J-S76034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAY V. YUNIK,                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

RENEE YUNIK,

                         Appellee                    No. 1191 WDA 2014


                 Appeal from the Order Entered June 5, 2014
              In the Court of Common Pleas of Crawford County
                   Civil Division at No(s): AD No. 2013-593


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 30, 2014

      Appellant, Jay Yunik, appeals pro se from the order entered on June 5,

2014, which sustained the preliminary objections filed by Renee Yunik and

dismissed Appellant’s “Writ of Replevin Without Bond” with prejudice.

Specifically, Appellant claims that the trial court erred in denying his earlier

“Motion for Disqualification of Judge.” We affirm.

      The trial court explained some of the underlying facts of this case, as

well as the related actions that Appellant instituted against Ms. Yunik:

        [O]n August 23, 2013, [Appellant] filed [the current]
        replevin action[fn.1] [seeking possession of] a 9.9 c.c.
        Yamaha boat motor (the “Boat Motor”). . . . This is the
        sixth suit [Appellant] has filed for the possession of the Boat
        Motor while he remains incarcerated on an unrelated
        matter,[fn.2] and the fifth action against [Mr. Yunik]. . . .

            [fn.1] [Appellant] styled his complaint as a “Writ of
            Replevin Without Bond,” the former name for a
J-S76034-14


           procedure available     under   former   Pa.R.C.P.   1353
           (rescinded). . . .

           [fn.2] See Case No. CR 1000-1999, at which [Appellant]
           was sentenced on August 29, 2000 to [54] to [180]
           months [in prison].

        Those prior proceedings and their ultimate dispositions are
        as follows:

           [Appellant] v. [] Dorothy L. Gol [(Appellant’s ex-
           wife)], Case No. 2006-1080: “Writ of Replevin” for . . .
           the Boat Motor, filed on July 26, 2006, and Complaint
           filed on December 22, 2006 [(no further proceedings)].

           [Appellant] v. Renee Yunik, Case No. 2012-5:
           “Complaint in Replevin” for the Boat Motor, . . . filed on
           January 4, 2012; order terminating action [as a result of
           Appellant’s] motion to discontinue, filed March 23, 2012.

           [Appellant] v. Renee Yunik, Case No. 2012-1162:
           “Complaint in Bailment” for the Boat Motor, . . . filed on
           September 18, 2012; judgment of [non pros] entered
           [against Appellant] for failure to pay the filing fee.

           [Appellant] v. Renee Yunik, Case No. 2013-98:
           “Complaint in Replevin” for the [Boat Motor], . . . filed
           on February 14, 2013; order sustaining [Ms. Yunik’s]
           preliminary objections and dismissing [Appellant’s]
           action, filed June 14, 2013.

           [Appellant] v. Renee Yunik, Case No. 2013-433:
           “Complaint in Replevin Without Bond” for the [Boat
           Motor,] . . . filed on July 5, 2013; order denying
           permission to proceed in forma pauperis and dismissing
           the action as frivolous, filed on July 23, 2013. . . .

Trial Court Opinion, 6/5/14, at 1-2 (some internal footnotes omitted).

     On August 23, 2013, Appellant filed the current action, which he titled

“Writ of Replevin Without Bond.”      Within his pleading, Appellant again

declared that Ms. Yunik was in wrongful possession of his $1,600.00 Boat


                                    -2-
J-S76034-14



Motor; Appellant sought “recovery of the [Boat Motor] or [] damages of

$1,600.00.” Appellant’s Writ of Replevin, 8/23/13, at 1-2.

      Ms.   Yunik   filed   preliminary   objections   to   Appellant’s   pleading.

However, before the trial court could rule on the preliminary objections,

Appellant filed a “Motion for Disqualification of Judge,” wherein Appellant

claimed that the trial judge must recuse from the case because: 1) in an

unrelated habeas corpus proceeding, the trial judge “illegally” transferred

Appellant’s habeas corpus petition from the civil division to the criminal

division, and, 2) in the case at bar, the trial judge “inappropriately gave

legal advice to [Ms. Yunik’s] lawyer.” Appellant’s “Motion for Disqualification

of Judge,” 5/30/14, at 1-2.

