J-E03004-14

                             2015 PA Super 267


ROY H. LOMAS, SR. D/B/A/ ROY LOMAS              IN THE SUPERIOR COURT OF
CARPET CONTRACTOR                                     PENNSYLVANIA

     Appellee

                   v.

JAMES B. KRAVITZ, ANDORRA SPRINGS
DEVELOPMENT, INC., CHERRYDALE
CONSTRUCTION CO., EASTERN
DEVELOPMENT ENTERPRISES, INC., AND
KRAVMAR, INC.

     Appellants                                      No. 2391 EDA 2011


            Appeal from the Judgment Entered August 16, 2011
           In the Court of Common Pleas of Montgomery County
                       Civil Division at No: 00-5929


BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., DONOHUE, J., SHOGAN,
        J., ALLEN, J., LAZARUS, J., WECHT, J., and STABILE, J.

CONCURRING AND DISSENTING OPINION BY STABILE, J.:

                                                 Filed: December 21, 2015

     I join the Majority’s1 opinion insofar as it affirms the liability verdict.

For the following reasons, I would vacate the damages verdict and remand

for a new damages trial in front of Judge from outside of Montgomery

County.

     In my view, the Honorable Thomas P. Rogers of the Montgomery

County Court of Common Pleas erred in denying Appellants’ motion to

recuse the entire bench of the Montgomery County Court of Common Pleas
1
  I will refer to the opposing opinion as the Majority opinion based on our
unanimous affirmance of the liability verdict.
                                      1
J-E03004-14


from hearing the damages trial in this action.        This is so because the

Honorable Thomas C. Branca, Judge Rogers’ colleague on the Montgomery

County bench, has a substantial financial interest in the outcome of this case

based on his former representation of Appellee. While I do not doubt Judge

Rogers’ ability to render a fair and impartial verdict, I also do not believe he

could preside over this matter without creating an appearance of impropriety

detrimental to the public’s faith in the fair and impartial operation of the

courts.    Under the circumstances of this case, the same is true for every

judge of the Montgomery County Court of Common Pleas.2 I believe the trial

court     dismissed   and   ignored   the   independent   consideration   of   an

“appearance of impropriety” that must be considered under a recusal

motion.

        This matter originally commenced as an arbitration demand by

Appellee for an unpaid contract balance of $30,913.00.              After other

compensatory damages, interest, attorney’s fees, and costs were added to

the contract balance, the arbitration award was confirmed as a judgment for

$200,601.61. Appellee then commenced this action to collect the judgment.

2
   Contrary to the Majority’s assertion, I believe this dissent provides ample
guidance, based upon available legal precedent, to require recusal of the
entire Montgomery County bench. The number of judges per se that share a
common bench is not determinative of this issue. Rather, as explained, it is
the appearance of impropriety of any one of them hearing this matter that is
problematic. In a sense, requiring recusal of the entire county bench is
similar to the rule of imputation whereby all lawyers of a firm must disqualify
from a matter if any member of the firm is prohibited from doing, except
where the prohibition is based upon a personal interest of the prohibited
lawyer. See Rules of Professional Conduct 1.10.


                                       -2-
J-E03004-14


These proceedings were bifurcated between liability and damages.               The

recusal issue in this case concerns the damages trial wherein Judge Rogers

increased   the   final   arbitration   award   of   damages   to   Appellee    to

$1,688,379.10.    A substantial component of this award was the result of

Judge Rogers exercising his discretion to award punitive damages of three

times the arbitration award of $200,601.61 to Appellee. To this, he added

attorney’s fees, additional interest, and statutory penalties. He did so at a

time when he knew Judge Branca, a judicial colleague of his on the

Montgomery County bench, would directly and proportionally benefit from

the size of any increased award entered in the case.           Contrary to prior

statements that Judge Branca had been paid in full for his prior

representation of Appellee, it became known during Judge Branca’s

testimony in the damages trial that he was in fact to receive a thirty-percent

contingent fee of any net recovery.

      Judge Rogers denied Appellants’ motion to recuse on the basis that

Appellants did not establish actual prejudice or bias on his part in presiding

over these proceedings. Trial Court Opinion, 12/31/08, at 10. He further

rejected any argument that an “imputed appearance of impropriety” by

virtue of Judge Branca’s pecuniary interest supports a conclusion that

Appellants “cannot receive, have not received or will not continue to receive”

a fair and impartial trial in Montgomery County. Id. at 11.




                                        -3-
J-E03004-14


          I would reverse the trial court’s recusal ruling because the appearance

of impropriety alone forms an independent basis for recusal even when no

actual bias, unfairness, or prejudice is shown on the part of a trial court

judge. I am mindful that our case law has not always spoken with clarity on

the standard for recusal, as will be discussed, infra. Accordingly, I find it

necessary to review the evolution of the “appearance of impropriety” in our

recusal standard before explaining the indispensable importance of this

standard and why I believe the motion to recuse the entire Montgomery

County bench should have been granted.


              History of the Appearance of Impropriety Standard

          The mandatory avoidance of an “appearance of impropriety” in judicial

decision-making has a long and storied history in our nation.           By most

accounts, this standard first was articulated as a judicial standard under the

ABA’s Canons of Judicial Ethics promulgated in 1924.3         The 1924 Canons

reminded judges to avoid the appearance of impropriety in all professional

and personal activities.4 The impetus for the ABA promulgating this Canon




3
   See Raymond J. McKoski, Judicial Discipline and the Appearance of
Impropriety: What the Public Sees Is What the Judge Gets, 94 MINN. L. REV.
1914, 1921 (2010).
4
    Id.



                                        -4-
J-E03004-14


lies in the fixing of the 1919 World Series.5    Many felt at the time that

gambling and bribery were corrupting the country’s national pastime.6 The

ABA was motivated by the actions of Judge Kenesaw Mountain Landis, who

accepted a job as the first commissioner of Major League Baseball while

serving as a federal judge for the Northern District of Illinois. Major League

Baseball team owners appointed Judge Landis in response to the “Black Sox”

scandal, in which eight Chicago White Sox players were accused of accepting

money from professional gamblers to lose the 1919 World Series to the

underdog Cincinnati Reds.     A jury acquitted the eight players of criminal

wrongdoing, but Judge Landis banned them for life from the major leagues.

Judge Landis’ refusal to leave the federal bench while drawing a large salary

as baseball commissioner prompted a censure from the ABA and talk of

impeachment in Congress.7

       Although they strongly disapproved of Judge Landis serving as a

federal judge at the same time he was drawing compensation as baseball’s

Commissioner, the Judge’s detractors, as well as the United States Attorney

General, were unable to identify any law or ethics rule barring Judge Landis



5
  See McKoski, supra note 9, at 1922. See also Peter W. Morgan, The
Appearance of Propriety: Ethics Reform and the Blifil Paradoxes, 44 STAN. L.
REV. 593, 598 (1992).
6
    McKoski, supra note 9, at 1922.
7
    Judge Landis served as commissioner until his death in 1944. Id.



