                                  [J-19-2017]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


ROY H. LOMAS, SR., D/B/A ROY LOMAS          :   No. 87 MAP 2016
CARPET CONTRACTOR,                          :
                                            :   Appeal from the Order of the Superior
                    Appellee                :   Court dated December 21, 2015 at No.
                                            :   2391 EDA 2011 Affirming the Judgment
                                            :   of the Court of Common Pleas of
             v.                             :   Montgomery County, Civil Division,
                                            :   entered on August 16, 2011 at No.
                                            :   2000-05929.
JAMES B. KRAVITZ, CHERRYDALE                :
CONSTRUCTION CO., ANDORRA                   :   ARGUED: March 8, 2017
SPRINGS DEVELOPMENT, INC., AND              :
KRAVMAR, INC., F/K/A EASTERN                :
DEVELOPMENT ENTERPRISES INC.,               :
                                            :
                    Appellants              :


                                       OPINION


JUSTICE BAER                                          DECIDED: September 28, 2017
      In this appeal, the Court is asked to determine whether a trial court erred by

denying a motion to recuse the entire bench of the Court of Common Pleas of

Montgomery County. Specifically, we consider whether the moving parties waived their

recusal claim and, if not, whether the claim has merit. For the reasons set forth below,

we hold that the recusal issue was untimely presented to the trial court and, thus,

waived. Accordingly, we affirm the judgment of the Superior Court.

      The relevant background underlying this matter, which now spans more than 25

years, can be summarized as follows. Appellant James B. Kravitz (“Kravitz”) was the

sole officer, director, and shareholder of several companies known as the Andorra
Group, which included Appellants Cherrydale Construction Company (“Cherrydale”),

Andorra Springs Development, Incorporated (“Andorra Springs”), and Kravmar,

Incorporated, which was formally known as Eastern Development Enterprises,

Incorporated (“Eastern”).1   Kravitz also owned a piece of property known as the

Reserve at Lafayette Hill (“Reserve”).     Andorra Springs was formed to develop

residential housing on sections of the Reserve.       In 1993, Andorra Springs hired

Cherrydale as the general contractor to build the homes on the Reserve.         Eastern

operated as the management and payroll company for the Andorra Group.

       Appellee Roy H. Lomas, Sr., d/b/a Roy Lomas Carpet Contractor (“Lomas”) is the

proprietor of a floor covering company. On November 10, 1994, Cherrydale and Lomas

entered into a contract which required Lomas to supply and install floor covering in the

homes being built by Cherrydale. Soon thereafter, Cherrydale breached that contract

by failing to pay $30,913 to Lomas.      In January of 1995, Lomas demanded that

Cherrydale submit Lomas’ claim to binding arbitration as mandated by the parties’

contract.

       The parties arbitrated the matter, and a panel of arbitrators entered an interim

partial award in favor of Lomas, finding that Cherrydale breached the parties’ contract

and violated the Contractor and Subcontractor Payment Act, 73 P.S. §§ 501-516.

Following Kravitz’s unsuccessful attempt to have the interim award vacated, the

arbitrators issued a final award to Lomas in the amount of $200,601.61, which included

the $30,913 that Cherrydale owed to Lomas for his unpaid work, as well as costs and

fees. On September 10, 1998, judgment was entered against Cherrydale in the Court

of Common Pleas of Montgomery County. Important to the issue before this Court,


1
  We will refer to Kravitz, Cherrydale, Andorra Springs, and Eastern collectively as
“Appellants.”



                                    [J-19-2017] - 2
then-Attorney, now-Judge Thomas C. Branca, Esquire, represented Lomas throughout

the arbitration proceedings.

