J-A24011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 TONY D. SAMENTO                          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 NANCI M. SAMENTO                         :   No. 1890 MDA 2017

           Appeal from the Judgment Entered November 6, 2017
           In the Court of Common Pleas of Cumberland County
                    Civil Division at No(s): 2009-08051


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED JANUARY 16, 2019

      Tony D. Samento (“Husband”) appeals from the judgment entered

November 6, 2017, in the Cumberland County Court of Common Pleas

awarding Nanci M. Samento (“Wife”), $4,000.00 plus attorneys’ fees, for

Husband’s willful breach of the parties’ Marital Settlement Agreement (“MSA”).

On appeal, Husband argues: (1) the trial court denied him procedural due

process when it abruptly terminated the hearing during his testimony; (2) the

trial court abused its discretion when it denied Husband’s post-hearing recusal

motion; and (3) Wife failed to state a cause of action for breach of the MSA.

For the reasons below, we vacate the judgment, and remand for further

proceedings before a different trial court judge.

      Much of the long and contentious history between the parties is not

pertinent to this appeal. Relevant herein, Husband filed a complaint in divorce

in November of 2009, followed shortly thereafter by a complaint seeking
J-A24011-18



custody of the parties’ three minor children.1 On October 3, 2014, the parties

executed an MSA, which provides, inter alia:

       Husband and Wife shall not molest, harass, disturb or malign each
       other or the respective families of each other, nor compel or
       attempt to compel the other to cohabit or dwell by any means or
       in any manner whatsoever with him or her.

Marital Settlement Agreement, 10/3/2014, at ¶ 3. Paragraph 18 of the MSA

permits a party to sue for damages upon a breach of the agreement. See id.

at ¶ 18. A final decree in divorce was entered on October 14, 2014.

       Sometime during the divorce proceedings, Husband hired a private

investigator to follow Wife and find out if she was having an affair.      The

investigator obtained video of Wife with her paramour, a Pennsylvania State

Trooper, in the parking lot of a Boscov’s Department Store.2 In November of

2014, Wife received an email with a link to a YouTube video titled, “Hoes Get

Caught II.” The video, posted publicly on YouTube, was an edited version of

the private investigator’s video set to music. It displayed her name across

the video, and phrases such as “pigs and hoes.”      N.T., 10/5/2017 (before

____________________________________________


1 The parties have five children, three of whom were minors and still living at
home at the time the custody complaint was filed: a biological daughter,
C.M.S. (born in November of 1992), and two sons whom they adopted in 2005,
A.M.S. (born in May of 1999) and E.D.S. (born in July of 2000). The parties
also have two adult biological daughters, B.N.S. (born in January of 1983) and
T.C.S. (born in January of 1986).

2 The video was not provided to this Court as part of the certified record, and
is described much differently by the parties. According to Wife, the video
showed her and her paramour kissing while fully clothed.             See N.T.,
10/5/2017 (before recess), at 7. According to Husband, the video recorded a
more explicit sexual encounter. See N.T., 10/5/2017 (after recess) at 33.

                                           -2-
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recess), at 10. The video was removed two weeks later; however, Wife was

not able to uncover who posted the video.

      Meanwhile, Husband sought to terminate Wife’s parental rights with

regard to their two adopted sons, so that his current wife, Stepmother, could

adopt them.     Wife’s parental rights were subsequently terminated in

November of 2015, and Stepmother later adopted the boys.            After the

adoption, Wife received a letter postmarked October 28, 2016, which included

a photograph of the boys, Husband, and Stepmother, in the courtroom when

the adoption was finalized. The photo had “FYI” written on it, and the return

address on the envelope read, “Karma A. Betch,” and listed the address of the

Boscov’s parking lot where the private investigator’s video originated. Id. at

26.

      On March 9, 2017, Wife filed a motion for breach of the MSA.