                                      -5-
J-E03004-14


from simultaneously holding both public and private employment. 8 Further,

there was no evidence the Judge’s baseball duties interfered with his judicial

duties.9 The ABA nonetheless, during the course of its Forty-Fourth Annual

Meeting in 1921, proceeded to pass a resolution condemning Judge Landis

for engaging in private employment while receiving a salary from the federal

government.10        In the ABA’s opinion, this was conduct it considered

“unworthy of the office of judge, derogatory to the dignity of the Bench, and

undermining         public   confidence    in   the   independence    of   the

judiciary.”11 (Emphasis added).        In further response, the ABA issued the

1924 Canons, which included Canon 4, to encourage judges to avoid any

professional or personal conduct perceived to damage the image of a judge.

Canon 4, as adopted by the ABA in 1924, although not stated in mandatory

terms, advised, “[A] judge’s official conduct should be free from impropriety

and the appearance of impropriety.”12 We thus can see from the genesis of




8
     McKoski, supra note 9, at 1923.
9
     Id.
10
     Id. at n.49.
11
    Id. It is interesting to note that none other than a Pennsylvanian to the
ABA convention, Hampton L. Carson of Philadelphia, proposed this resolution
of condemnation. See id. (citing REPORT OF THE FORTY-FOURTH ANNUAL MEETING
OF THE AMERICAN BAR ASSOCIATION (September 1, 1921) at 61-67).

12
     Id. at 1925.



                                       -6-
J-E03004-14


the “appearance of impropriety” standard, actual prejudice or bias was not a

prerequisite to finding an appearance of impropriety.

       In 1969, the 1924 Canons were revisited in response to a controversy

surrounding United States Supreme Court Justice Abe Fortas.13          Justice

Fortas was to receive $20,000 as compensation to help the activities of a

foundation.14       When the Justice was paid, the foundation’s director was

under investigation by the Securities and Exchange Commission.15       Justice

Fortas returned his consulting fee and cancelled his agreement only after the

director was indicted.16     Public criticism of Justice Fortas accused him of

raising a question about the appearance of virtue on the Court.17 The ABA

moved to censure Justice Fortas, finding his conduct to be contrary to the

Canons of Judicial Conduct and, in particular, that his conduct was contrary

to Canon 4’s command that his conduct be free from impropriety and the

appearance of impropriety.18        Again, in response, the ABA moved to

strengthen the judicial canons by moving Canon 4 to Canon 2, and adding

that the appearance of impropriety standard would now serve as an

13
     Id. at 1926.
14
     Id.
15
     Id.
16
     Id.
17
     Id. at 1927.
18
     Id. at 1928.



                                      -7-
J-E03004-14


enforceable rule of conduct.19       In 1990, the Code again was amended to

strengthen Canon 2 by substituting “shall” for “should” to eliminate any

doubt      that   the   appearance   of   impropriety   was   now   a   mandatory

prohibition.20 The Commentary to Canon 2 of the 1990 Code provided that

“the test for appearance of impropriety is whether the conduct would create

in reasonable minds a perception that the judge’s ability to carry out judicial

responsibilities with integrity, impartiality, and competence is impaired.” 21

        In 2007, after some deliberation and attempted amendments to

demote the appearance standard to a guiding principle, the ABA, rejecting

this approach, adopted Rule 1.2 of the Model Code of Judicial Discipline to

provide “[a] judge shall act at all times in a manner that promotes public

confidence in the independence, integrity, and impartiality of the judiciary,

and shall avoid impropriety and the appearance of impropriety.” 22               In

addition, Comment 5 to Rule 1.2 was added to provide that “the test for

appearance        of impropriety is whether      the    conduct would create     in

reasonable minds a perception that the judge violated this Code or engaged




19
     Id.
20
     Id. at 1931.
21
     Id.
22
     Id. at 1935.



                                          -8-
J-E03004-14


in other conduct that reflects adversely on the judge’s honesty, impartiality,

temperament, or fitness to serve as a judge.”23

       It is significant that Pennsylvania’s current Code of Judicial Conduct24

mirrors Canon 2, Rule 1.2 and Comment 5 to the 2007 ABA Code. Avoiding

the appearance of impropriety under Canon 2 to Pennsylvania’s Code is

mandatory.      This prohibition is further reinforced under Rule 1.2 and

Comment 5 to Rule 1.2, which provides a judge “shall avoid impropriety and

the appearance of impropriety.” Pa. Code Jud. Conduct, Canon 1, Rule 1.2,

cmt. 5. Accordingly, there can be no doubt, in light of this history, and the

current status of our Code of Judicial Conduct, that avoiding “impropriety”

and the “appearance of impropriety” is not only important, but also

mandatory in Pennsylvania.


           The Substantive Right to Request a Jurist’s Recusal

       Appellee would dismiss this history of the appearance of impropriety

as irrelevant to the resolution of the present recusal dispute.       Appellee

argues that our Judicial Canons only serve as guidelines for jurists and do

not have the force of substantive law. Appellee’s Supplemental Brief at 18.

Appellee argues both the Pennsylvania Supreme Court and this Court have

repeatedly held the Judicial Code of Conduct is not the standard for recusal



23
     Id. at 1936.
24
   The Code of Judicial Conduct has been revised, renumbered and amended
effective July 1, 2014.


                                     -9-
J-E03004-14


motions, does not impose substantive legal duties on judges, and does not

provide standing to anyone, including this Court, to seek compliance or

enforcement of the Code. Id. While it is true that Pennsylvania’s Judicial

Code of Conduct does not vest substantive rights in litigants and may be

enforced only by our Supreme Court under Article 525 of the Constitution of

this Commonwealth, it also is true that litigants have a substantive right to

request recusal when a litigant has reason to question the impartiality of a

jurist.    Goodheart v. Casey, 565 A.2d 757, 762 (Pa. 1989), Reilly v.

Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291, 1298 (Pa.

1985).      The “appearance-of-impropriety” standard, while originating under

canons of judicial conduct, has been adopted as a part of our substantive

law and, as will be shown, is a necessary component of due process.

          In Caperton v. A.T. Massey Coal Company, Inc., 556 U.S. 868

(2009), the United States Supreme Court reviewed whether Justice Brent

Benjamin of the West Virginia Supreme Court of Appeals, who received

extraordinary campaign contributions from the board chairman and principal

officer of the appellant corporation, violated the Due Process Clause of the

Fourteenth Amendment when the Justice denied a recusal motion. The $3

million campaign contribution to the Justice exceeded the total amount spent

by all other supporters of the Justice and by the Justice’s own campaign

committee.      The West Virginia Supreme Court of Appeals reversed a trial

25
   Article 5, § 10 vests the Supreme Court with “supervisory administrative
authority” over the courts of Pennsylvania. PA CONST., art. V, § 10(a).