      Since the entry of judgment in 1998, Kravitz has actively prevented Lomas from

collecting his arbitration award by, inter alia, transferring all of the assets out of

Cherrydale to himself and other entities under his control and, as the Superior Court put

it, through “his campaign of incessant use and abuse of our civil litigation processes.” 2

Lomas v. Kravitz, 130 A.3d 107, 112 (Pa. Super. 2015). In March of 2000, Lomas

commenced the instant action against Appellants.          Then-Attorney Branca filed the

complaint on behalf of Lomas. Lomas sought to pierce the corporate veil and to hold

Kravitz personally liable for the debt Cherrydale owed to Lomas. Lomas also presented

claims of fraud and fraudulent transfers under the Pennsylvania Uniform Fraudulent

Transfers Act, 12 Pa.C.S. §§ 5101-5110. In terms of relief, Lomas asked that judgment

be entered against Appellants in the amount of $200,601.61.          He also requested

interest, costs, punitive damages, and attorneys’ fees.

      In November of 2001, then-Attorney Branca was elected to serve as a judge on

the Court of Common Pleas of Montgomery County. Prior to taking the bench, then-

Judge-Elect Branca withdrew his appearance in the matter and referred the case to

Lomas’ current counsel from the law firm of Spector, Gadon, & Rosen (“SGR”). After

several years of tedious litigation, the parties agreed to a bifurcated bench trial. The

presiding judge was the Honorable Thomas P. Rogers of the Court of Common Pleas of

Montgomery County.      Based upon the parties’ agreement, Judge Rogers first was

tasked with determining whether Appellants were liable to Lomas. The second phase of



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.



                                     [J-19-2017] - 3
trial, if necessary, would require Judge Rogers to examine whether Appellants should

be required to pay attorneys’ fees and punitive damages to Lomas.

      Appellants concede that, before trial began, the parties met with Judge Rogers to

discuss whether it was appropriate for him to preside over the trial in light of now-Judge

Branca’s previous representation of Lomas. Appellants’ Brief at 10. Appellants also

concede that the parties agreed to allow Judge Rogers to decide the matter; however,

as we discuss infra, Appellants maintain that, during these pre-trial proceedings, they

were unaware of Judge Branca’s continued financial interest in the outcome of the case

and his continuing discussions with counsel from SGR regarding at least certain

aspects of this case after he took the bench. Id. at 10-11.

      The three-day liability trial was held from January 16, 2007, through January 18,

2007. After that trial, the parties submitted proposed findings of fact and conclusions of

law. In July of 2007, Judge Rogers entered an order declaring that Appellants are liable

to Lomas. Accordingly, a bench trial on attorneys’ fees and punitive damages was

scheduled to begin in September of 2007. The first day of the trial on attorneys’ fees

and punitive damages occurred on September 4, 2007. The second and last day of the

trial was September 6, 2007.       Judge Branca was Lomas’ first witness to testify on

September 6th.

      The direct examination of Judge Branca was relatively brief and focused on the

attorneys’ fees for which Judge Branca billed Lomas when he represented Lomas in this

matter. N.T., 9/6/2007, at 3-14.    Toward the end of the direct examination, counsel for

Lomas asked Judge Branca whether he has had any communications with Lomas’

current counsel, the law firm of SGR. N.T., 9/6/2007, at 13. Judge Branca answered

the question in the affirmative and explained that the communications ordinarily involved

the location of things like documents. Id. at 13-14. According to Judge Branca, the

communications between him and SGR were informative to him, “not the other way


                                      [J-19-2017] - 4
around.” Id. at 14. Judge Branca testified that, because he referred the case to the

firm, SGR periodically updated him on the status of the case. The judge further testified

that he had not had any communications with Judge Rogers concerning the case. Id.

       Appellants’ cross examination of the judge was more extensive. Id. at 15-49.

Appellants’ counsel comprehensively questioned Judge Branca regarding the

communications that he had with SGR after the judge withdrew his appearance and

took the bench. In addition, when counsel asked Judge Branca why SGR provided him

with updates, the judge testified as follows:

       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.
Id. at 22.   In terms of the amount of a fee to which he is entitled, Judge Branca

explained that he “should get a third referral fee of the net proceeds as a fee.” Id.

Judge Branca maintained that he had not discussed the case with anyone other than

Lomas and SGR. Id. at 23.

