                             [J-19-2017][M.O. – Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


ROY H. LOMAS, SR., D/B/A ROY LOMAS           :   No. 87 MAP 2016
CARPET CONRACTOR,                            :
                                             :   Appeal from the Order of the Superior
                  Appellee                   :   Court dated 12/21/15 at No. 2391 EDA
                                             :   2011 affirming the judgment of the
             v.                              :   Court of Common Pleas of Montgomery
                                             :   County, Civil Division, entered on
                                             :   8/16/11 at No. 2000-05929
JAMES B. KRAVITZ, CHERRYDALE                 :
CONSTRUCTION CO., ANDORRA                    :
SPRINGS DEVELOPMENT, INC., AND               :
KRAVMAR, INC. F/K/A EASTERN                  :
DEVELOPMENT ENTERPRISES INC.,                :
                                             :
                  Appellants                 :   ARGUED: March 8, 2017




                                DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                   DECIDED: September 28, 2017

      Although I agree with the majority that a motion for recusal must be promptly

filed, my view diverges from the majority’s application of the “earliest possible moment”

standard and its conclusion that Appellants’ filing was untimely. Majority Opinion, slip

op. at 15. I believe that, in the circumstances presented, Appellants’ submission was

not late, and further, they demonstrated an appearance of impropriety, warranting the

recusal of the full Montgomery County bench.

      Beginning with the “earliest possible moment” precept, the language of this

standard, if taken literally, suggests that an immediate response is required, akin to an

evidentiary objection, which I believe is problematic in the recusal context.        For

example, the Superior Court’s Opinion in Support of Affirmance (“OISA”) in this matter
indicated that Appellants were required to halt the proceedings and file a recusal motion

immediately following Judge Branca’s testimony that revealed his financial interest,

rather than proceed with the other witnesses who were present and prepared to testify

that day.   See Lomas v. Kravitz, 130 A.3d 107, 120 (Pa. Super. 2015) (en banc)

(OISA).1    In this respect, the majority’s reasoning does not elaborate what

considerations or circumstances generally inform the timeliness analysis. Instead, it

merely recites the number of elapsed days and observes that the parties’ evidentiary

presentations had concluded.

       As the United States Supreme Court has cautioned, a request for recusal “should

not be made lightly.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 826-27, 106 S. Ct.

1580, 1588 (1986) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149

(1923) (explaining that recusal motions should be filed with “care and good faith”)); In re

Crawford's Estate, 307 Pa. 102, 109, 160 A. 585, 587 (1931) (“The charge of

disqualification is serious, and should not be made lightly or frivolously.”). “[A] request

for the disqualification of a trial judge is a most serious undertaking which should not be

pursued absent thorough factual investigation and legal research.” Johnson v. Dist.

Court In & For Jefferson Cty., 674 P.2d 952, 957 (Colo. 1984).

       Even though judges are presumed to be impartial arbiters and conscientious of

potential biases and appearances of such, some practitioners express reservations that

seeking recusal will be taken personally by the judge to the detriment of the client and

counsel.    See Debra Lyn Bassetta, Rex R. Perschbacher, The Elusive Goal of

1
  The Superior Court OISA also indicated that Appellants had an opportunity to seek
recusal when they were informed of Judge Branca’s prior representation. See Lomas,
130 A.3d at 120 (OISA). I agree with the majority, however, that Appellants were not
aware of all the facts relevant to their recusal motion until Judge Branca testified on
September 6, 2007. See Majority Opinion, slip op. at 18.