                                     - 10 -
J-E03004-14


court judgment against the appellant for $50 million. The vote to reverse

was 3 to 2.    Justice Benjamin voted with the majority.       In his defense,

Justice Benjamin reiterated he had no direct, personal, substantial, or

pecuniary interest in the case. Id. at 876.          Adopting a standard of

appearances, he concluded, seemed little more than an invitation to subject

West Virginia’s justice system to the vagaries of the day. Id. The Supreme

Court disagreed.

      Before turning its attention to the constitutional issue to be decided,

the Caperton Court first noted that, while it was axiomatic that a fair trial in

a fair tribunal is a basic requirement of due process, most matters relating

to judicial disqualification do not rise to a constitutional level. Id. Judicial

reforms implemented by the states to eliminate even the appearance of

impropriety, a standard more rigorous than due process, make resolution of

most disqualification disputes under due process standards unnecessary.

Id. at 889-90. “The Due Process Clause demarks only the outer boundaries

of judicial disqualifications. Congress and the states, of course, remain free

to impose more rigorous standards for judicial disqualification[.]”         Id.

(quotation marks omitted).

      In Caperton, the Supreme Court first reviewed the history of its

recusal cases to demonstrate that the relevant inquiry under the Due

Process Clause is an objective standard.      Id. at 877-81. The Court found

this necessary due to the difficulties of inquiring into a judge’s actual bias



                                     - 11 -
J-E03004-14


when the inquiry is often a private one. Id. at 883. A “judge’s own inquiry

into actual bias, then, is not one the law can easily superintend or review ….”

Id. Therefore, in lieu of appellate review of a judge’s actual bias, the Due

Process Clause has been implemented by objective standards that do not

require proof of actual bias. Id. Under this objective standard, the Court

found, despite Justice Benjamin undertaking an extensive search for actual

bias, that when a person with a personal stake in a case had a significant

and disproportionate influence in placing a judge on a case by raising funds

or directing a judge’s election campaign when a case is imminent or

pending, due process is violated. Id. at 884. The Court dismissed concerns

that its decision on due process grounds would flood the courts with recusal

motions.   Id. at 887.   The case presented extreme facts that created an

unconstitutional probability of bias.   Significantly, to assuage these fears

further, the Court, as noted supra, pointed to judicial reforms the States

have implemented to eliminate the appearance of partiality by adopting the

ABA’s objective standard that “[a] judge shall avoid impropriety and the

appearance of impropriety.” Id. at 888. In this regard, the Court held that

these codes of conduct serve to maintain the integrity of the judiciary and

the rule of law.   Id. at 889.    The power and prerogative of a court to

elaborate principles of law when resolving disputes rest, in the end, upon the

respect accorded to its judgments. Id. at 889 (citing Republican Party of

Minn. v. White, 536 U.S. 765, 793 (2002) (Kennedy, J., concurring)). The



                                    - 12 -
J-E03004-14


citizen’s respect for judgments depends in turn upon the issuing court’s

absolute probity. Id. “Judicial integrity is, in consequence, a state interest

of the highest order.” Id. For these reasons, the Court continued, States

may choose to adopt recusal standards more rigorous than due process

requires. Id.

      It is thus clear from Caperton that when confronted with a request for

judicial recusal, due process requires more than a jurist’s examination of his

or her conscience for bias. Due process requires a more objective standard.

While exceeding minimal due process requirements, the appearance of

impropriety, adopted by almost every state in its judicial code, 26 satisfies

this objective requirement. Therefore, while Appellee is correct that litigants

do not have standing to enforce our Code of Judicial Conduct, Appellee

paints with too broad a brush by arguing that the appearance of impropriety

under our Code also is not a part of our substantive law upon which litigants

may rely when presenting a recusal motion.        The Pennsylvania Supreme

Court’s announcement of a recusal standard in Goodheart, infra, is proof

enough that the appearance of impropriety is a part of our substantive law.

      In Goodheart, our Supreme Court, upon a motion for reconsideration,

was asked to consider whether two of the Court’s justices, as members of

the class before the Court challenging a two-tiered compensation system for

26
   As of the time Caperton was decided almost every State had adopted
the American Bar Association’s objective standard of the appearance of
impropriety. Id. at 888.



                                    - 13 -
J-E03004-14


judges, should have participated in the Court’s decision where it was

asserted the two justices had direct interests in the case. Participation by

the two justices was challenged under the Due Process Clause of the United

States Constitution and Pennsylvania’s Code of Judicial Conduct.         The due

process challenge was rejected, as the Court reasoned the votes of the two

justices were surplusage. Goodheart, 565 A.2d at 761-62. Disposition of

the challenge under Canon 3(C) of the Code of Judicial Conduct 27 also was

dismissed. Even if there was a clear violation of the Code, the Court held

this would not confer substantive rights upon the parties. Id. at 762. The

power to address judicial violation of Code norms was a matter left entirely

to   the   Supreme   Court’s   constitutional   supervisory   authority. 28   Id.

Notwithstanding the lack of any substantive rights in Canon 3(C) by the

litigants, the Court held that when a judge conducts the self-assessment

required when addressing a motion to recuse, Canon 3(C) provides some of

the factors bearing upon that evaluation.       Even though judicial discipline

remains the province of the Supreme Court, the Court was careful to point

out that, under our substantive law, a party to an action still has the right to

request the recusal of a judge where the party has reason to question the


27
   The specific provisions of the prior Canon challenged in Goodheart can
be found in current Rule 2.11 to Canon 1 of the current Code of Judicial
Conduct that instructs “[a] judge . . . shall avoid impropriety and the
appearance of impropriety.”
28
   As noted earlier, the Supreme Court derives that authority from Article 5,
§ 10 of the state constitution. PA CONST., art. V, § 10(a).


                                     - 14 -
J-E03004-14


impartiality of the judge in the case before the court.          Id.   The Court

continued:

             Where there is a question of the impartiality of one or
      more of the Justices, it is the individual Justice’s responsibility to
      make a conscientious determination whether he or she can
      impartially assess the issues in question. It is to be emphasized
      that this assessment is two tiered. First, whether the Justice
      would have a personal bias or interest which would preclude an
      impartial review.     This is a personal and unreviewable
      decision that only the jurist can make. Second, whether his
      participation in the matter would give the appearance of
      impropriety. [T]o perform its high function in the best way,
      “justice must satisfy the appearance of justice.”

Id. at 764 (emphasis added) (quoting Offut v. United States, 348 U.S. 11,

14 (1954)); see also Commonwealth v. Travaglia, 661 A.2d 352, 370

(Pa. 1995). Thus, one can see that Goodheart incorporated the appearance

of impropriety standard as a part of our substantive law in the second tier of

its test. This is consistent with the Supreme Court’s discussion in Caperton,

as the appearance of impropriety standard supplies a level of objective

review to satisfy due process requirements.           The trial court erred in

disregarding this standard and by focusing solely upon actual bias.