       After several more questions and answers, counsel for Lomas objected,

contending that the line of questioning was irrelevant given that the sole issue to which

Judge Branca could testify was the amount of attorneys’ fees that he billed Lomas. Id.

at 25. A lengthy discussion then took place, during which counsel for Lomas suggested

that Appellants’ line of questioning was “a red herring” and that Appellants simply were

attempting to impugn the reputations of SGR, Judge Branca, and the trial court. Id. at

27. Lomas’ counsel also suggested that Appellants were attempting to divert attention

away from the fact that Kravitz had fraudulently transferred millions of dollars to defraud

his creditors. Id.




                                      [J-19-2017] - 5
      In due course, Lomas’ objection was overruled, and Appellants’ counsel

continued to question Judge Branca about his involvement with this case after he took

the bench. After Appellants completed their cross examination of Judge Branca, Lomas

called two more witnesses, Kravitz and Raymond F. Dovell, a certified public accountant

hired by Lomas to provide a forensic review of Kravitz and his entities.

      After Lomas rested regarding attorneys’ fees and punitive damages, Appellants

first presented the testimony of Monica Mathews Reynolds (“Reynolds”), an associate

attorney for SGR, Lomas’ counsel, as if on cross. Appellants questioned her about,

inter alia, Judge Branca’s involvement in the case.        When Lomas’ counsel again

objected, Judge Rogers asked Appellants’ counsel to explain the relevance of the line of

questioning. Id. at 104. Appellants’ counsel stated, “Judge, I think if Judge Branca had

any involvement in this case as to any participation in this case, I have some suspicion

or am suspect in some way that this case can go forward. I may have to raise that.

That’s why I’m asking.” Id. Judge Rogers allowed counsel to continue to question

Reynolds. Thereafter, Appellants called Kravitz to testify in his own defense.

      After the parties presented all of their evidence, Appellants’ counsel requested

that the record remain open to allow Appellants to have a forensic accountant examine

invoices Lomas recently provided to Appellants in support of his claim for attorneys’

fees. Id. at 120. Appellants’ counsel assured Judge Rogers that Appellants would

immediately notify the judge if they decided not to have a forensic accountant review the

invoices or if such a review proved to be fruitless. Id. at 122. Over Lomas’ objection,

Judge Rogers granted Appellants’ request, permitting them 30 days to have a forensic

accountant examine the pertinent records.        Id. at 123.   Thirty days passed, and

Appellants did not file anything.     Further, contrary to their counsel’s assurances,

Appellants did not notify Judge Rogers of whether they decided not to have a forensic

accountant review the invoices.


                                     [J-19-2017] - 6
         A scheduling conference took place on October 15, 2007, i.e., 39 days after the

last day of trial and nine days after the 30-day period expired for Appellants to explore

obtaining a forensic accountant. Appellants appeared at the hearing with new counsel

and presented Judge Rogers with a “Motion for Recusal, Transfer of Venue, or

Assignment to Out-of-County Judge” (“Recusal Motion”).         According to Appellants’

Recusal Motion, on August 31, 2007, i.e., just prior to the commencement of trial on

attorneys’ fees and punitive damages, Lomas produced for the first time redacted and

unredacted billing entries for SGR. Recusal Motion at ¶ 8. On September 4, 2007,

Appellants received unredacted copies of the billing entries, which indicated that

attorneys from SGR had consulted with Judge Branca approximately 20 times since

2002.3 Id. at ¶ 9.     Appellants noted that, during his trial testimony, Judge Branca

confirmed his continued involvement in the case and that he has a financial interest in

the outcome of the matter. Id. at ¶ 10.

         Although Appellants acknowledged that they were unaware of any bias or

prejudice against them on the part of Judge Rogers or any other judge of the Court of

Common Pleas of Montgomery County, Appellants maintained that Judge Branca’s

continued involvement and financial interest in the case created an “appearance of

impropriety” prohibited by the Code of Judicial Conduct. Id. at ¶¶ 11-12. Appellants,

therefore, requested that Judge Rogers enter an order recusing the entire bench of

Montgomery County and either assigning the case to an out-of-county judge for

purposes of a new trial on both liability and damages or transferring the case to another

county for the same purposes, which effectively would render void all of the proceedings

before Judge Rogers.