                             [J-19-2017][M.O. – Baer, J.] - 2
Impartiality, 97 IOWA L. REV. 181, 204 (2011) (acknowledging attorneys’ concerns that

the suggestion of disqualification “has the potential to antagonize the challenged judge,

either consciously or subconsciously, with the result that the moving litigants and their

counsel may suffer” (quoting RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL

AND   DISQUALIFICATION   OF   JUDGES §1.7, at 18 (2d ed. 2007))).    Thus, the perceived

potential for retribution may cause counsel to be reluctant to file a motion in the first

instance. See Jeffrey Cole, Jilting the Judge: How To Make and Survive a Motion To

Disqualify, 34 LITIGATION, no. 2, Winter 2008, at 48 (“Lawyers are as quick to see bias as

they are reluctant to file disqualification motions.”). Additional reluctance may stem from

a lack of substantial information supporting the request, apart from speculation and

hearsay. See Amanda Frost, Keeping Up Appearances: A Process-oriented Approach

to Judicial Recusal, 53 U. KAN. L. REV. 531, 568-69 (2005) (observing that, in many

instances, a party will only possess uncorroborated information and noting that there

are rarely procedures for investigating speculation or gossip, thus resulting in a

reluctance to advance a disqualification claim).

       Further, there is arguably some procedural ambiguity in Pennsylvania’s recusal

jurisprudence that may result in requests not being sought with absolute immediacy.

Relative to initiating a recusal request, the case law has variously referred to an

“application by petition” or the filing of a “motion,” Reilly by Reilly v. SEPTA, 507 Pa.

204, 220, 489 A.2d 1291, 1299 (1985), as well as the lodging of an “objection,”

Goodheart v. Casey, 523 Pa. 188, 199, 565 A.2d 757, 763 (1989); see also Reilly, 507

Pa. at 222, 489 A.2d at 1300 (“In order to preserve an issue for appeal, [the party has]




                               [J-19-2017][M.O. – Baer, J.] - 3
to make a timely, specific objection at trial and raise the issue on post-trial motions.”

(emphasis in original)).2

       Although this historical lack of consistency may be attributable to deviations in

nomenclature, it is notable that there are no statutory or rules-based procedures for

recusal in Pennsylvania, as there are in other jurisdictions.3 See, e.g., 28 U.S.C. §144

(“Bias or prejudice of judge”), §455 (“Disqualification of justice, judge, or magistrate

judge”); ALASKA STAT. §22.20.022 (“Peremptory disqualification of judge”); Alaska

R.Crim.P. 25 (“Judge—Disqualification or Disability”); Colo.R.C.P. 97 (“Change of

Judge”); Fla.R.Jud.Admin. 2.330 (“Disqualification of Trial Judges”); Ind. R. Trial P. 76

(“Change of venue”). The only written directive that arises in the recusal context comes

by way of reference to Rule 2.11 of the Code of Judicial Conduct, which has been

employed to inform the recusal standard. See Goodheart, 523 Pa. at 200, 565 A.2d at

763 (suggesting that a judge’s self-evaluation of impartiality is guided by the factors

provided in the Code of Judicial Conduct); Kenneth S. Kilimnik, Recusal Standards for

Judges in Pennsylvania: Cause for Concern, 36 VILL. L. REV. 713, 726 (1991) (“Since


2
  Tangentially, there is some criticism of the Reilly Court’s recusal analysis (which later
cases frequently referenced) insofar as it relied on In re Crawford’s Estate, 307 Pa. 102,
160 A. 585 (1931). Specifically, Reilly adopted the recusal procedures from Crawford’s
Estate without acknowledging that the Crawford’s Estate Court’s explication pertained to
the then-existing recusal statutes, which had been repealed prior to the Reilly decision.
See Kenneth S. Kilimnik, Recusal Standards for Judges in Pennsylvania: Cause for
Concern, 36 VILL. L. REV. 713, 725-27 (1991).

3
  Although not applicable in civil matters, such as the present case, the Rules of
Criminal Procedure require that requests for disqualification be included in an omnibus
pretrial motion for relief. See Pa.R.Crim.P. 578, Comment (7). The Comment further
advises that this rule is “not intended to limit other types of motions, oral or written,
made pretrial or during trial,” but it encourages the “earliest feasible submission” of such
matters. Id.; see also Pa.R.J.C.P. 346, Comment (same).