   Proper Application of the Appearance of Impropriety Standard

      Unfortunately, cases subsequent to Goodheart that have attempted

to cite its recusal standard have contributed to confusion on whether a trial

judge’s decision may be subject to review. Notably, in the oft-cited case of

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998), our Supreme

Court stated:



                                     - 15 -
J-E03004-14


            As a general rule, a motion for recusal is initially directed
     to and decided by the jurist whose impartiality is being
     challenged. In considering a recusal request, the jurist must
     first make a conscientious determination of his or her ability to
     assess the case in an impartial manner, free of personal bias or
     interest in the outcome. The jurist must then consider whether
     his or her continued involvement in the case creates an
     appearance of impropriety and/or would tend to undermine
     public confidence in the judiciary. This is a personal and
     unreviewable decision that only the jurist can make.

Id. at 89 (citation omitted) (emphasis added).29     The recusal standard as

repeated in Abu-Jamal and cited ever since, contains a subtle and

unexplained distinction from the Supreme Court’s earlier pronouncement of

this standard in Goodheart. The Abu-Jamal Court cited Goodheart with

no apparent disapproval, but did not explain its transposition of the non-

reviewability standard—applicable only to the first tier of Goodheart—to the

second tier of the Goodheart test, where review of the appearance of

impropriety standard is subject to an abuse of discretion review. It appears

certain that this transposition is by mistake, because the evolution of this

two-tiered approach is long standing.

29
     Pennsylvania Courts commonly and frequently cite the Abu-Jamal
standard as well settled. See, e.g., Commonwealth v. Flor, 998 A.2d
606, 641-42 (Pa. 2010), cert. denied, 131 S. Ct. 2102 (2011);
Commonwealth v. Miller, 951 A.2d 322, 328 (Pa. 2008);
Commonwealth v. White, 910 A.2d 648, 657 (Pa. 2006);
Commonwealth v. Tharp, 830 A.2d 519, 534 (Pa. 2003), cert. denied, 541
U.S. 1045 (2004); Commonwealth v. Melvin, 103 A.3d 1, 23 (Pa. Super.
2014); Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa. Super. 2014),
appeal denied, 101 A.3d 102 (Pa. 2014); Rohm & Hass Co. v. Lin, 992
A.2d 132, 149 (Pa. Super. 2010); Overland Enter. v. Gladstone
Partners, L.P., 950 A.2d 1015, 1021 (Pa. Super. 2008); Commonwealth
v. Bonds, 890 A.2d 414, 418-19 (Pa. Super. 2005), appeal denied, 906
A.2d 537 (Pa. 2006).


                                    - 16 -
J-E03004-14


       Under our substantive law, the appearance of impropriety alone is

enough to warrant recusal under appropriate circumstances. Our case law

has    established   that   a    judge’s      self-evaluation    must   yield    when     an

appearance of impropriety is present.            For example, in In re McFall, 617

A.2d    707   (Pa.   1992),     the   trial    judge   was      cooperating     with   F.B.I.

investigators seeking information on judges accepting gifts in return for the

F.B.I.’s promise to divulge her cooperation in the event the judge faced

prosecution for a gift she accepted from a potential litigant. Id. at 711. At

the same time the trial judge was cooperating with the F.B.I., she was

presiding over cases in which her potential prosecutors were prosecuting the

appellees in an action.         The appellant argued the trial judge’s ability to

maintain impartiality was not influenced because the appellees had not

demonstrated the trial judge had a “direct, personal, substantial, pecuniary

interest in the cases in which she presided,” or in other words, appellees

failed to demonstrate they were prejudiced. Id. at 714.

       Our Supreme Court held the circumstances were such that it need not

reach the issue of due process because it concluded the appearance of

impropriety alone compelled it to grant new proceedings in view of the

blatant potential conflict of interest of the trial judge. Id. at 712. The Court

stated, “In order for the integrity of the judiciary to be compromised, we

have held that a judge’s behavior is not required to rise to a level of actual

prejudice, but the appearance of impropriety is sufficient.”                             Id.



                                           - 17 -
J-E03004-14


(emphasis added).      “The appearance of bias or prejudice can be as

damaging to public confidence in the administration of justice as would be

the actual presence of either of these elements.”                 Id. at 713 (citing

Commonwealth v. Goodman, 311 A.2d 652, 654 (Pa. 1973)). The Court

expressly held there is no need to find actual prejudice; the appearance of

impropriety is sufficient to warrant a new trial. Id. at 714. Therefore, the

mere possibility that the trial judge may have treated the prosecutor’s office

in a way so as to maximize her chances for leniency was all that was needed

to establish the appearance of impropriety.         Id.   A showing of actual bias

was not required.

      In White, the judge shared personal family information from the

bench with a juvenile defendant and offered to get the defendant pizza

during her incarceration. The trial court also expressed frustration with the

existing law as applied to the defendant’s case and expressed her intent not

to be “boxed into treating this like a normal case.” White, 910 A.2d at 657.

The   Majority30    concluded     the    trial   court    erred    in   denying    the

Commonwealth’s      recusal     petition,   reasoning     that    the   trial   court’s

“denouncement of the very system in which an impartial jurist is one of the

key components creates the appearance of impropriety.” Id. at 658. The




30
   Justice Eakin authored the opinion announcing the judgment of the Court
in White. He wrote for a four-Justice majority with regard to the merits of
the Commonwealth’s petition requesting the trial court to recuse.


                                        - 18 -
J-E03004-14


trial court’s “questionable conversation” with the defendant also added to

the appearance of impropriety. Id.

       In Commonwealth v. Darush, 459 A.2d 727, 729 (Pa. 1983), the

defendant alleged the trial judge made derogatory remarks about the

defendant while the judge was a district attorney.       The trial court judge

declined to admit or deny that he made the statement, claiming he had no

recollection.   Id. at 732.   The court also assured the defendant he would

receive a fair trial. Id. The Supreme Court discerned no evidence of bias

and was convinced the judge acted with complete integrity. Id. at 729, 732.

Nonetheless, the Court remanded for resentencing before a different judge:

             However, considering all the circumstances, especially the
       trial court’s inability to affirmatively admit or deny making
       remarks from which a significant minority of the lay
       community could reasonably question the court’s impartiality,
       we feel the largely unfettered sentencing discretion afforded a
       judge is better exercised by one without hint of animosity toward
       appellant.

Id. at 732 (emphasis added).31



31
     The revised Code of Judicial Conduct defines impropriety as follows:

              The test for appearance of impropriety is whether the
       conduct would create in reasonable minds a perception that the
       judge violated this Code or engaged in other conduct that
       reflects adversely on the judge’s honesty, impartiality,
       temperament, or fitness to serve as a judge.

Pa. Code Jud. Conduct, Canon 1, Rule 1.2, cmt 5. As noted elsewhere in
this opinion, this Court has no authority to enforce the Code of Judicial
Conduct. In any event, I do not believe I need to address whether and to
what extent the “reasonable minds” standard of the Code differs from the
previous Code standard of a “significant minority of the lay community”


                                     - 19 -
J-E03004-14


      On the other hand, in Commonwealth v. Druce, 848 A.2d 104 (Pa.