3
    Judge Branca was sworn-in during early January of 2002.



                                      [J-19-2017] - 7
       On October 18, 2007, Judge Rogers entered an order granting the Recusal

Motion. However, in a motion filed on October 22, 2007, Lomas argued that the court

should stay the October 18th order and allow him to respond to the Recusal Motion.

According to Lomas’ motion, Judge Rogers had informed the parties that Lomas would

have until October 24, 2007, to respond the Recusal Motion; yet, the judge granted the

Recusal Motion on October 18th, before Lomas could file his response. Motion for a

Stay of the October 18, 2007 Order, 10/22/2007, at ¶¶ 1-4.          Lomas then filed his

response to the Recusal Motion on October 24, 2007, and Judge Rogers held a hearing

regarding the issue on November 9, 2007.

       Judge Rogers did not act on the recusal issue again until December 31, 2008, at

which time he entered an order vacating the October 18, 2007, order. On the same

day, Judge Rogers issued a separate order denying the Recusal Motion and entering

partial judgment as to the liability phase of trial. The court awarded Lomas $200,601.61

in compensatory damages, plus statutory interest.

       Judge Rogers authored a memorandum in support of his orders. 4              In that

memorandum, the judge observed that Appellants sought an order assigning the case

to an out-of-county judge or transferring the case to another county for trial on both

liability and damages, despite the fact that, in his view, the case already had been fairly

tried on its merits. Trial Court Memorandum, 12/31/2008, at 11. The judge highlighted

that, when Appellants presented their Recusal Motion, the bifurcated trial was complete

as to liability and all damage claims, and the court had already ruled on liability, which

necessarily left intact the arbitrators’ award of $200,601.61. Thus, the only remaining

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.



                                     [J-19-2017] - 8
matter to be determined was whether Lomas was entitled to attorneys’ fees and punitive

damages. Id.

       Judge Rogers rejected Appellants’ claim that the issues surrounding Judge

Branca created an “appearance of impropriety,” reasoning that the claim failed to

provide the court with a legal basis upon which it could conclude that Appellants “cannot

receive, have not received or will not continue to receive a fair and impartial trial in

Montgomery County.” Id.     Judge Rogers pointed out that Judge Branca is not a party

to the case, and he opined that “[n]o appearance of impropriety exists or is presumed to

exist simply because a Judge of the Court of Common Pleas of Montgomery County

has an interest in the underlying case.”        Id. at 13.    Judge Rogers ended his

memorandum by explaining that the record does not demonstrate prejudice or bias

against Appellants; thus, the judge refused to allow Appellants to question the court’s

verdict.5 Id.

       Appellants attempted to appeal the matter at that point; however, the Superior

Court quashed the appeal. Appellants then petitioned this Court, asking for a stay of

the trial court proceedings and for the Court to exercise its King’s Bench power to

assume jurisdiction over the matter. Appellants also filed their motion for a stay in the

Superior Court. The Superior Court denied the motion for a stay, and this Court denied

the motion for a stay and the request that the Court exercise its King’s Bench authority.

       On April 29, 2011, Judge Rogers issued separate findings of fact and

conclusions of law pertaining to the trial on liability and compensatory damages and the

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.”).



                                     [J-19-2017] - 9
separate (bifurcated) trial on attorneys’ fees and punitive damages. The court awarded

Lomas a total of $1,688,379.10, which included nearly $602,000 in punitive damages.

Appellants filed post-trial motions, which the trial court denied. On August 16, 2011,

judgment was entered in favor of Lomas and against Appellants.

       Appellants appealed to the Superior Court, raising a number of issues regarding

the liability verdict and the assessment of attorneys’ fees and punitive damages. The

court eventually heard the matter en banc.6 The court unanimously affirmed the liability

verdict.     However, the court evenly split regarding the propriety of the trial court’s

assessment of attorneys’ fees and punitive damages.7 The split centered on whether

Judge Rogers erred by denying Appellants’ Recusal Motion.