Specifically, she asserted Husband violated Paragraph 3 of the agreement by

(1) publicly posting an explicit and disparaging video of her to YouTube; (2)

speaking to a co-worker of her current husband about her; and (3) mailing to

her a photograph of Stepmother adopting her two children.        See [Wife’s]

Motion for Breach of Marital Settlement Agreement, 3/9/2017, at ¶¶ 3-6. On

July 26, 2017, Wife filed a Request for Discovery, seeking from Husband, inter

alia, the name of the person who “produced the video of [Wife,]” and “any

and all copies of the video in possession” of Husband. [Wife’s] Request for

Discovery, 7/26/2017, at 1. Husband filed an Answer and Objections to Wife’s

discovery request, asserting, inter alia, her request was “overbroad and

                                    -3-
J-A24011-18



unspecific and does not include the date and time and subject matter of the

video sought,” and, in any event, was protected by attorney/client privilege.

[Husband’s] Answers and Objections to [Wife’s] Request for Discovery,

8/25/2017, at 1.

        A hearing was conducted by the trial court on October 5, 2017. Wife

testified first, before a recess, after which her former psychologist testified.

Husband then testified briefly until the trial court abruptly ordered him to step

down from the witness chair, and stated the hearing would be continued

another day. The court also directed both attorneys to meet in chambers;

however, the in-chambers discussion was not transcribed. On November 6

2017, the trial court entered the following order and judgment in favor of

Wife:

        AND NOW, this 6th day of November 2017, upon consideration of
        the relevant testimony, which includes information that
        [Husband’s] counsel had delivered a copy of the video at issue to
        an innocent injured spouse, counsel’s revelation that resulted in
        an in-chambers discussion, wherein [Husband’s] counsel further
        admitted to having a copy of said video in a box, in her garage,
        and that video was directed to be turned over as discovery to
        [Wife’s] counsel, and, in review of the facts, which include
        [Husband’s] gross inability to answer questions truthfully,
        Judgment is hereby GRANTED in favor of [Wife] on the claim of
        breach of the Marital Settlement Agreement.

Order, 11/6/2017, at 1. The court awarded Wife $4,000.00 for Husband’s

willful breach of the MSA,3 and directed Husband to pay Wife’s counsel fees in
____________________________________________


3 The trial court specifically stated it was not awarding Wife any damages for
intentional infliction of emotional distress. See Order, 11/6/2017, at 1.



                                           -4-
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the amount of $3,742.26. See id. Husband filed a timely appeal on December

5, 2017.4

       That same day, Husband filed three motions in the trial court: (1) a

motion to obtain the digital audio recording of the October 5th hearing; (2) a

motion to amend the record to include opinions and documents from the

termination of parental rights proceedings; and (3) a statement in absence of

transcript concerning the October 5th in-chambers discussion. On December

28, 2017, Husband also filed a motion seeking the trial court recuse itself from

all “further judicial decision making regarding the case.” Motion to Recuse,

12/28/2017, at 1.       On January 16, 2018, the trial court entered an order

granting Husband’s motion to obtain a copy of the digital audio file from the

October 5th hearing, with the stipulation that it would remain sealed. See

Order, 1/16/2018.

       On February 5, 2018, the trial court issued an opinion, pursuant to

Pa.R.A.P. 1925(a), in support of its determination that Husband breached the

MSA, and its corresponding judgment in favor of Wife. On February 14, 2018,

Husband filed a supplemental motion seeking to “correct and amend” the

record with regard to several statements in the trial court’s opinion.

Supplemental Motion to Correct and Amend the Record Pursuant to Pa.R.A.P.

____________________________________________



4 On December 14, 2017, the trial court ordered Husband to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Husband complied with the court’s directive, and filed a concise statement on
December 28, 2017.

                                           -5-
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1926, 2/14/2018, at 1. Thereafter, on March 7, 2018, the trial court issued

an order and opinion, denying Husband’s outstanding post-judgment motions

filed on December 5, 2017. It also issued an order on March 13, 2018, denying

Husband’s supplemental motion to correct the record.