2004), our Supreme Court affirmed the trial court’s denial of a recusal

motion where the court gave an interview to an Associated Press writer prior

to imposing sentence in a widely publicized prosecution of a state legislator.

In that interview, the judge called some of the defendant’s claims “strange,”

but also indicated in that interview that public sentiment would not sway his

handling of the case.    Id. at 106-07.       On the bench immediately before

imposing sentence, the trial court told the defendant he held no bias,

prejudice or ill will against him. Id. at 107.

      The Supreme Court declined to create a per se rule requiring recusal in

light of the trial court’s ostensible violation of Canon 3A(6) of the Code of

Judicial Conduct, prohibiting public comment about a pending case. 32     The

Court noted that a per se rule would “remove any introspective discretion

from the jurist.”   Id. at 109.     “[T]his Commonwealth must continue to

reserve faith in, and give due deference to our jurists, and allow them to

address these initial challenges. Their discretion may of course be reviewed,

but it must first be allowed to be exercised.” Id. The trial judge in Druce



described in Darush. Pursuant to Commonwealth ex. rel. Armor v.
Armor, 398 A.2d 173 (Pa. Super. 1978) (en banc) (plurality), and my
analysis in the main text, I believe the circumstances of this case present an
appearance of impropriety under substantive state law governing recusal. I
do not believe that a judicial adoption of the “reasonable minds” standard of
the Code would alter that result.
32
    The provision governing public comment on pending cases has been
revised and renumbered as Rule 2.10 of the Code of Judicial Conduct.


                                     - 20 -
J-E03004-14


asserted his impartiality, both in the public interview and from the bench in

response to the petition to recuse.     Id. at 110-11.     Our Supreme Court

affirmed the judge’s denial of the recusal motion. Id. at 111.

      Similarly, in Travaglia, the PCRA judge made disparaging comments

about the petitioner after the close of petitioner’s trial: “I am shocked that it

takes 11 years in our judicial system to find an excuse to avoid the death

penalty. If anyone deserves to die, these two individuals [the petitioner and

his codefendant] do for killing four people for fun.” Travaglia, 661 A.2d at

369 n.37.   In an opinion addressing the recusal request, the PCRA judge

wrote: “to say that the [c]ourt is highly dissatisfied with the present system

of perpetual appellate activity is not to say that the [c]ourt would vent its

frustrations by arbitrarily giving [the appellant’s] current arguments less

than the full and complete attention required by law.” Id. The PCRA court

therefore believed it could preside over the collateral review without creating

an appearance of impropriety. Id. The Supreme Court was satisfied with

the PCRA court’s opinion addressing the petition to recuse, deeming it

“thoughtful” and “detailed.” Id. The Court therefore discerned no abuse of

discretion in denying the recusal petition.

      To summarize the foregoing, our courts have consistently held that

recusal is warranted when actual impropriety is shown on the part of a jurist

or, when appropriate, solely when an appearance of impropriety is present.

In other words, I believe the standard set forth in Goodheart governs our



                                     - 21 -
J-E03004-14


analysis, and that standard is well grounded in history and law. Abu-Jamal

altered the Goodheart standard without explanation, but I do not believe

Abu-Jamal created a substantive change to the analysis.33 Numerous cases

analyzed herein, both pre- and post-Abu-Jamal, support this conclusion.


                 Appearance of Impropriety in this Case

      I turn now to the trial court’s recusal decision in this case.         The

standard guiding our review is if a judge feels he or she can hear and

dispose of a case fairly and without prejudice, that decision will be final

unless there is an abuse of discretion. See Reilly, Goodheart, Abu-Jamal,

supra; see also In re Crawford’s Estate, 160 A. 585 (Pa. 1931).

33
    It seems sensible to treat the “final and unreviewable” language as
pertaining to the jurist’s personal examination of his or her own motives and
biases rather than the judge’s decision on whether an appearance of
impropriety exists. See Caperton, 566 U.S. at 883 (“The difficulties of
inquiring into actual bias, and the fact that the inquiry is often a private one,
simply underscore the need for objective rules.”).

Nonetheless, at least one three-judge panel of this Court has treated a trial
court’s decision on the appearance of impropriety as unreviewable.
Overland, 950 A.2d at 1021. The Overland Court wrote, “As to the
question of whether the specter of the appearance of judicial impropriety
was raised by the nature of the pending controversy . . . our caselaw is
clear that a jurist’s decision on whether same exists is unreviewable.” Id.
(citing Arnold v. Arnold, 847 A.2d 674, 681 (Pa. Super. 2004)). The
Overland Court’s reliance on Arnold is misplaced. The appellant in Arnold
argued the trial court’s rulings against him evinced the court’s bias. Arnold,
847 A.2d at 680. This Court merely held that adverse rulings alone are not
evidence of bias, especially where those rulings were not legally erroneous.
Id. at 681. The circumstances of Arnold are therefore distinct from
Overland and from the matter on appeal.              I would disapprove the
Overland panel’s statement on the reviewability of the appearance of
impropriety.



                                     - 22 -
J-E03004-14


      The     trial   court    prefaced   its   recusal   analysis,   citing   Municipal

Publications, Inc., v. Court of Common Pleas, 489 A.2d 1286 (Pa.

1986), and Reilly, with             its statement that the        Supreme       Court of

Pennsylvania promotes the standard of actual prejudice or bias in reviewing

recusal proceedings.          Trial Court Opinion, 12/31/08, at 10.       From this the

trial court denied Appellants’ recusal motion, concluding the record did not

show prejudice or bias or that Appellants did not receive a full, fair and

impartial trial. Id.

      The trial court either read these cases too narrowly or read them

improperly.     The issue in Municipal Publications was whether the trial

judge should be disqualified from ruling on a recusal motion when the trial

judge was called as a material witness and gave testimony concerning his

own conduct.          These were unique circumstances that were heard, upon

application, under the Supreme Court’s plenary jurisdiction. Unlike the issue

here, the Court emphasized it was not deciding whether the trial judge

should be disqualified from presiding over the underlying matter.                 It was

concerned only with whether the trial judge could rule upon the motion. The

case is, therefore, inapposite.

      Reilly, unlike Municipal Publications, did concern a motion for

recusal. The Reilly Court found the Crawford recusal standard still to be

controlling. In Crawford the Court wrote:

            The proper practice on a plea of prejudice is to address an
      application by petition to the judge before whom the proceedings


                                          - 23 -
J-E03004-14


      are being tried. He may determine the question in the first
      instance, and ordinarily his disposition of it will not be
      disturbed unless there is an abuse of discretion.

             Due consideration should be given by him to the fact
      that the administration of justice should be beyond the
      appearance of unfairness. But, while the mediation of courts
      is based upon the principle of judicial impartiality,
      disinterestedness, and fairness pervading the whole system of
      judicature, so that courts may as near as possible be above
      suspicion, there is, on the other side, an important issue at
      stake; that is, that causes may not be unfairly prejudiced,
      unduly delayed, or discontent created through unfounded
      charges of prejudice or unfairness made against the judge
      in the trial of a cause. It is of great importance to the
      administration of justice that such should not occur. If the
      judge feels that he can hear and dispose of the case fairly
      and without prejudice, his decision will be final unless
      there is an abuse of discretion. This must be so for the
      security of the bench and the successful administration of
      justice. Otherwise, unfounded and ofttimes malicious charges
      made during the trial by bold and unscrupulous advocates might
      be fatal to a cause, or litigation might be unfairly and improperly
      held up awaiting the decision of such a question or the
      assignment of another judge to try the case [].