       The opinion in support of affirming the trial court’s judgment (“OISA”) determined

that Appellants waived the recusal issue by untimely presenting it to Judge Rogers. In

reaching this determination, the OISA quoted and relied upon this Court’s decisions in

In re Lokuta, 11 A.3d 427, 437 (Pa. 2011), and Goodheart v. Casey, 565 A.2d 757, 763

(Pa. 1989), for the proposition that a “party seeking recusal or disqualification [is

required] to raise the objection at the earliest possible moment, or that party will suffer

the consequence of being time barred.”8         Lomas, 130 A.3d at 120 (emphasis in

original).

6
 Due to Judge Allen’s non-participation in the consideration of the appeal, the en banc
panel consisted of eight judges.
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”).
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.



                                      [J-19-2017] - 10
       The OISA opined that Appellants had two opportunities to seek recusal prior to

when they filed their Recusal Motion. The OISA stated that Appellants first could have

presented their Recusal Motion before the liability trial in January of 2007 when Judge

Rogers assured the parties that he could remain fair and impartial despite Judge

Branca’s previous representation of Lomas.         According to the OISA, the second

opportunity to present the recusal claim came on September 6, 2007, immediately after

Judge Branca’s testimony regarding his involvement and personal interest in the case.

Id. Instead of seeking recusal of the entire bench of Montgomery County immediately

after Judge Branca’s testimony (or earlier), the OISA observed, Appellants allowed the

damages trial to proceed to finality and “it was not until Appellants requested a post-

hearing thirty-day review of the attorneys’ bills, and the thirty-day period had passed

without Appellants filing any relevant documents, and not until the record had closed,

that newly-retained counsel appeared and filed the recusal motion.” Id. at 121. The

OISA concluded that Appellants untimely presented the Recusal Motion and, thus,

waived their recusal issue.9

       The opinion in support of reversing the trial court’s judgment (“OISR”) believed

that Judge Rogers erred by denying the Recusal Motion. The OISR began by providing

a history of the “appearance of impropriety” standard for judicial recusal and then

explaining parties’ substantive right to request the recusal of a jurist. Id. at 133-38. The

OISR also discussed the application of the “appearance of impropriety” standard to this

matter and ultimately concluded that this standard required Judge Rogers to grant, in

part, Appellants’ Recusal Motion.     According to the OISR, Judge Branca’s financial

interest in the case created an “appearance of impropriety,” which necessitated that


9
 The OISA offered a gratuitous alternative conclusion that the recusal issue lacks merit.
Lomas, 130 A.3d at 122-25.



                                     [J-19-2017] - 11
Appellants receive a new trial, in front of an out-of-county judge, on attorneys’ fees and

punitive damages.

       In addition, the OISR disagreed with the OISA’s conclusion that Appellants

waived their recusal issue by untimely presenting it to Judge Rogers. Id. at 145-47.

The OISR took the position that Appellants could not have raised the issue any earlier

than September 6, 2007, when Judge Branca testified regarding his financial interest in

the outcome of the case. Id. at 145. Regarding the law in this area, the OISR agreed

with the general proposition that a party must seek recusal at the earliest possible

moment to avoid waiving the issue; however, the OISR distinguished this case from

those relied upon by the Majority for this general proposition. Id. at 145-47.

       In this regard, the OISR opined that, in In re Lokuta, Goodheart, and Reilly, the

recusal motions were untimely filed because the moving parties presented their motions

after an adverse verdict had been entered against them. Here, however, according to

the OISR, Appellants filed their Recusal Motion before Judge Rogers entered a verdict.

Thus, in the OISR’s view, these cases do not support a conclusion that Appellants

waived their recusal issue by untimely presenting it. Id.