       In his first issue on appeal, Husband contends the trial court denied him

procedural due process when, after permitting Wife to present testimony for

90 minutes,5 it terminated the hearing after Husband, himself, testified for

only seven minutes. See Husband’s Brief at 25-26.

       By way of background, there were two videos discussed at the hearing.

The first, obtained by the private investigator, featured Wife and her paramour

engaged in some type of illicit encounter. The second video was an edited

version of the first, which included music and text. That video was posted

publicly on YouTube.

       At the hearing, Wife testified in detail about the anxiety she felt after

receiving an email with a link to the YouTube video. See N.T., 10/5/2017

(before recess), at 11-14. She also testified extensively regarding derogatory

comments Husband posted about her on Facebook and Twitter. See id. at

17-24. The court ultimately ruled the social media posts were inadmissible

for anything other than corroboration of the language later employed in the

____________________________________________


5Our review of the digital audio file from the hearing reveals Wife testified on
her own behalf for almost an hour, after which she presented the testimony
of her former psychologist. Husband’s counsel was in the middle of his direct
examination when the trial court terminated the proceedings.


                                           -6-
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anonymous letter Wife received about the adoption. See N.T., 10/5/2017

(after recess), at 24-27. Lastly, Wife described the letter she received at her

home residence after her sons were formally adopted by Stepmother. She

testified the envelope was postmarked October 28, 2016, and included the

following in the return address area:

      In the top left corner it is coming from --- the name is Karma A.
      Betch, B-e-t-c-h. The address is actually the address of the
      Boscovs store, the parking lot where the video originated, and it
      is coming from Fairless Hills.

N.T., 10/5/2017 (before recess), at 26. Wife stated that inside the envelope

was a photograph of her sons “going through the adoption with Judge

Masland,” with “FYI” written on it. Id. Wife described her fear of Husband,

and his unpredictability, and sought $200,000.00 in damages for emotional

distress. See id. at 27-30. Under cross-examination, Wife admitted the only

two alleged contacts Husband had with her after the parties executed the

MSA were the email link and the letter with the photograph. See id. at 33-

34.   She insisted the letter came from Husband, although she did not

recognize the handwriting on the envelope, and admitted other people knew

of the video of her in the Boscov’s parking lot. See id. at 34-35.

      The court then took a short recess, after which Wife’s counsel called her

former psychologist, Dr. Laurie S. Pittman, to testify. Dr. Pittman explained

that she saw Wife for 11 sessions between August of 2014 and April of 2015.

See N.T., 10/5/2017 (after recess), at 7. Dr. Pittman described some of Wife’s

symptoms, as well as her own concern that Wife may suffer from Post-


                                     -7-
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Traumatic Stress Disorder (“PTSD”). See id. at 10-11. However, Dr. Pittman

acknowledged she did not diagnose Wife with PTSD, “[i]t was [just her]

concern.” Id. at 21.

     After Husband’s attorney objected to certain evidence, and renewed a

motion to dismiss, she called Husband as her first witness. See id. at 29.

Husband denied ever having seen the YouTube video Wife described, or

sending Wife the photo of the adoption proceedings.      See id. at 30-31.

Husband explained the photo was taken in the courtroom, and later posted on

his public Facebook page so that it would have been accessible to anyone.

See id. at 31. Husband’s attorney acknowledged that she took the photo and

sent copies to Husband, his daughters, and the adoption Judge. See id. at

32. Counsel then questioned Husband regarding the unedited video of Wife

obtained by the private investigator. Husband described in detail the sexual

encounter he claimed he witnessed on the video, as well as lurid statements

Wife allegedly made to him when he confronted her. See id. at 34. At that

point, the following exchange took place:

     Q [by Husband’s Counsel:]     So have you ever seen any video of
     [Wife] on You Tube?

     [Husband:] No, I have not.

     Q     And has anybody you know told you they knew about a
     video on You Tube?

     A    No. No one’s ever told me anything other than the fact that
     when you called me because the State Police had called.