              When a charge of disqualification is made against a
      trial or hearing judge, the party must produce evidence
      which has a tendency to show bias, prejudice or
      unfairness. To sustain the charge, the exceptant is not limited
      to the instant case, but he may show personal ill will to client or
      counsel, or temperamental prejudice on the particular class of
      litigation involved, or any other recognized ground.

Crawford, 160 A. at 587 (emphasis added). The Crawford Court’s analysis

of the interplay between avoiding the appearance of unfairness (or

impropriety) while affording appropriate deference to jurists remains

prescient.   It did not hold, as the trial court suggests, that review for an

appearance of impropriety may be dispensed with so long as the record did




                                    - 24 -
J-E03004-14


not show prejudice or bias or that Appellants did not receive a full, fair and

impartial trial.

      Turning now to the circumstances of the instant appeal, the record

reflects the following exchange between Appellants’ counsel and Judge

Branca on the second and final day of the damages trial that prompted the

recusal issue:

            Q.    You mentioned     you were     given updates     [from
      Appellee’s counsel]?

             A.    Yeah.

             Q.    And what were the reasons for these updates?

             A.    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 also for purposes of my
      disclosing whatever I might need to disclose if and when I get a
      fee.

           Q.    What is the nature of that financial arrangement,
      Your Honor?

            A.    It’s a very interesting one, I guess, because what
      happened was when I referred the case to Paul Rosen, I told him
      that he should sit down and work anything out with Roy that
      they think is appropriate and fair for a referral fee. And,
      ultimately, as I now just understand it from Mr. Lomas, he sent
      a letter to Rosen to tell Rosen that if, in fact, they collect any
      money, I should get a third referral of the net proceeds as a fee.

N.T., 9/6/07, at 21-22.

      As recited above, this exchange clearly demonstrates that Judge

Rogers presided over the damages phase of these proceedings at a time

when he knew Judge Branca, a judicial colleague of his on the Montgomery


                                    - 25 -
J-E03004-14


County bench, would directly and proportionally benefit from the size of any

increased award entered in the case. Upon these facts, I find our prior en

banc decision in Armor to be persuasive.

     In Armor, under very similar circumstances to the instant case, this

Court mandated recusal of the entire Montgomery County trial court bench

(or a change of venue) where the spouse of one of the judges had a financial

interest in a child support case pending in Montgomery County.        As is

claimed here, the record evinced no evidence of “bias, prejudice or

unfairness” on the part of the presiding judge, but this Court found the

appearance of impropriety to be an overriding concern:

           [T]he judicial system must be kept, like Caesar’s wife,
     above reproach. Under the circumstances here presented, the
     appearance of appellee before the bench of Montgomery County,
     involving as it must her remarriage to a member of that bench,
     demands that such a case not be heard by any of the judge-
     husband’s colleagues.

Armor, 398 A.2d at 174.      Accordingly, this Court refused to approve a

procedure whereby any of the Montgomery County Common Pleas judges

could hear the matter. All of the judges of that county court would have the

same problem as the then-presiding judge. It was our conclusion that such

action would tend to weaken the public confidence in the court.         Id.

Importantly, we also held that such action would, pursuant to Canon 1 of the

Code of Judicial Conduct, be contrary to the appearance of impropriety and

independence of the judiciary that we are charged with preserving.      Id.

Likewise, we held that such action would violate the judge’s obligation to


                                   - 26 -
J-E03004-14


promote public confidence in the integrity and impartiality of the judiciary

pursuant to Canon 2.34 Id.

       Given the facts in Armor, I cannot distinguish its result from what

should occur in this case.     The disqualifying feature in this case is Judge

Branca appearing before his colleague on the Montgomery County bench.

Every member of that bench would be placed in identical circumstances as

Judge Rogers to decide damages knowing that Judge Branca would benefit

directly and proportionally from the size of any award. The appearance of

impropriety here—perceived favoritism of a judicial colleague—reflects

adversely on a judge’s impartiality and the integrity of the judiciary. In fact,

I find a bench recusal here more compelling than in Armor, since the

perceived favoritism here is of a judicial colleague, as opposed to that of a

judicial family member, as was the case in Armor. In this regard, I also find

the trial judge’s focus on the conduct of Judge Branca to be irrelevant to the

decision on recusal. While Judge Branca’s prior representation of Appellee

may have formed the factual predicate for the recusal motion, the

appearance of impropriety to be reviewed had to focus upon whether Judge

Rogers, the trial judge, should sit in judgment of this case.

       Armor illustrates again that a jurist’s recusal is sometimes necessary

to protect the integrity of the judicial system. This is a common theme for

courts facing this issue. “A tribunal is either fair or unfair. There is no need


34
     That obligation is currently codified in Canon 1, Rule 1.2.


                                      - 27 -
J-E03004-14


to find actual prejudice, but rather, the appearance of prejudice is sufficient

to warrant the grant of new proceedings. A trial judge should not only avoid

impropriety but must also avoid the appearance of impropriety.”        McFall,

617 A.2d at 714.          I believe the trial court erred by disregarding

consideration of the appearance of impropriety and focusing instead only on

whether Appellants had demonstrated actual prejudice or bias by Judge

Rogers.


       Our Supreme Court Has Not Disapproved Armor’s Rationale

       The trial court dismissed Armor believing that the Pennsylvania

Supreme Court rejected its “imputed appearance of impropriety standard” 35

when that Court reversed In re Brockerman, 480 A.2d 1199 (Pa. Super.

1984).     Trial Court Opinion, 12/31/08, at 10.36   Appellee agrees, arguing

subsequent cases have ignored Armor and have held that evidence of bias,


35
   It is not readily apparent how the trial court came to refer to the
appearance of impropriety standard as “imputed.” For present purposes, I
discern no difference in my reference to the standard from that of the trial
court.
36
     The trial court wrote as follows:

             No 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. The
       Judge is not even a party in the case. Armor is not precedential
       authority and has been rejected by the Supreme Court.
       Moreover, Armor fails to set forth and articulate the substantive
       law and burden of proof to be applied on a motion for recusal.

Trial Court Opinion, 12/31/08, at 13.



                                         - 28 -
J-E03004-14


prejudice or unfairness is necessary before the interest of a non-presiding

judge requires recusal of all judges of the same court. Based on a thorough

review of the law of recusal and the appearance of impropriety, I disagree.