                             [J-19-2017][M.O. – Baer, J.] - 4
1974, the Code of Judicial Conduct had provided the sole non-case derived principles in

Pennsylvania governing judicial recusal . . ..”). The lack of codified procedural direction

has been cited as an impediment to requesting recusals.          See Frost, Keeping Up

Appearances: A Process-oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. at

567 (“The very absence of statutorily prescribed procedures discourages lawyers from

moving for disqualification and makes recusal motions all the more ad hoc and

exceptional.”).

       In all, the above concerns reflect significant uncertainties on the part of

practitioners that may reasonably delay the submission of recusal motions.

Accordingly, given the importance of recusals in maintaining the legitimacy of the

judiciary, see Emma J. Payne, Note, Let the Sun Shine in: A Judicially Implied

Timeliness Requirement Creates A Murky Standard for Federal Judges and Litigants

and Perpetuates an Appearance of Bias in the Federal Judiciary, 40 OKLA. CITY U. L.

REV. 597, 606 (2015) (footnote omitted), and this atmosphere of uncertainty, I would not

construe the “earliest possible moment” standard as implicating an objection-like

immediacy mandate for raising a recusal issue on pain of waiver.          Nonetheless, a

timeliness requirement is a necessary component of the recusal framework in order to

avoid unnecessary delays and judge-shopping, both of which impair the judicial

process. Scott v. Pryor (In re Chandler's Cove Inn, Ltd.), 74 B.R. 772, 773 (Bankr.

E.D.N.Y. 1987) (“[R]ecusal motions which are too liberally granted are tantamount to

unilateral ‘judge shopping’ and may be used for a delaying tactic, for their disposition

requires a serious investment of judicial time and thought.”).

       Thus, I believe that questions of timeliness should be subject to a more

discerning analysis, recognizing the above difficulties and providing some notice to

litigants who may be faced with recusal scenarios.         In the absence of delineated


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procedures, I would adopt the four-factor test employed by some federal courts in

assessing whether a party seeking recusal does so at the “earliest possible moment”:

       whether (1) the movant has participated in a substantial manner in trial or
       pre-trial proceedings; (2) granting the motion would represent a waste of
       judicial resources; (3) the motion was made after the entry of judgment;
       and (4) the movant can demonstrate good cause for delay.
United States v. Amico, 486 F.3d 764, 773 (2d Cir. 2007) (quoting Apple v. Jewish

Hosp. & Med. Ctr., 829 F.2d 326, 334 (2d Cir. 1987)). The demonstration of good

cause for delay is “at the crux of the balancing” of these factors. Id. at 775 (quoting

United States v. Brinkworth, 68 F.3d 633, 639 (2d Cir.1995)); cf. Reilly, 507 Pa. at 222,

489 A.2d at 1300 (explaining that moving party had failed to offer an excuse for its delay

in filing the motion for recusal). The federal courts have also viewed this four-factor test

as encompassing a good-faith requirement. See Planned Parenthood of Se. Pa. v.

Casey, 812 F. Supp. 541, 546 (E.D. Pa. 1993) (citing Smith v. Danyo, 585 F.2d 83, 85

(3d Cir. 1978)).

       Applying these factors here, it is evident that Appellants have substantially

participated in the litigation, and that recusal of the trial judge at this late stage of the

proceedings would represent a waste of judicial resources, thus militating toward the

conclusion that the filing was late. However, these two factors must be tempered, at

least in part, by acknowledging that the relevant facts undergirding the recusal motion

arose at this late juncture in the litigation.4 Furthermore, Appellants served Appellee

with a request for production of documents seeking additional information relative to

Judge Branca’s involvement and financial interest on September 24, 2007, only 18 days

4
  In terms of applying the test to situations in which the facts implicating recusal are
discovered near the end of proceedings, these two factors may be viewed as generally
providing less overall guidance.



