motions
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`after an adverse verdict had been entered against them. Here, however, according to
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`the OISR, Appellants filed their Recusal Motion before Judge Rogers entered a verdict.
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`Thus, in the OISR’s view, these cases do not support a conclusion that Appellants
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`waived their recusal issue by untimely presenting it. Id.
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`In closing on this discussion, the OISR inaccurately stated that Appellants filed
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`their Recusal Motion during the 30-day post-trial period in which Judge Rogers
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`permitted the record to remain open to allow Appellants to determine whether they
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`needed the services of a forensic account. Id. at 146. The OISR suggested that a
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`decision to seek the recusal of an entire county bench requires counseled judgment and
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`is distinct from common evidentiary objections that require immediate action to allow the
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`trial court to correct an alleged error. Id. at 146-47. For these reasons, the OISR would
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`have mandated that Appellants receive a new trial on attorneys’ fees and punitive
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`damages, to be presided over by an out-of-county judge.
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`[J-19-2017] - 12
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`Appellants filed a petition for allowance of appeal, which this Court granted,
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`limited to the following issues:
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`(1) Whether, as a matter of law, the Montgomery County Court of
`Common Pleas should have been recused from presiding over the non-
`jury trial due to an appearance of impropriety arising from the ongoing
`participation and financial interest in the litigation by a sitting member of
`that Court?
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`(2) Whether, as a matter of law, an appearance of impropriety was created
`when a sitting member of the Montgomery County Bench personally
`participated in the litigation?
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`Lomas v. Kravitz, 147 A.3d 517 (Pa. 2016).
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`
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`In their brief to this Court, Appellants devote a majority of their argument to the
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`merits of the recusal issue, i.e., whether Judge Branca’s financial interest and continued
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`involvement in this case constituted an “appearance of impropriety” such that the entire
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`bench of Montgomery County should have been recused from considering the matter.
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`Appellants’ Brief at 23-38. Regarding the timing of their Recusal Motion, Appellants
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`contend that they first learned of the full extent of Judge Branca’s continued
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`involvement in this matter on September 6, 2007; therefore, Appellants argue, they
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`could not have presented their Recusal Motion prior to that date.10 Appellants’ Brief at
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`39-41.
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`
`10
`Lomas maintains that Appellants failed to present any discrete issue regarding
`waiver in their petition for allowance of appeal (“PAA”). Lomas’ Brief at 18-19. Lomas
`suggests that, due to this oversight, Appellants essentially have waived review by this
`Court of the OISA’s determination that they untimely presented and, therefore, waived
`the recusal issue. In short, Lomas insists that this Court cannot address waiver
`because that issue is outside of the scope of the order granting allowance of appeal. Id.
`at 18-21.
`
`We agree with Lomas that none of the questions Appellants presented in their PAA
`directly implicate the issue of whether Appellants timely presented the recusal issue.
`PAA at 5-6. However, Appellants provided a thorough argument regarding the timing of
`their Recusal Motion in their PAA, which we granted as to the merits issues set forth
`above. Id. at 27-31. Moreover, the OISA found the recusal request to be untimely and
`(continued…)
`
`
`[J-19-2017] - 13
`
`