       In Brockerman, one party alleged the negligence of an attorney who,

by the time of the appeal, was a judge of the Superior Court. Id. at 1201

n.3.   Pursuant to Armor, this Court certified the appeal to the Supreme

Court, believing that an appearance of impropriety precluded this Court from

deciding the appeal.    Id.     In a per curiam order, the Supreme Court

remanded to this Court without hearing the appeal.      In re Brockerman,

473 A.2d 1016 (Pa. 1984). From this, the trial court inferred the Supreme

Court’s disapproval of Armor.

       The trial court erred in its analysis of Armor as affected by

Brockerman for several reasons.       First, and most important, per curiam

orders do not create binding precedent.       Beneficial Consumer Discount

Co. v. Vukman, 77 A.3d 547, 549 n.3 (Pa. 2013).         The Supreme Court’s

order in Brockerman is not authoritative on any substantive issue in that

case. The trial court erred in treating the per curiam order in Brockerman

as a rejection of Armor.      I will not speculate as to the Supreme Court’s

reasons for refusing this Court’s certification of the appeal.     I believe,

nonetheless, that the circumstances of Brockerman were very different

from those of Armor. Second, as evinced throughout this opinion, Armor

plainly is not the only case to apply the appearance of impropriety standard.



                                     - 29 -
J-E03004-14


A rejection of Armor, even if one occurred, would not be a rejection of the

appearance of impropriety standard. It cannot seriously be contended that

our Supreme Court intended, through a per curiam order, to create a sea

change in this area of the law. Finally, as Appellants point out, the Supreme

Court, after Brockerman, also issued a per curiam order in Highway

Materials, Inc., v. Court of Common Pleas of Montgomery County, No.

156 MM 2010, 2010 Pa. LEXIS 2874 (Pa. Dec. 14, 2010), where it ordered a

full bench recusal of the trial court.   This would seem at odds with the

Court’s action in Brockerman.      It is not, however, for the same reason

Brockerman does not control here; neither case creates binding precedent.


                The Timing of Appellants’ Recusal Motion

      The Majority argues Appellants’ recusal motion was untimely as they

had two opportunities to seek recusal before they filed their motion; first

before the liability trial in January 2007, and second, on September 6, 2007

immediately after Judge Branca testified. I disagree.

      The parties’ consent at the January 2007 pretrial conference to

proceed in front of Judge Rogers is of no moment for two reasons. First, the

result I advocate would not disturb the liability verdict from these bifurcated

proceedings. Second, the parties and the trial court were unaware of Judge

Branca’s financial interest in the outcome of this case until Judge Branca’s




                                    - 30 -
J-E03004-14


testimony on the second and last day of the damages trial.37 Any analysis of

the timeliness of Appellee’s motion must therefore commence from that

date.

        Citing In re Lokuta, 11 A.3d. 427 (Pa. 2011), Goodheart and Reilly,

the Majority states that it is well settled 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.”

Majority Opinion at 21 (emphasis added by the Majority).38 While I do not


37
    The Majority states that Appellants could have learned of Judge Branca’s
financial interest by taking his deposition or informally “just asking him.”
Majority Opinion at 22-23. The Majority fails to cite any information in
Appellants’ possession that would prompt such an inquiry. Appellee did not
reveal at the January 2007 pretrial conference that Judge Branca retained a
one-third contingent fee interest in the outcome of the case. Appellants’
Memorandum of Law in Support of the Motion for Recusal, 6/24/09, at 3.
38
   The Majority argues the Appellants’ failure to request recusal immediately
after Judge Branca’s testimony was a waiver of any right to request recusal.
The record reveals that in his response to Appellants’ recusal motion,
Appellee’s only objection to the propriety of Appellants’ motion being before
the trial court was that Appellants waived any right to request recusal based
upon the January pretrial proceedings.           Appellee’s Memorandum in
Opposition to Defendants’ Motion for Recusal, 10/24/07, at 13. At the
pretrial conference, Judge Rogers disclosed (1) Judge Branca’s prior
representation of Appellee, and (2) the absence of any discussion of this
cases between Judge Rogers and Judge Branca, whereupon all counsel
agreed Judge Rogers could preside. Id. The key point, however, is the
absence of any disclosure, prior to Judge Branca’s testimony during the
damages trial, of Judge Branca’s financial interest in the outcome of this
case. Nonetheless, the Majority’s reliance on waiver is permissible as this
Court may affirm the trial court on any valid basis, including waiver. See
Commonwealth v. Tunnell, 345 A.2d 611, 612 (Pa. 1975) (“While the
question of waiver has not been raised by any party to this litigation, this
Court may affirm an order if it is correct for any reason.”) (citing Gilbert v.
Korvette, 327 A.2d 94, 96 n.5 (Pa. 1974)).


                                    - 31 -
J-E03004-14


quibble with this general proposition, none of these cases is particularly

helpful in addressing the timeliness issue raised by the Majority. In Lokuta,

Goodheart and Reilly, the recusal motions were all held to be untimely

because the moving litigants waited until the outcome of their cases before

filing their motions. In Lokuta, the appellant, after trial, sought recusal of

one of the judges of the Court of Judicial Discipline on the basis the judge

was ineligible to serve on the court. The appeallant raised this issue after

trial and had not included this argument in other pre-trial requests for

recusal.   Lokuta, 11 A.3d at 437.     Citing Goodheart, the Lokuta Court

held the appellant had waived this issue for not having raised it at the

earliest opportunity. Id.

      In Goodheart, the appellants, after they lost on appeal to our

Supreme Court, in an application for reconsideration, moved for recusal of

two Justices they alleged would benefit by the claim asserted in that case.

In their opposition to the application, the appellees asserted that the

“[A]ppellant chose to remain silent, resorting to the unconscionable and

reprehensible tactic of laying in the grass, waiting until the decision and then

raising the disqualification issue only if they lost.” Goodheart, 565 A.2d at

763.39 Although this characterization was somewhat “florid,” our Supreme


39
   The Majority’s use of this quotation from Goodheart inexplicably adds to
and truncates that court’s statement regarding the timeliness of a recusal
motion when the Majority states “Appellant[s] chose to remain
silent…waiting until the decision [was imminent], and then raising the
disqualification issue[.]” Majority Opinion at 23. In fact, as fully quoted


                                     - 32 -
J-E03004-14


Court held that it could not say the characterization was either inaccurate or

unfair. Id. Since the facts suggesting disqualification were known when the

case was called for argument, the issue was deemed waived.

        Similarly, in Reilly, counsel for the appellant, SEPTA, raised grounds

for recusal of the trial judge a) eight months after the trial judge gave

counsel five days to file a recusal motion, and b) in asserting numerous new

grounds for recusal while on appeal to this Court. Reilly, 489 A.2d at 1300.

The Supreme Court found that counsel waived any right to raise recusal by

not timely responding to the trial judge’s order and for raising new grounds

after trial was complete on appeal to this Court.     Id.   Although Lokuta,

Goodheart and Reilly all speak to the timeliness of a recusal motion, they

provide little guidance to the present situation where the grounds for recusal

were in fact raised before a verdict was entered by the trial court.