     Q    And to your knowledge did the State Police investigate this
     whole issue?


                                    -8-
J-A24011-18


     A     I do believe that they did, and from what I understand when
     they found out it was Corporal Thomas Tarsavage –

           [Wife’s Counsel]: Judge, this is all hearsay.

          THE COURT: Well, I don’t know what he is saying so I don’t
     know.

           [Wife’s Counsel:] He was indicating what he learned from
     the State Police.

           THE COURT: And I don’t –

           [Husband:] I’m sure there’s a record of this.

           THE COURT: Sir.

           [Husband:] I’m sorry.

           THE COURT: Sit down now. Down. Out of that seat.

           [Husband:] I’m sorry.

           THE COURT: Move it like you have got a purpose.

           [Husband:] I’m sorry, Your Honor.

           THE COURT: I’ll tell you when I’m coming back. It’s not
     going to be today. You get your client under control or I am going
     to tear him up on the stand. Do you understand me?

           [Husband’s Counsel:] I’m not sure, Your Honor, but I’ll try
     to.

            THE COURT: He talks over me one more time, I am going
     to rule summarily against him. Do you understand?

           [Husband’s Counsel:] Yes, Your Honor.

           THE COURT: Get him out of here. I want to see both of you
     in chambers.

Id. at 34-35. The court then proceeded to conduct an in-chambers conference

that was not transcribed.

     It is important to bear in mind that while the trial court’s November 6,

2017, order and judgment granting Wife relief referred only to the issue


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concerning the video, the court clarified in its February 2018 opinion that Wife

did not prove “the November 2014 YouTube video [was] a breach” of the MSA,

since she was unable to “obtain sufficient proof of authorship.”6 Trial Court

Opinion, 2/5/2018, at 19. Rather, the court determined Husband breached

the MSA only with respect to the 2016 letter Wife received in the mail: “The

evidence presented shows, by a preponderance of the evidence, that Husband

sent the mail piece that contained the adoption photo, which is a clear breach

of the MSA requirements[.]” Id. at 17.

       With this background in mind, we turn to Husband’s claim that the trial

court denied him procedural due process. See Husband’s Brief at 25-29.

       “The fundamental requisite of due process of law is the opportunity to

be heard.”      Grannis v. Ordean, 234 U.S. 385, 394 (1914). At its core,

procedural due process requires “adequate notice, opportunity to be heard,

and the chance to defend oneself before a fair and impartial tribunal having

jurisdiction over the case.” Garr v. Peters, 773 A.2d 183, 191 (Pa. Super.

2001) (citation omitted). See Hahalyak v. A. Frost, Inc., 664 A.2d 545,

550 (Pa. Super. 1995) (“Due process requirements are satisfied when a

person is given notice and opportunity to be heard and defend in an orderly

proceeding.”). Essentially, “[d]ue process rights entitle [a party] ‘to be heard

____________________________________________


6 Our review reveals Wife presented very little testimony regarding the
purported conversation Husband had with her current husband’s co-worker.
See N.T., 10/5/2017 (before recess), at 16-17. Moreover, the trial court did
not even discuss this claim in its opinion.        Accordingly, this alleged
conversation provides no basis for relief and we need not address it further.

                                          - 10 -
J-A24011-18



at a meaningful time and in a meaningful manner.’” BuyFigure.com, Inc.

v. Autotrader.com, Inc., 76 A.3d 554, 559 (Pa. Super. 2013) (citation

omitted), appeal denied, 84 A.3d 1061 (Pa. 2014).

      Nevertheless, as Wife emphasizes in her brief, “a party’s due process

rights are not without limits.” Wife’s Brief at 15. Indeed, while a criminal

defendant has a constitutional right to be present at his trial, the United States

Supreme Court has held:

      [A] defendant can lose his right to be present at trial if, after he
      has been warned by the judge that he will be removed if he
      continues his disruptive behavior, he nevertheless insists on
      conducting himself in a manner so disorderly, disruptive, and
      disrespectful of the court that his trial cannot be carried on with
      him in the courtroom.