                              [J-19-2017][M.O. – Baer, J.] - 6
following the pertinent hearing and prior to the closure of the record. Appellee refused

the request and instead later opted to seek a protective order for the sought-after

documentation.

       Regarding the timing of the filing relative to the entry of judgment, although there

had been an adverse judgment against Appellants as to liability, the broader recusal

concerns appear to have pertained to Judge Branca’s financial interest that was

contingent on the calculation of damages and discovered subsequent to the liability

verdict.5 Additionally, Appellants’ filling of the recusal motion on October 15 coincided

with a previously scheduled conference with the judge and parties to address briefing

and final argument; thus, the motion was submitted in advance of any actual or

anticipated intervening action by the court. In this regard, I respectfully differ with the

majority’s determination that the closure of the record, relative to the particulars of this

case, is significantly material to the timeliness inquiry. See Majority Opinion, slip op. at

19. Accordingly, Appellants’ request should be considered as having been forwarded

prior to the entry of judgment.6

       As to the final and most critical factor, good cause for delay, Appellants develop

that they needed to carefully consider their claim for recusal and that they filed prior to

5
  The parties had previously agreed to proceed before Judge Rogers premised on
Appellee’s erroneous representation that Judge Branca’s involvement in the matter had
ended and all of his fees paid. See N.T., Nov. 9, 2007, at 48-49 (Appellee’s counsel
acknowledging that they had indicated that “all counsel fees had been paid” to Judge
Branca).

6
  Although the Superior Court OISA also observed that Appellants’ filing followed James
Kravitz’s “appalling” testimony regarding his financial activity, Lomas, 130 A.3d at 125, it
seems to me that most parties to a litigation will experience adverse circumstances at
some point, particularly in lengthy and complex matters. Thus, although Kravitz’s
testimony may appear particularly harmful, it is difficult to assess its direct import on
Appellants’ reasoning relative to recusal. Accordingly, I limit my rationale to the distinct
actions taken by the trial court.


                             [J-19-2017][M.O. – Baer, J.] - 7
any further advancement of the litigation, assertions which I believe provide reasonable

explanations for the timing of their request.          Furthermore, as previously noted,

Appellants requested discovery pertaining to Judge Branca, and they also retained new

counsel, both of which may be viewed as indicators that Appellants recognized the

gravity of suggesting the recusal of not only the sitting trial judge, but all of his

Montgomery County colleagues. Additionally, an earlier filing -- for example, within the

30-day review period -- would not have caused any less disruption or delay in the

proceedings. See Riley v. State, 608 P.2d 27, 29-30 (Alaska 1980) (relaxing application

of strict time limits on the basis that, inter alia, the later submission did not cause any

additional delay than would have occurred if timely motioned). But see Wakefield v.

Stevens, 290 S.E.2d 58, 61 (Ga. 1982) (concluding that a 20-day delay was untimely).

Accordingly, given the peculiar circumstances of this case and the lack of concrete

procedural guidance, I find that good cause existed to justify Appellants’ filing at the

October 15 conference.         Assessing the sum of these factors, with emphasis on

Appellants’ good cause for delay, I believe the motion for recusal should be deemed

timely.

          Since I would conclude that Appellants did not waive their challenge, I turn to the

primary questions presented for review pertaining to whether the trial judge and/or the

rest of the common pleas court should have recused in light of their colleague’s

participation and direct and proportional financial interest.7



7
  Appellee contends that, since the issues presented for review are framed in terms of
whether recusal was required “as a matter of law,” the Court is precluded from
determining whether Judge Rogers abused his discretion in refusing to recuse. Lomas
v. Kravitz, __ Pa. __, 147 A.3d 517 (2016) (per curiam). From my perspective, the
substance of this matter pertains to the propriety of recusal in the circumstances, and I
do not read the issues in such a strictly constrained manner.