        Judge Branca testified on September 6, 2007, the last day of the two-

day damages trial.     Appellants filed their recusal motion on October 15,

2007.    Appellants did not await the adverse damages verdict before filing

their motion.    Appellants retained new counsel and sought Judge Rogers’



above, the statement from Goodheart provides “[A]ppellant chose to
remain silent…waiting until the decision and then raising the disqualification
issue only if they lost.” Id. (Emphasis added). By indicating the moving
party waited until the decision was “imminent” and omitting the words
“only if they lost”, the Majority impermissibly changes the import of this
statement in Goodheart.        In fact, the Majority’s statement becomes
incongruent with the facts and result in that case where the recusal motion
was deemed waived because the appellants waited until the court’s decision
was issued before requesting recusal.


                                     - 33 -
J-E03004-14


recusal prior to the trial court’s damage verdict. Thus, Appellants have not

violated the precedent prohibiting a recusal motion after an adverse result.

Appellants’ filed their motion during the thirty-day post-trial hiatus granted

by the trial court to permit Appellants to determine whether they needed a

forensic accountant to review attorneys’ fee invoices submitted by Appellee

at the beginning of the damages trial. Certainly, the surprise revelation that

Judge Branca retained a contingent fee interest in the outcome of this case

to be decided by his colleague, was a momentous matter that had to be

carefully considered by Appellants. The decision to seek recusal not only of

Judge Rogers, but of the entire Montgomery County bench, assuredly

required counseled judgment.      This situation is entirely distinct from a

common evidentiary objection that requires immediate action to afford the

trial court an opportunity to correct a perceived error. Moreover, Appellants

filed the motion before any additional days of trial (as there were none) or

courtroom resources were devoted to this matter and before the trial court’s

decision on damages.     Under these circumstances, I do not believe that

Appellants’ motion was untimely filed.

      I also reject the Majority’s claim that the loss of the trial judge that

made the credibility decisions and observations of witnesses and other

evidence at trial will cause extreme prejudice to the Appellee.          This

contention is belied by Appellee’s own concession that another trial judge

could decide the damages trial based upon a review of the existing record if



                                    - 34 -
J-E03004-14


Judge Rogers found that he had to recuse himself from this case. Appellee’s

Memorandum in Opposition to Defendants’ Motion for Recusal, 10/24/07, at

1, 4, 14.40 Moreover, the Majority’s contention applies to any case where a

trial judge finds that he or she must recuse during the course of a

proceeding. Such is the price to be paid for the guarantee of a fair trial and

the preservation of the public’s trust in the judiciary’s administration of

justice.

                                     Conclusion


      In conclusion, I do not believe this Court can defer to Judge Rogers’

disposition of the recusal motion.    Judge Rogers failed to account for the

appearance of impropriety inherent in this case. Judge Branca testified that

he has a one-third interest in the net proceeds of any award in this case,

and Judge Rogers, presiding over a bench trial, was responsible for

determining the amount of the award.          Appellee notes that Judge Rogers

issued a verdict on liability before this issue arose, and the amount of

compensatory damages had been established through arbitration. This point

is well-taken, but at the damages phase in this action Judge Rogers had to

determine whether and to what extent, in his discretion, punitive damages

were appropriate.    Judge Rogers’ award of more than $600,000.00 in



40
    I acknowledge that after Judge Rogers vacated his recusal after
considering Appellee’s response, Appellee has maintained that Judge Rogers
did not abuse his discretion in refusing to recuse himself from this matter,
and now Appellee objects to another judge being assigned to hear this case.


                                     - 35 -
J-E03004-14


punitive damages essentially may award his colleague on the Montgomery

County bench more than $200,000.00 on this item of damages alone. 41 In

Armor, we ordered the recusal of the entire Montgomery County bench

where a judge’s spouse had a direct financial interest in the outcome.        I

believe the same result must obtain here, where a judge has a direct

financial interest in the outcome of a case being heard and decided by one of

his bench colleagues.

      As demonstrated, an appearance of impropriety alone may properly

form the basis for recusal of a judge, or bench, from hearing a matter.

Judge Rogers improperly has dismissed consideration of the appearance of

impropriety in this case solely on the basis Appellants produced no evidence

of bias, unfairness, or prejudice on the part of Judge Rogers.        To do so

disregards a critical gatekeeping function of our courts. As aptly observed in

Reilly,

             Questions concerning the fairness, impartiality, or bias of
      the trial court always affect the administration of justice and can
      cloak the whole system of judicature with suspicion and distrust.
      Because recusal requests call into question our ability to mediate
      fairly, they raise important issues in which the public is
      concerned. If our courts are perceived to be unfair and biased,
      our future ability to adjudicate the public’s grievances and
      wrongs will be threatened, because we all lose the one thing that
      brings litigants into our halls of justice—their trust. Without the
      people’s trust that our decisions are made without malice, ill-will,

41
    The record is not clear as to what a referral fee of one-third on a net
recovery would include under the agreement between Judge Branca, the
client, and the referred firm. Suffice it to say, the increase in award of more
than eight times the arbitration award because of Judge Rogers’ decision on
damages is substantial.


                                     - 36 -
J-E03004-14


       bias, personal interest or motive for or against those submitting
       to our jurisdiction, our whole system of judicature will crumble.

Id. at 1301. “Judicial integrity is, in consequence, a state interest of the

highest order.”   Caperton 556 U.S. at 889 (citing Republican Party of

Minn., 536 U.S. at 793 (Kennedy, J., concurring)).

       Finally, I take issue with the Majority’s contention that my analysis

would require recusal of an entire county bench when a judge has a financial

interest in a case pending in his or her home county, even in counties with

large benches such as Allegheny and Philadelphia. Majority Opinion, at 2-3

n.1.   I believe the Majority’s claim is overstated and an unwarranted

exaggeration of the result I advocate.       This case presents extraordinary

circumstances, and my analysis would create no blanket rule. The outcome

of a recusal motion in any future case involving judges of the same county

would still depend on the court’s assessment of the facts and circumstances

before it, in accordance with the law governing recusal motions. Instantly,

Judge Branca was a material witness in the damages phase of this trial, and

he had a significant financial interest in the outcome.      Judge Rogers, a

colleague, had to assess Judge Branca’s credibility and determine whether to

issue a substantial award of punitive damages knowing that Judge Branca

would benefit proportionally based upon his contingent interest in the size of

the award entered by Judge Rogers. These are the unique facts of this case,

which I anticipate will not replicate themselves with any untoward frequency

in our courts. With that said, I wish also to emphasize, once again, that I do


                                    - 37 -
J-E03004-14


not doubt Judge Rogers’ ability to arrive at a fair and impartial verdict. My

analysis rests on the appearance of impropriety, not actual impropriety.

     As set forth at the outset, I join the Majority in affirming the liability

verdict, and respectfully dissent from the Majority’s conclusion that Judge

Rogers did not err in denying Appellant’s recusal motion.

     Judges Bowes, Donohue, and Shogan join this Concurring and

Dissenting Opinion.




                                   - 38 -