       In closing on this discussion, the OISR inaccurately stated that Appellants filed

their Recusal Motion during the 30-day post-trial period in which Judge Rogers

permitted the record to remain open to allow Appellants to determine whether they

needed the services of a forensic account. Id. at 146. The OISR suggested that a

decision to seek the recusal of an entire county bench requires counseled judgment and

is distinct from common evidentiary objections that require immediate action to allow the

trial court to correct an alleged error. Id. at 146-47. For these reasons, the OISR would

have mandated that Appellants receive a new trial on attorneys’ fees and punitive

damages, to be presided over by an out-of-county judge.




                                     [J-19-2017] - 12
         Appellants filed a petition for allowance of appeal, which this Court granted,

limited to the following issues:

         (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?

         (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?
Lomas v. Kravitz, 147 A.3d 517 (Pa. 2016).

         In their brief to this Court, Appellants devote a majority of their argument to the

merits of the recusal issue, i.e., whether Judge Branca’s financial interest and continued

involvement in this case constituted an “appearance of impropriety” such that the entire

bench of Montgomery County should have been recused from considering the matter.

Appellants’ Brief at 23-38. Regarding the timing of their Recusal Motion, Appellants

contend that they first learned of the full extent of Judge Branca’s continued

involvement in this matter on September 6, 2007; therefore, Appellants argue, they

could not have presented their Recusal Motion prior to that date.10 Appellants’ Brief at

39-41.


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 Court eventually considered the matter. Importantly, the Court expressly

stated, “In the case sub judice, SEPTA’s recusal motions being raised in both pre and

post-trial fashion require us to decide their timeliness.” Id. at 1300. The Court first

concluded that SEPTA waived its pre-trial recusal issue. We observed that SEPTA

offered no excuse for its eight-month delay in presenting the issue.          We further

observed that SEPTA, in fact, could not excuse its delay because SEPTA had actual

knowledge of the facts that formed the basis of its motion to recuse.11 Id.

      The Court then examined the timeliness of SEPTA’s post-trial recusal motions.

As to these motions, the Court began by stating, “Once the trial is completed with the

entry of a verdict, a party is deemed to have waived his right to have a judge

disqualified, and if he has waived that issue, he cannot be heard to complain following

an unfavorable result.” Id. (citing Commonwealth v. Corbin, 291 A.2d 307 (Pa. 1972)).

The Court explained that, to preserve these recusal issues for appeal, SEPTA was

required to make timely, specific objections at trial and raise the issues in a post-trial

motion.   Id.   In other words, recusal issues that are not presented at the earliest



11
   After the Court found that SEPTA had waived its pre-trial recusal issue, the Court
found that the trial judge’s assurances of impartiality were sufficient to justify his
dismissal of the motion. Reilly, 489 A.2d at 1300.



                                     [J-19-2017] - 16
possible moment but, instead, are raised for the first time post-trial, are time-barred and

waived.

       Thus, the law is clear. In this Commonwealth, a party must seek recusal of a

jurist at the earliest possible moment, i.e., when the party knows of the facts that form

the basis for a motion to recuse. If the party fails to present a motion to recuse at that

time, then the party’s recusal issue is time-barred and waived. See Reilly, supra; see

also Goodheart, 565 A.2d at 763 (“Where the asserted impediment [to a jurist deciding

a case] is known to the party, and that party fails to promptly direct the attention of the

jurist to that fact, the objection is waived and the party may not subsequently offer the

objection as a basis for invalidating the judgment.”); id. at 764 (“In the case, sub judice,

the facts suggesting the disqualification [of Justices of this Court] were known or should

have been known when the case was called for argument and are therefore waived.