      On June 5, 2014, the trial court issued two orders in the case: first,

the trial court denied Appellant’s “Motion for Disqualification of Judge;”

second, the trial court sustained Ms. Yunik’s preliminary objections and

dismissed Appellant’s action with prejudice. Appellant filed a timely notice of

appeal and now raises the following claims:

        [1.] Judge ruling on own motion for recusal is abuse of
        discretion.

        [2.] The judge’s behavior during hearing was biased,
        improper and prejudicial toward [Appellant].

        [3.] Judge showed abuse of discretion and violation of law,
        by changing the jurisdiction of [Appellant’s] case.

        [4.] Judge showed partiality in favor of [Ms. Yunik’s]
        attorney in procedural matters.



                                      -3-
J-S76034-14


         [5.] The judge attempted to mislead this Court, and
         undermine Appellant, via, frivolous and malicious court
         orders.

Appellant’s Brief at i.

      All of Appellant’s claims challenge the denial of his “Motion for

Disqualification of Judge.” As our Supreme Court has held:

         The standards for recusal are well established. It is the
         burden of the party requesting recusal to produce evidence
         establishing bias, prejudice or unfairness which raises a
         substantial doubt as to the jurist’s ability to preside
         impartially. 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. 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. In
         reviewing a denial of a disqualification motion, we recognize
         that our judges are honorable, fair and competent.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (internal

citation omitted).

      At the outset, Appellant’s first, second, and fifth numbered claims on

appeal are waived, as Appellant did not include the claims in his recusal

motion or raise the claims before the trial court.     See Pa.R.A.P. 302(a)

(“[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal”).


                                     -4-
J-S76034-14



      For Appellant’s third and fourth numbered claims on appeal, Appellant

contends that the trial court erred when it denied his recusal motion because

the trial judge had previously “chang[ed] the jurisdiction of [Appellant’s

unrelated habeas corpus] case” and because the trial judge “showed

partiality in favor of [Ms. Yunik’s] attorney in procedural matters.”

Appellant’s Brief at i. These claims are frivolous.

      As the trial court explained, its prior actions were not the result of bias

or prejudice against Appellant:

        [Appellant] base[d] his [“Motion for Disqualification of
        Judge”] first on the supposed reassignment of an unrelated
        habeas corpus action from the civil to the criminal court
        docket[. Appellant claims that the reassignment was done]
        for the sole purpose of dismissing that action. Habeas
        corpus proceedings [in Crawford County], although civil
        actions, are automatically assigned to the Miscellaneous
        Docket of the Clerk of Courts [], and not the civil division
        under the jurisdiction of the prothonotary. [Appellant’s]
        action was accordingly filed initially on the Miscellaneous
        Docket, with no involvement by [the trial court], and has
        remained there throughout the proceedings.

                                      ...

        [Appellant] also bases his motion on [the trial court], in its
        order dated May 9, 2014, having reminded [Ms. Yunik] to
        file a brief prior to the scheduled hearing on her preliminary
        objections.       This [Appellant] deems to have been
        inappropriate legal advice. . . .

        [Ms. Yunik] had not (as of that date) filed her brief, as
        required by Rule 307(5)(c) of the Crawford County Rules of
        Civil Procedure. [Appellant], having filed his brief at the
        time he praeciped for argument, needed no reminder.
        Monitoring compliance with procedural rules is largely left to
        the courts, and a directive in that regard does not constitute
        an expression of partiality.

                                      -5-
J-S76034-14



Trial Court Opinion, 6/5/14, at 1-2 (some internal capitalization omitted).

      Based on the record, we conclude that the trial court did not abuse its

discretion when it denied Appellant’s frivolous “Motion for Disqualification of

Judge.” Appellant’s claim to the contrary fails.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2014




                                     -6-