Illinois v. Allen, 397 U.S. 337, 343 (1970) (footnote omitted). Similarly, in

Taylor v. Illinois, 484 U.S. 400, 413-414 (1988), the Supreme Court

rejected the defendant’s claim that his right to compulsory due process was

violated when the trial court excluded the testimony of a last-minute witness

who was not identified during discovery, rather than imposing a less drastic

sanction. The Taylor Court reasoned:

      A trial judge may certainly insist on an explanation for a party’s
      failure to comply with a request to identify his or her witnesses in
      advance of trial. If that explanation reveals that the omission was
      willful and motivated by a desire to obtain a tactical advantage
      that would minimize the effectiveness of cross-examination and
      the ability to adduce rebuttal evidence, it would be entirely
      consistent with the purposes of the Compulsory Process Clause
      simply to exclude the witness’ testimony.




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Id. at 415. Here, Wife insists that it was the “abhorrent behavior” of Husband

and his counsel7 – which she claims included Husband’s “gross inability to

answer questions truthfully,” and counsel’s actions in making “materially false

statements to the trial court,” retaining a copy of the private investigator’s

video in her garage, and sending a copy of that video to third parties – that

led to the trial court’s decision to suspend the hearing. Wife’s Brief at 13, 19.

        In its two opinions, the trial court provided the following explanation for

its decision to stop the hearing, and subsequently enter judgment for Wife,

without providing Husband a further opportunity to present his case:

              Husband’s launch into an ad hominem attack of Wife, rather
        than relevant factual testimony, coupled with the use of legally
        dubious methods to gain advantage over Wife bespeaks of
        Husband’s blatant inability to be candid. In fact, Husband’s patent
        inconsistency in the pleading and discovery responses, in stark
        contrast to his testimony, was in a word – shocking. Husband’s
        prehearing responses did not indicate any testimonial facts
        beyond denials and offered no knowledge of demonstrative
        evidence.     Husband’s pattern of dishonesty throughout the
        pleadings and testimony, coupled with Husband’s disingenuous
        and dilatory responses with discovery requests, support the
        finding that further proceedings would be a waste of judicial time.

Trial Court Opinion, 2/5/2018, at 18-19.

              [Husband] places dramatic importance on the court
        “screaming” at [him]. Anyone who has been involved in organized
        sports would easily recognize the difference between projecting
        one’s voice through the use of the diaphragm to provide loud, firm
        command directions, versus screaming.         The commands to
        [Husband] were not laced with profanity nor were any derogatory
        comments made. No comment was made that suggests hostility
____________________________________________


7   Wife’s Brief at 15.


                                          - 12 -
J-A24011-18


      or bias. A judge has no friends to reward, no enemies to punish,
      only justice that is to be served. There is no animus toward
      [Husband] or [Wife].

Trial Court Opinion, 3/7/2018, at 4.

      It is evident from a review of the court’s opinions that its frustration with

Husband and his counsel stems from Wife’s discovery request for information

regarding “the video.” [Wife’s] Request for Discovery, 7/26/2017, at 1.

Husband’s answer to Wife’s request included an objection, as well as his

assertions that her request was “overbroad and unspecific[,] …protected from

disclosure as attorney work product and by attorney/client privilege[, and] not

relevant or material to the proceedings.” [Husband’s] Answers and Objections

to [Wife’s] Request for Discovery, at 1. However, during the in-chambers

post-hearing discussion, Husband’s counsel purportedly admitted she had a

copy of the private investigator’s video “in a box in her garage.” Trial Court

Opinion, 2/5/2018, at 14. The court concluded Husband’s answers to Wife’s

interrogatories constituted “obfuscation.” Trial Court Opinion, 3/7/2018, at 4.

      Our review of the record, and particularly the transcript from the

October 5, 2017, hearing and the digital audio recording of that hearing,

reveals no basis for the trial court’s sudden decision to terminate the hearing.