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       Appellants’ advocacy closely tracks the reasoning of the Superior Court’s

Opinion in Support of Reversal (“OISR”), arguing that the appearance of propriety

standard is an independently sufficient basis for recusal, see Goodheart, 523 Pa. at

201-02, 565 A.2d at 764, and that Pennsylvania courts have required recusal in

factually similar situations, see, e.g., Commonwealth ex rel. Armor v. Armor, 263 Pa.

Super. 353, 398 A.2d 173 (1978). They further contend that proper application of the

recusal framework relative to Judge Branca’s financial interest mandates the recusal of

the entire Montgomery County bench, since the disqualifying circumstances would

apply equally to the entire flight of jurists. In Appellants’ view, the trial court and OISA

improperly limited review to only whether actual bias or prejudice existed.

       Appellants also criticize Appellee’s proffered “fully informed person” standard --

assessing the appearance of impropriety from the perspective of a person who is “fully

informed of all . . . surrounding facts and circumstances” and who closely examines

those facts to determine whether the proceedings will be, or were, fairly conducted, or

whether the record reveals actual bias or prejudice.        Brief for Appellee at 15, 32

(emphasis in original). Appellants contend that adopting such a view would essentially

result in a post hoc evaluation of whether the process was fair and just, rather than the

foundational question underlying the appearance inquiry, which is distinctly aimed at

ensuring the public’s faith in the judiciary. Further, Appellants observe that Appellee

offers no procedures for determining “all of the true facts and surrounding

circumstances,” and that to do so would likely require a remand for a hearing and

discovery, much in line with the request for documents that Appellants filed, but which

was denied.    Instead, in Appellants’ view, analyzing the appearance of impropriety

should simply focus on whether “a significant minority of the lay community could

reasonably question the court’s impartiality.” Reply Brief for Appellants at 10 (quoting


                             [J-19-2017][M.O. – Baer, J.] - 9
Commonwealth v. Darush, 501 Pa. 15, 24, 459 A.2d 727, 732 (1983)).                Lastly,

Appellants dispute that they have conceded that the proceedings were fair and without

error, noting that they sought to challenge various aspects of Judge Rogers’ damages

determination, but that such issues were denied by this Court for review.

      In response, Appellee effectively concedes that the appearance of impropriety

may independently warrant recusal, but contends that any application should be made

by reference to the “fully informed” person. Brief for Appellee at 25 (citing Pepsico v.

McMillen, 764 F.2d 458, 460 (7th Cir. 1985), as cited in 207 Pa. Code §15-4). In this

respect, Appellee argues that, since there is no dispute that Judge Rogers ruled

impartially and conducted a fair trial, a person fully informed of these facts could not

view Judge Branca’s intermittent participation and financial interest as establishing an

appearance of impropriety. Stated another way, Appellants’ concession that they had a

fair trial moots any appearance of impropriety. See Reilly, 507 Pa. at 222, 489 A.2d at

1300 (“If the cause is appealed, the record is before the appellate court which can

determine whether a fair and impartial trial were had. If so, the alleged disqualifying

factors of the trial judge become moot.”). Appellee further forwards that this Court has

previously found that the lack of actual prejudice or bias during a trial ameliorates any

concerns regarding an appearance of impropriety. See Brief for Appellee at 28 n.2

(citing In re Lokuta, 608 Pa. 223, 240, 11 A.3d 427, 436-37 (2011)).

      Appellee also contends that, except for matters involving public corruption or

obvious conflicts of the adjudicating judge, the trial judge has discretion to assess the

appearance of impropriety.8 Because this matter does not fall within the narrow subset

of cases that present an appearance of impropriety as a matter of law, see 207 Pa.


8
 I agree with the largely undisputed notion that appellate courts should review recusal
decisions for an abuse of discretion. See Reilly, 507 Pa. at 220, 489 A.2d at 1299.


                            [J-19-2017][M.O. – Baer, J.] - 10
Code §15-4 (advising as to potential categorical scenarios implicating the appearance

of impropriety), it is Appellee’s position that Judge Rogers’ ruling in this matter should

not be overruled.

