J-A27032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EARL W. MCKEEVER, JR.                          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

KRISTEN M. (CARRERA) MCKEEVER

APPEAL OF: MARY E. BALOH                            No. 1772 WDA 2014


            Appeal from the Order Entered September 22, 2014
          In the Court of Common Pleas of Westmoreland County
                    Civil Division at No: 1434 of 2009-D


BEFORE: BOWES, OLSON, AND STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 21, 2015

      Appellant, Mary E. Baloh, former counsel for plaintiff, Earl W.

McKeever, appeals from the trial court’s September 22, 2014 order denying

her motion for recusal. We quash.

      The parties’ custody action commenced with Mr. McKeever’s complaint

against Kristen M. (Carrera) McKeever on July 28, 2009. This appeal does

not relate in any way to the parties’ custody dispute. Rather, Appellant has

filed this collateral appeal from the September 22, 2014 order of Judge

Harry F. Smail, Jr. of the Westmoreland County Court of Common Pleas,

denying her motion for Judge Smail’s recusal.       She claims Judge Smail

cannot preside with impartiality because Appellant represented Judge

Smail’s former wife in child custody litigation. Appellant’s representation of
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Judge Smail’s ex-wife occurred twenty years ago, and the representation

lasted less than one year. Trial Court Opinion, 12/5/14, at 2 n.2.

      The relevant procedural history is as follows. Appellant, while serving

as counsel for Mr. McKeever, hired an attorney to file a motion for recusal on

Appellant’s behalf.     On October 9, 2014, several weeks after Judge Smail

denied the recusal motion, Appellant withdrew her appearance on behalf of

Mr.   McKeever    and    a   different   attorney   entered    an   appearance    on

Mr. McKeever’s behalf.       On October 17, 2014, Appellant’s counsel filed an

emergency motion for reconsideration of Judge Smail’s September 22, 2014

before Westmoreland County Common Pleas Judge Richard E. McCormick.

Judge McCormick denied the motion as improperly before him. On October

21, 2014, Appellant filed a motion for reconsideration with Judge Smail.

Judge Smail denied that motion, and on October 22, 2014, Appellant filed

this timely appeal from Judge Smail’s September 22, 2014 order.

      Appellant   asserts     that   Judge     Smail   erred   in   finding   recusal

unnecessary under the circumstances of this case. Appellant further argues

Judge Smail’s refusal to recuse himself in this and any future case violates

her due process rights.       Appellant notes that she practices family law in

Westmoreland County, and Judge Smail is one of only four judges who could

preside over Appellant’s cases. Appellant therefore asserts that her inability

to represent any client whose case is assigned to Judge Smail constitutes an

unconstitutional taking of a property right.           We conclude that we lack


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jurisdiction over this appeal.   We therefore cannot address the merits of

Appellant’s arguments.

      Rule 313 of the Pennsylvania Rules of Appellate Procedure permits this

Court to exercise jurisdiction over collateral orders in defined circumstances.

Rule 313(b) defines the three elements of an appealable collateral order: “A

collateral order is an order separable from and collateral to the main cause

of action where the right involved is too important to be denied review and

the question presented is such that if review is postponed until final

judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).

“[T]he collateral order doctrine is a specialized, practical application of the

general rule that only final orders are appealable as of right.”     Melvin v.

Doe, 836 A.2d 42, 46-47 (Pa. 2003). “Thus, Rule 313 must be interpreted

narrowly, and the requirements for an appealable collateral order remain

stringent in order to prevent undue corrosion of the final order rule.” Id. at

47. “To that end, each prong of the collateral order doctrine must be clearly

present before an order may be considered collateral.” Id.

      The order denying Appellant’s recusal motion plainly is separable from

and collateral to the underlying action. Indeed, Appellant’s quest to obtain

Judge Smail’s recusal is entirely unrelated to the parties’ custody action. We

must next consider whether the asserted right is too important to be denied

review, and/or whether the right will be irreparably lost if Appellant is forced

to await final judgment.    Appellant addressed these issues in response to


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this Court’s November 10, 2014 rule to show cause why this appeal should

not be quashed:

          Attorney Baloh was the attorney for Judge Smail’s ex-wife
     in a bitterly contested and acrimonious custody matter in
     Westmoreland County.