Although Husband did provide a lurid description of what he alleged was

recorded on the private investigator’s video, and a conversation he allegedly

had with Wife about her sexual escapades, the trial court did not provide

Husband with any warning that his testimony had crossed a line. Moreover,

the court had previously permitted Wife to read a series of disturbing


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comments Husband had allegedly posted on social media about Wife before

the MSA was executed.           See N.T., 10/5/2017 (before recess), at 19-25.

Therefore, its perception that Husband’s testimony constituted an attack on

Wife,    while   permitting     Wife    to     attack   Husband’s     character,   is   a

mischaracterization of the proceedings.

        The trial court’s opinion appears to sanction Husband for a discovery

violation. While a trial court has the authority to impose a discovery sanction

under the Rules of Civil Procedure,8 here, it is important to recognize that

Wife’s interrogatories requested information regarding “the video” without

explicitly stating which of the two videos at issue - the private investigator’s

video or the edited You Tube video – she was referring.             [Wife’s] Request for

Discovery, 7/26/2017, at 1. Accordingly, Husband’s counseled objection was

appropriate. Wife could have, but did not, file an amended, more specific

discovery request.

        More importantly, while the court was clearly frustrated by what it

considered to be legal gamesmanship regarding the video, it ultimately

determined that Wife did not prove “the November 2014 YouTube video was

a breach” of the MSA. Trial Court Opinion, 2/5/2018, at 19.              Therefore, the

fact that counsel may have had a copy of the original video (not the edited


____________________________________________


8See Pa.R.C.P. 4019(a)(1) (“The court may, on motion, make an appropriate
order if[,] a party fails to serve answers, sufficient answers or objections to
written interrogatories”). See also Pa.R.C.P. 4019(c) (listing actions the court
may take upon a violation of subsection (a)).

                                          - 14 -
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You Tube version) in her garage is of no moment. The court’s frustration with

counsel should not have been used to prejudice Husband.

      Here, the only breach the court sanctioned Husband for was the letter

he purportedly sent to Wife with a picture from the adoption proceedings. See

Trial Court Opinion, 2/5/2018, at 17-18.        The trial court found that “the

opportunity for this letter to get to Wife in this fashion with this specific detail

is only with a finite number of people – Husband and his attorney.” Id. at 18.

However, the court made this determination without permitting Husband to

complete his testimony or present any evidence or witnesses in his defense.

Although the court justified its action, in part, by commenting that Husband’s

current defenses were not pled or revealed before the October 5th hearing, the

court did not discontinue the hearing for that reason. See Trial Court Opinion,

3/7/2018, at 5.     Again, our review of both the transcript of the October 5,

2017, hearing and the digital audio recording, reveals no basis for the court’s

abrupt termination of Husband’s case. Moreover, the court has provided no

legitimate reason for its failure to reschedule the hearing. Accordingly, we

are compelled to conclude Husband’s due process rights were violated, and he

is entitled to a new hearing on Wife’s claim that he breached the MSA.

      In his second issue, Husband argues the trial court abused its discretion

when it denied his motion for recusal. We agree.

      Our review of a trial court’s denial of a motion for recusal is well-settled:

      We review the trial court’s denial of the recusal motion for abuse
      of discretion. Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757,
      763 (1989). The trial court must conduct a two tiered analysis:

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           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 (internal quotation marks omitted).

Becker v. M.S. Reilly, Inc., 123 A.3d 776, 778 (Pa. Super. 2015). “Where

a jurist rules that he or she can hear and dispose of a case fairly and without

prejudice, that decision will not be overruled on appeal but for an abuse of

discretion.” Overland Enter., Inc. v. Gladstone Partners, LP, 950 A.2d

1015, 1021 (Pa. Super. 2008).