        Moreover, even if Judge Rogers’ recusal was appropriate, Appellee proffers that,

relative to disqualifying the sum of the Montgomery County bench, the Court should

consider the resulting prejudice to him and Appellants’ ongoing manipulation of the

judicial system. Appellee continues that requiring court-wide recusal in all instances

where a litigant was a former client of a sitting judge and provided a referral fee would

be unworkable. As a final point, Appellee contends that any reliance on Caperton v.

A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009), is misplaced, given the

significantly differing factual circumstances.

        On the merits, my view substantively aligns with the reasoning developed in the

Superior Court’s Opinion in Support of Reversal (“OISR”). See Lomas v Kravitz, 130

A.3d 107, 132-45 (Pa. Super. 2015) (OISR). In particular, I agree that the appearance

of impropriety standard is an independent substantive precept that may warrant recusal,

and that Judge Rogers and the full Montgomery County bench should be recused in this

instance predicated on Judge Branca’s participation and direct and proportional

financial interest in the discretionary damages award despite the presumption that

Judge Rogers and the other jurists would handle the matter with impartiality and

fairness. Further, I believe the OISR correctly recognized that the case law had, in

some instances, mistakenly deemed a trial judge’s decision with regard to the

appearance of impropriety an “unreviewable decision,” when that axiom should only

pertain to a judge’s self-evaluation for actual bias or prejudice. See id. at 138-41 &

n.33.




                             [J-19-2017][M.O. – Baer, J.] - 11
       As for Appellee’s contentions that are not addressed by the OISR’s reasoning, I

remain unpersuaded.       Regarding the notion that the appearance standard should

incorporate the fully informed person framework, I agree that the analysis should be

made in light of all the surrounding facts and circumstances, rather than based on

incomplete or mistaken information.         However, as Appellants cogently observe,

Appellee’s proffered standard effectively reviews whether the proceedings were fair and

just and whether actual bias or prejudice can be found in the record, rather than

addressing the gravamen of the appearance of impartiality inquiry, i.e., whether there

could be a public perception of impartiality that undermines confidence in the judiciary.

See Reilly, 507 Pa. at 221, 489 A.2d at 1299 (“[T]he administration of justice should be

beyond the appearance of unfairness . . . so that courts may as near as possible be

above suspicion . . ..”). In this respect, the Caperton Court’s observation that a “judge's

own inquiry into actual bias . . . is not one that the law can easily superintend or review .

. .” demonstrates the practical difficulty with Appellee’s preferred post-judgment

analysis.   Caperton, 556 U.S. at 883, 129 S. Ct. at 2263.          Further, the Caperton

decision required an objective test to protect due process principles, which is satisfied

by the appearance of impropriety standard. See id.

       Moreover, although the notion of fairness may facially appear to ameliorate

appearance concerns relative to certain objective aspects of the proceedings, the lack

of record evidence proving partiality does little to counter the potential public perception

that a discretionary ruling, such as the damages calculation in this case, was materially

influenced by a judge’s relationship with a financially interested entity. Accordingly, I am

of the view that the appearance of impropriety -- that is, “conduct [that] would create in

reasonable minds a perception that the judge violated [the Code of Judicial Conduct] or

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


                             [J-19-2017][M.O. – Baer, J.] - 12
temperament, or fitness to serve as a judge,” Code of Judicial Conduct Rule 1.2,

Comment [5] -- alone forms an independent basis for recusal, even in the absence of

actual bias, unfairness, or prejudice on the part of the trial judge. See Lomas, 130 A.3d

at 133 (OISR).9

       As to Appellee’s policy perspective, insisting that court-wide recusals, based on a

prior relationship between sitting-judges’ and former clients, would prove unworkable,

this contention seems predicated on a far broader set of factual circumstances than are

at issue in this matter. Here, the Court is concerned only with the implications of a

current judge’s participation and presently existing financial interest that is directly and

proportionally tied to the monetary award determined by a colleague of the same court.

