Joseph v. Scranton Times L.P.

• Decision Date: 04 November 2009
• Docket Number: No. 19 MM 2009,19 MM 2009
• Citation: 987 A.2d 633
• Parties: Thomas A. JOSEPH, Thomas J. Joseph, Acumark, Inc., Airport Limousine and Taxi Service, Inc., and Airport Taxi, Limousine and Courier Service of Lehigh Valley, Inc. v. The SCRANTON TIMES L.P., The Times Partner, Edward J. Lynett, Jr., George V. Lynett and Cecelia Lynett Haggerty, The Scranton Times, Inc., Shamrock Communications, Inc., ZYXW, Inc., James Conmy and Edward Lewis. Petition of: The Scranton Times L.P., The Times Partner and Edward Lewis.
• Court: Pennsylvania Supreme Court

987 A.2d 633

Thomas A. JOSEPH, Thomas J. Joseph, Acumark, Inc., Airport Limousine and Taxi Service, Inc., and Airport Taxi, Limousine and Courier Service of Lehigh Valley, Inc. v. The SCRANTON TIMES L.P., The Times Partner, Edward J. Lynett, Jr., George V. Lynett and Cecelia Lynett Haggerty, The Scranton Times, Inc., Shamrock Communications, Inc., ZYXW, Inc., James Conmy and Edward Lewis.

Petition of: The Scranton Times L.P., The Times Partner and Edward Lewis.

No. 19 MM 2009

Supreme Court of Pennsylvania.

November 4, 2009.

Kim M. Watterson, Esq., Kevin Charles Abbott, Esq., Walter Thomas McGough, Jr., Esq., Pittsburgh; John Timothy Hinton, Jr., Esq., Haggerty, McDonnell, O'Brien & Hinton, LLP, Scranton, for The Scranton Times L.P., The Times Partner, and Edward Lewis, Petitioner.

George Croner, Esq., Christina Connie Donato Saler, Esq., Kohn, Swift & Graf, P.C., Philadelphia; Timothy Paul Polishan, Esq., Kelley & Polishan, LLC, Old Forge,

for Thomas A. Joseph, Acumark, Inc., Airport Taxi, et al., Respondent.

ORDER

PER CURIAM.

AND NOW, this 4th day of November, 2009, this Court having assumed plenary jurisdiction over this case by order dated April 7, 2009; and having specially appointed the Honorable William H. Platt, President Judge of the Court of Common Pleas of Lehigh County, to preside over a remand of this matter; and the Court having received and considered the Report and Recommendation of President Judge Platt, as well as the Exceptions of Respondents, the Petitioners' Reply to the Exceptions, and the Respondents' Reply to the Response of Petitioners, treated as a Sur-Reply, it is hereby ORDERED as follows:

(1) Respondents request that we decline to adopt President Judge Platt's recommendation that Petitioners be granted a new trial. Respondents assert that we should "decline the recommendations contained in the Report that, admittedly or not, are grounded upon [Robert] Kulick's hearsay allegations and unsustainable on the evidence in the record[.]" Exceptions at 50. Kulick, a convicted felon, testified at the remand hearing before President Judge Platt. Respondents reference that portion of Kulick's testimony in which he reported that, while this case was pending before former Judge Mark A. Ciavarella for bench trial, former President Judge Michael T. Conahan made comments to convicted felon William D'Elia, which D'Elia related to Kulick, that Respondents would prevail. Respondents assert that this testimony constituted inadmissible hearsay. Furthermore, Respondents assert that it is critical to resolve this hearsay issue because, without this portion of Kulick's testimony, President Judge Platt's recommendation that a new trial be granted lacks adequate record support. It is noted, however, that President Judge Platt explicitly stated that, even if he had found that those portions of Kulick's testimony were inadmissible hearsay, there was sufficient independent evidence of judicial impropriety concerning the assignment and trial of this case that his recommendation would have remained the same. See Report at 29 n.8.

Under our April 7, 2009 order exercising jurisdiction, President Judge Platt was authorized to recommend a new trial if he determined that Petitioners established that there was "an appearance of impropriety in either the assignment or trial of this case." The Pennsylvania Constitution directs that the courts shall provide remedies "by due course of law, and right and justice [are to be] administered without sale, denial or delay." PA. CONST. art. I, § 11. Article V empowers this Court with "general supervisory and administrative authority over all the courts and justices of the peace...." PA. CONST. art. V, § 10(a). This Court previously has recognized that even the "appearance of impropriety is sufficient justification for the grant of new proceedings before another judge.... A jurist's impartiality is called into question whenever there are factors or circumstances that may reasonably question the jurist's impartiality in the matter." In Interest of McFall, 533 Pa. 24, 617 A.2d 707, 712-13 (1992). The McFall Court further explained that, "[a] tribunal is either fair or unfair. There is no need 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." Id. at 714. Notably, in McFall, this Court stressed that it was not relying "on the United States Constitution or federal case law," id. at 714 n. 6, in enforcing these precepts. Similarly, we made clear that the award of new proceedings in McFall was not predicated on a finding of a due process violation. Id. at 712. McFall proceeded as an exercise of this Court's inherent constitutional powers governing judicial administration. See PA. CONST. art. V, § 10(a).

Having independently reviewed the record and the parties' filings, we now agree with President Judge Platt that the evidence of record independent of Kulick's alleged hearsay statements amply demonstrated that the assignment and the trial of this case was infected with the appearance of judicial impropriety such that a new trial must be granted. Accordingly, in the interest of justice, and in the exercise of our constitutional powers of supervision of the lower courts, we adopt President Judge Platt's recommendation of a new trial, to remedy the pervasive appearance of impropriety in this case, and to give justice, and the appearance of justice, an opportunity to prevail.

Petitioners adequately demonstrated that, in response to Petitioners' repeatedly voiced concerns that Respondents were judge-shopping to have Ciavarella assigned to preside over this matter, both Conahan and Ciavarella reassured Petitioners that the case would be assigned randomly for trial. The evidence adduced at the hearing, however, showed these reassurances to be misleading, or even plainly false, as such random assignment did not occur as a matter of course in Luzerne County at that time, and certainly did not occur in this case. Indeed, the manner in which Ciavarella was assigned to preside over this case was so unusual that the long-time Luzerne County Deputy Administrator...