`

`
`
`
`
`Appellants also adopt the OISR’s theory that this case is distinguishable from In
`
`re Lokuta, Goodheart, and Reilly, where the moving parties allegedly waited to seek
`
`recusal until after the adverse outcomes of their litigation were determined. Id. at 42-43.
`
`Appellants highlight that they filed their Recusal Motion years before Judge Rogers
`
`entered a final verdict in this matter. In Appellants’ view, they quickly moved for recusal
`
`after Judge Branca’s revealing testimony; thus, Appellants take the position that they
`
`did not waive the recusal issue. Id.
`
`
`
`Lomas takes the position that, in cases involving an alleged “appearance of
`
`impropriety,” waiver is particularly applicable when all of the underlying facts regarding
`
`the allegation of impropriety have been made public. Lomas’ Brief at 19. According to
`
`Lomas, when a litigant is aware of all of these facts but fails to object timely, a finding of
`
`waiver is appropriate. Id. (citing Goodheart, supra). Lomas points out that, here, all of
`
`the facts underlying Appellants’ recusal issue were known to Appellants as of when
`
`Judge Branca testified. Yet, Appellants waited 39 days to present their Recusal Motion.
`
`For these reasons, Lomas insists that Appellants untimely presented their Recusal
`
`Motion and, thus, waived the recusal issue.
`
`
`
` This Court reviews the denial of a motion to recuse for an abuse of discretion.
`
`See In re Lokuta, 11 A.3d at 435 (explaining that an “appellate court presumes judges
`
`are fair and competent, and reviews the denial of a recusal motion for an abuse of
`
`
`(…continued)
`waived. Thus, in order for this Court to address the questions for which allocatur was
`granted, we must consider the timeliness of the Recusal Motion as a threshold issue.
`We further observe that the parties have briefed for this Court their positions concerning
`the timing of the motion and whether the alleged late filing resulted in waiver. Finally,
`because we ultimately conclude that the lower court correctly resolved the issue and
`because “this Court has the ability to affirm a valid judgment or order for any reason
`appearing as of record,” Commonwealth v. Flanagan, 854 A.2d 489, 503 (Pa. 2004)
`(footnote omitted), we can address this question.
`
`
`[J-19-2017] - 14
`
`

`

`
`
`discretion”). “An abuse of discretion is not merely an error of judgment, but occurs only
`
`where the law is overridden or misapplied, or the judgment exercised is manifestly
`
`unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the
`
`evidence or the record.” Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1284
`
`(Pa. 2006).
`
`
`
` From this Court’s perspective, the law in this area is well settled: “The case law
`
`in this Commonwealth is clear and of long standing; it requires a party seeking recusal
`
`or disqualification to raise the objection at the earliest possible moment, or that party will
`
`suffer the consequence of being time barred.” Goodheart, 565 A.2d at 763 (citing Reilly
`
`by Reilly v. SEPTA, 489 A.2d 1291 (Pa. 1985)). Despite this clear pronouncement of
`
`the law, Appellants contend that this legal proposition applies only if a litigant seeks to
`
`recuse a jurist after a final adverse verdict, despite the litigant possessing all of the
`
`necessary facts to seek recusal pre-verdict. See Appellants’ Brief at 42-43 (“The Motion
`
`for Recusal was unquestionably not a ‘hedge against a losing case’ [] and the timing of
`
`this case is clearly distinguishable from the cases on which the en banc Majority relies,
`
`where litigants waited to move for recusal until after knowing the outcome.”) (citing In re
`
`Lokuta, Goodheart, and Reilly, supra). Appellants’ contention is not supported by the
`
`general statement of the law, as provided above, or by the relevant case law.
`
`
`
`By way of example,
`
`in Reilly, counsel
`
`for Southeastern Pennsylvania
`
`Transportation Authority (“SEPTA”) made an oral pretrial request that the trial judge
`
`recuse himself from the case. Reilly, 489 A.2d at 1296. Counsel alleged that the judge
`
`held a personal bias against him based upon remarks the judge made about counsel in
`
`a previous case. The trial judge invited counsel to file a written motion for recusal within
`
`five days of his oral request. Id. Counsel, however, filed his recusal motion eight
`
`months later, which fell on the eve of trial. Id. at 1296-97. The judge denied the motion.
`
`Id. at 1297.
`
`
`[J-19-2017] - 15
`
`

`

`
`
`
`
`SEPTA renewed its recusal motion post-trial. SEPTA based its post-trial motion
`
`to recuse on the trial judge’s alleged prior hostility toward its counsel and on the
`
`additional ground that opposing counsel previously represented the trial judge as part of
`
`a class of plaintiffs who sought increased compensation for Pennsylvania trial court
`
`judges. An en banc panel of the trial court denied the motion as meritless. On appeal,
`
`SEPTA renewed their recusal issue in the Superior Court and added additional grounds
`
`in support thereof - grounds that SEPTA raised for the time on appeal. Id.
`
`
`
`This C

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