Of course, newly elected judges transitioning from private practice will need to be aware

of the challenges that such a shift presents, but I do not believe that the position

expressed here would impose the significantly disruptive burdens that Appellee

predicts.

       Lastly, although I agree with Appellee that Caperton is distinguishable on its

facts, the import of that case, at least relative to Appellee’s claims, is its due process

based mandate for objective appellate review of the appearance of impropriety, thus

reinforcing the notion that appearances -- apart from actual bias, prejudice, and

unfairness -- are a necessary component of the recusal framework.




9
  The OISR notes that some authorities employ the above language from the Code of
Judicial Conduct, while others follow Appellants’ preferred formulation, pertaining to a
significant minority of the lay community. See Lomas, 130 A.3d at 140 n.31 (OISR).
From my perspective, this is largely a distinction without a difference, although it
appears to me that the former has been referenced with greater frequency than the
later. See, e.g., 207 Pa. Code. §15-4 (formal advisory opinion regarding disqualification
and recusal).


                             [J-19-2017][M.O. – Baer, J.] - 13
       Ultimately, I am of the view that Judge Branca’s participation in this matter and

his present primary financial interest in the monetary damages, assessed by a

colleague who shares the same bench, establishes an appearance of impropriety that

warrants the recusal of the entirety of the Court of Common Pleas of Montgomery

County. Further, I believe that this conclusion requires a new trial as to both liability and

damages before a judge assigned from outside of Montgomery County. Although the

relevant facts apparently were not revealed to Judge Rogers and Appellants until the

damages phase, the appearance of impropriety created by Judge Branca’s participation

and financial interest clouds both phases of the trial, which could have been avoided

had a full disclosure been proffered when the matter initially arose pretrial. See supra

note 5.10

10
    Although the above reasoning would dispose of this matter, there are additional
potential procedural irregularities that emerged in this case relative to Judge Rogers’
initial order for recusal of the full Montgomery County bench, which I believe reinforces
the uncertainty that seems to envelope this area of law in Pennsylvania jurisprudence.

For example, in some jurisdictions, recusal orders may not be reconsidered by the
issuing judge, even if filed “prematurely,” Lomas v. Kravitz, No. 00-05929, at 8 (C.P.
Montgomery Cnty. filed Dec. 31, 2008), or otherwise erroneously submitted. See
Moody v. Simmons, 858 F.2d 137, 143 (3d Cir. 1988) (“Once a judge has disqualified
himself, he or she may enter no further orders in the case[, with power thus] limited to
performing ministerial duties necessary to transfer the case to another judge (including
the entering of ‘housekeeping’ orders).” (citations omitted)). But see United States v.
Lauersen, 348 F.3d 329, 338 (2d Cir. 2003) (concluding that a judge may revisit a
recusal order, citing changed circumstances as an example of circumstances justifying
such).

Additionally, the prevailing view among jurisdictions is that once the recusal order is
signed, the submitting judge is barred from reentering the case, except for narrow
circumstances in which the disqualifying factor is removed, or there was a material error
as to the existence of the recusal-inducing fact. See Luce v. Cushing, 868 A.2d 672,
677-78 (Vt. 2004) (collecting cases). However, there is a minority view that takes a
more strict approach, prohibiting a recused judge from rendering any further decisions
in the case, regardless of circumstances. See Jenkins v. Motorola, Inc., 911 So. 2d
(continued…)
                             [J-19-2017][M.O. – Baer, J.] - 14
(…continued)
196, 197 (Fla. Dist. Ct. App. 2005) (citation omitted); Tatum v. Orleans Par. Sch. Bd.,
894 So. 2d 1180, 1181 (La. Ct. App. 2005) (citation omitted).

Although, in the proper case, the above considerations may be dispositive, the parties’
present advocacy has not been developed along these lines.


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