           Attorney Baloh, as a matter of professional ethics and
     candor to every potential or actual client who hires her and who
     must appeal before Judge Smail, will be obligated to let that
     client know of her former representation and deal with the
     appearance of bias, potential for any imaginary [sic], perceived
     or real prejudice that Judge Smail may have in adjudicating
     matters for that client by reason of the presence of Attorney
     Baloh as counsel of record.

                                      […]

           At the time of the hearing wherein his Honor recited that
     the Father/Husband in this particular matter did not find
     his recusal warranted, the Court failed to note on the record
     that the gentleman was not represented any longer by Mary
     Baloh.

           It is respectfully suggested that Judge Smail’s refusal to
     recuse himself in matters involving Attorney Baloh presents a
     constitutional issue:     Attorney Baloh is being deprived of
     property, her ability to earn a living practicing law, for all clients
     assigned to Judge Smail because of the existing administrative
     assignment protocol.

           In summary, this case is not about what should
     happen in the McKeever matter still pending in the lower
     court. It is about what should happen in the next case and the
     untold number of cases that Attorney Mary Baloh will be denied,
     without hearing for no valid reason other than the presence of
     Judge Harry Smail being on the bench of Westmoreland County
     and being assigned to a case that involves Attorney Mary Baloh.

Response to Rule to Show Cause, 11/24/14, at 1-2 (italicized emphasis in

original; bolded emphasis added).




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       We respectfully but strongly disagree with Appellant’s assessment of

the circumstances. This is a child custody dispute between the McKeevers.

Contrary to Appellant’s assertion, therefore, this case is entirely “about what

should happen in the McKeever matter.”           Furthermore, the recusal motion

does not implicate Appellant’s asserted constitutional rights.      The recusal

motion implicates Mr. McKeever’s right to have a fair and impartial jurist

preside over his case. See, e.g. Reilly v. SEPTA., 489 A.2d 1291, 1295

(Pa. 1985) (“No allegation of bias or animosity of the judge to [the litigant]

was ever alleged.       Any such animosity, standing alone, between a lawyer

and judge is irrelevant.”). The record indicates Mr. McKeever has chosen to

proceed with substitute counsel rather than persist in seeking Judge Smail’s

recusal. Appellant therefore has no right at stake in this custody action, let

alone a right sufficiently important to merit collateral review.1      Appellant
____________________________________________


1
   The trial court found the recusal issue moot, given Appellant’s withdrawal
of her appearance. “As a general rule, an actual case or controversy must
exist at all stages of the judicial process, or a case will be dismissed as
moot.” Warmkessel v. Heffner, 17 A.3d 408, 412 (Pa. Super. 2011),
appeal denied, 34 A.3d 833 (Pa. 2011). This Court will decide a moot case
where: “1) the case involves a question of great public importance, 2) the
question presented is capable of repetition and apt to elude appellate
review, or 3) a party to the controversy will suffer some detriment due to
the decision of the trial court.” Id. at 413.

Appellant argues the alleged harm is capable of repetition, yet evading
review. We need not address the mootness doctrine in detail given our
conclusion that we lack jurisdiction over this appeal. However, Judge Smail
correctly observed that Appellant could file a recusal motion in any future
case where she is before him.



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nonetheless persists in seeking a declaration that Judge Smail cannot

preside over any case in which Appellant is counsel.      We discern no legal

basis upon which this Court, presiding over an appeal in a child custody

dispute, can issue a decision preemptively directing a trial court judge to

recuse himself from any future case involving a party’s former counsel.

      We appreciate Appellant’s desire to resolve an issue that she believes

will affect many of her prospective clients. We nonetheless remind counsel

of her obligation to make “reasonable efforts to expedite litigation consistent

with the interests of the client” in accordance with Rule 3.2 of the Rules of

Professional Conduct.     In this case, Appellant has placed Mr. McKeever’s

custody dispute on hold indefinitely while she seeks to vindicate her asserted

constitutional rights. If Appellant believes Judge Smail has deprived her of a

constitutional right without due process of law, she should seek redress by

other legal means that may be available.

      Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2015




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