      In order to prevail on a recusal motion, the party seeking recusal must

“produce evidence establishing bias, prejudice or unfairness which raises a

substantial doubt as to the jurist’s ability to preside impartially.” In re A.D.,

93 A.3d 888, 892 (Pa. Super. 2014) (citation omitted). It is important to bear

in mind:

      The inquiry is not whether a jurist was in fact biased against a
      party, but whether, even if actual bias or prejudice is lacking, the
      conduct or statement of the court raises “an appearance of
      impropriety.” The rule is simply that “disqualification of a judge
      is mandated whenever ‘a significant minority of the lay community
      could reasonably question the court’s impartiality.’”

Commonwealth v. Stevenson, 829 A.2d 701, 705 (Pa. Super. 2003)

(citations omitted).

      Husband sought the trial court’s recusal after the court forcefully

terminated the proceedings during his testimony, and declined to reschedule

the hearing before entering judgment for Wife.       Husband encouraged this

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Court to listen to the audio recording of the hearing in order to fully grasp the

court’s hostility toward Husband and his counsel, which we did.              See

Husband’s Brief at 32-33. Moreover, Husband contends the court exhibited

animosity towards him and his counsel throughout the proceedings, ignored

facts of record, and prejudged his defense before he presented it. See id. at

36-41.

        Upon our review of the record in the present case, we agree the trial

court’s abrupt termination of the hearing, and its subsequent comments

regarding Husband and his counsel, raise an appearance of bias. While the

transcript of the hearing is disconcerting - particularly since it does not appear

Husband or his counsel was warned of any impropriety prior to the termination

of the hearing – our review of the audio recording confirms the hostility of

which Husband complains. Further, the court spent more than two pages of

its February 5, 2018, opinion, listing malicious actions Husband had previously

admitted to having taken against Wife in filings from 2010 and 2011, which

were completely irrelevant to the alleged breach of the October 2014 MSA.

See Trial Court Opinion, 2/5/2018, at 4-6. Moreover, after permitting Wife to

read into the record social media posts Husband purportedly made about her

prior to the execution of the MSA,9 the court chastised Husband for describing

the encounter on the private investigator’s video “in lurid detail, maligning

and casting further aspersions against Wife that were not [pled] and had no
____________________________________________


9   See N.T., 10/5/2017 (before recess), at 19-25.


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relevance to this post-divorce action, which he would not refrain himself from

presenting.”      Id. at 14 (footnote omitted).       Furthermore, the court

characterized Husband as having exhibited a “pattern of dishonesty

throughout the pleadings and testimony,” which “coupled with [his]

disingenuous and dilatory responses with the discovery requests, support[ed

its] finding that further proceedings would be a waste of judicial time.” Id. at

19.

       However, while the court criticized Husband’s purported failure to

comply with discovery requests, we must emphasize that Husband did

respond to Wife’s request for interrogatories, albeit in the form of an

objection.     Moreover, as noted previously, Wife’s request for information

concerning “the video” was not specific, as there were two videos at issue.

This is not a case where Husband failed to respond at all to Wife’s discovery

requests or ignored a court’s direct order to provide a more specific response.

Therefore, the court’s hostility toward Husband based upon his discovery

responses is unjustified.10

       Accordingly, despite the trial court’s assurance that it harbored no

animus toward Husband, we conclude upon review of the record before us


____________________________________________


10It merits mention that the court relied exclusively on concerns involving
the supposed “video” discovery violation in its November 6, 2017, order
granting Wife relief. It was not until the court issued its Rule 1925(a) opinion
that it clarified it was granting relief only on Wife’s claim that Husband sent
her the adoption photo in October of 2016.



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that the court’s comments regarding Husband and his counsel, as well as its

actions during the hearing, were intemperate, and raise an appearance of

bias. Therefore, we conclude the court abused its discretion when it denied

Husband’s motion for recusal, vacate the judgment entered in favor of Wife,

and remand this case for a new hearing before a different trial judge.11

       Judgment vacated. Case remanded for a hearing before another trial

judge. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2019




____________________________________________


11Because we conclude Husband is entitled to a new hearing, we need not
address his final claim that Wife failed to state a cause of action for breach of
the MSA.

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