This is so because the jurist, under such circumstances, may properly assume that the

lack of objection by the litigants reflects the appropriateness of his or her participation.”);

In re Lokuta, 11 A.3d at 437 (“Appellant did not mention Judge Sprague’s age in her

pre-trial recusal motions, nor did she move to disqualify Judges Musmanno or Bucci

before or during trial. She provides no reason for not raising either of these issues

sooner. Because appellant failed to raise these issues at the earliest possible

opportunity, they are waived.”).12

12
         We reject the position of the OISR, which Appellants adopted in this appeal, that
a litigant waives a recusal issue only if he raises it following an adverse verdict.
Instead, when a litigant is aware of the facts underlying a recusal issue pre-verdict but
waits to present the issue until after an adverse verdict, pursuant to the reasoning
underlying Reilly, supra, the litigant waives the issue on two grounds: the failure to
present the issue at the earliest possible moment, and the failure to preserve the issue
at trial by lodging a timely, specific objection regarding recusal.
We nonetheless believe it is worth noting that, when Appellants filed their Recusal
Motion, Judge Rogers already had entered an adverse verdict against them regarding
liability, which necessarily involved a negative decision concerning compensatory
(continued…)

                                      [J-19-2017] - 17
       As to the matter currently before the Court, we agree with Appellants that they

did not know of all of the facts underlying their recusal issue until Judge Branca testified

on September 6, 2007. However, Appellants clearly were aware of all of the facts

underlying the recusal issue on that date. Indeed, all of the facts Appellants averred in

in their Recusal Motion, in support of their belief that recusal was appropriate, were

disclosed on or before September 6, 2007, during the judge’s testimony.

       Moreover, as we mentioned above, during Reynolds’ September 6, 2007, trial

testimony, Judge Rogers asked Appellants’ counsel to explain why he was questioning

Reynolds about Judge Branca’s involvement in this case.             N.T., 9/6/2007, at 104.

Appellants’ counsel responded, “Judge, I think if Judge Branca had any involvement in

this case as to any participation in this case, I have some suspicion or am suspect in

some way that this case can go forward. I may have to raise that. That’s why I’m

asking.” Id. Thus, despite Appellants’ knowledge of all of the facts underlying their

eventual recusal issue after Judge Branca testified on September 6th and their

September 6th announcement that they may need to raise an issue regarding Judge

Branca’s participation in this matter, without even seeking recusal, Appellants allowed:

additional witnesses to testify at the trial on damages; the evidentiary portion of that trial

to conclude; the 30-day time period, which they requested to allow for forensic review of

records, to expire; and an additional nine days to pass following the expiration of that

30-day time period. It was not until after all of these events that Appellants finally filed a

Recusal Motion on October 15, 2007.



(…continued)
damages. Moreover, when Appellants presented their Recusal Motion, for all intents
and purposes, the die was cast as to Lomas’ eligibility to receive attorneys’ fees and
punitive damages. Thus, the OISR’s attempt at distinguishing the relevant cases from
this matter appears to be invalid.



                                      [J-19-2017] - 18
      We need not decide the exact moment in which Appellants were required to

present the recusal issue to avoid waiver. However, it is obvious that October 15, 2007,

was not “the earliest possible moment” that Appellants could have raised their

objections regarding recusal, as all of the facts underlying the recusal issue were known

to Appellants after Judge Branca testified on September 6, 2007. Accordingly, we hold

that Appellants failed to file the Recusal Motion in a timely manner and, therefore,

waived the issue.13, 14 We, thus, affirm the judgment of the Superior Court.

      Justices Todd, Dougherty and Mundy join the opinion.

      Chief Justice Saylor files a dissenting opinion.
      Justices Donohue and Wecht did not participate in the consideration or decision
      of this case.




13
  This conclusion obviates the need for the Court to examine whether the recusal issue
has merit, as any such discussion would be pure dicta.
14
   In his Dissenting Opinion, Chief Justice Saylor states that he would adopt a four-
factor test, utilized by some federal courts, to assess whether a party timely sought
recusal. The Dissent then retroactively applies that test to the facts of this case,
concluding that Appellants timely filed their Recusal Motion. Respectfully, we are
circumspect to adopt and apply a new test in this case, particularly when the parties
offer no advocacy in this regard. In our view, this matter requires the Court to determine
whether Appellants waived their recusal claim pursuant to current Pennsylvania
precedent, and we answer that question in the affirmative.



                                    [J-19-2017] - 19
