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GERALD J. REILLY v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND VANCE ZIEGANFUSS AND WILLIAM M. BAKER AND BERNICE S. BAKER. APPEAL SOUTHEASTERN TRANSPORTATION AUTHORITY AND VANCE ZIEGANFUSS (06/08/84)

filed: June 8, 1984.

GERALD J. REILLY, A MINOR, BY WILLIAM J. REILLY AND ELIZABETH C. REILLY, HIS PARENTS AND NATURAL GUARDIANS, AND WILLIAM J. REILLY AND ELIZABETH C. REILLY, IN THEIR OWN RIGHT
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND VANCE ZIEGANFUSS AND WILLIAM M. BAKER AND BERNICE S. BAKER. APPEAL OF SOUTHEASTERN TRANSPORTATION AUTHORITY AND VANCE ZIEGANFUSS, APPELLANTS



No. 1627 PHILA. 1983, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 5221 December Term 1979.

COUNSEL

David P. Bruton, Philadelphia, for appellants.

Robert C. Daniels, Philadelphia, for appellees.

Spaeth, President Judge, and Brosky and Johnson, JJ. Johnson, J., filed a concurring and dissenting opinion.

Author: Spaeth

[ 330 Pa. Super. Page 428]

This is an appeal from the entry of judgment on a verdict of $9,815,525 for injuries suffered in an accident involving a bus owned by appellant Southeastern Pennsylvania Transportation Authority (SEPTA) and driven by appellant Vance Zieganfuss. For convenience, we shall generally refer to both appellants as "SEPTA." SEPTA argues: (1) that it is entitled to judgment notwithstanding the verdict because there was insufficient evidence of its negligence: (2) that it is entitled to a new trial because the trial judge should have recused himself; (3) that it is entitled to a new trial because the trial judge erred in his conduct of the voir dire and in the charge to the jury; and (4) that at least it is entitled to a new trial limited to the issue of damages. The first argument is without merit. On the second argument, the record is insufficient, for it shows only that recusal may have been required, not that it was required; we therefore remand for further hearing. On the third argument, we decline to review SEPTA's allegations of trial error prior to a resolution of the recusal issue. And on the fourth argument, we hold that there was error in the determination of damages that must be corrected either at a new trial limited to the issue of damages, or if a new trial is ordered after remand, at that trial.

This action arises from an accident that occurred on February 20, 1978. Gerald J. Reilly, then fourteen years old, and two of his friends were passengers in a SEPTA bus. When the bus stopped at the intersection of West Baltimore Avenue and Runnemede Street in Lansdowne, Pennsylvania, Gerald got off. While the bus waited, he walked in front of the bus to cross Baltimore Avenue, and was hit by an automobile passing the bus on the bus driver's side.

[ 330 Pa. Super. Page 429]

Gerald's parents, William J. Reilly and Elizabeth C. Reilly, on Gerald's behalf and in their own right,*fn1 sued SEPTA, the bus driver, Vance Zieganfuss, and the driver of the automobile that hit Gerald, William M. Baker, and his mother, Bernice S. Baker. The case was tried before the Honorable I. Raymond KREMER and a jury. The jury awarded damages totaling $7,875,000 and apportioned liability as follows: 65% to Baker, 30% to SEPTA, and 5% to Gerald. The trial court reduced the award by $15,000, the amount of wage loss benefits payable under the No-Fault Act. The court further reduced the award by 5% to reflect Gerald's negligence. Finally, the court added delay damages pursuant to Pa.R.C.P. 238, resulting in a molded award of $9,815,525. SEPTA and Zieganfuss filed a motion for judgment n.o.v. or in the alternative for new trial.*fn2 The court en banc dismissed the motion, judgment was entered on the verdict as molded, and SEPTA and Zieganfuss filed this appeal.

-1-

SEPTA first argues that there was insufficient evidence of its negligence to support the verdict, and that it is therefore entitled to judgment n.o.v. This argument is without merit. SEPTA admitted that Zieganfuss, the bus driver, was its agent, and although some of the evidence was controverted, when viewed in the light most favorable to Gerald, Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973), it was sufficient for the jury to find that the driver was negligent.

On the day of the accident snow along the sides of Baltimore Avenue prevented the driver from pulling the bus up to the curb when stopping to allow passengers to get on or off. N.T. Feb. 22, 1983, at 20-22. When the bus was

[ 330 Pa. Super. Page 430]

    stopped to let Gerald off, its left wheels were on or over the center line of the road. Id. at 60. The bus driver testified that at the place he stopped the bus there was a path in the snow from the bus to the sidewalk. Id. at 21-22. He also testified that when he stopped the bus, a woman was standing in the path waiting to get on, so that in getting off, Gerald jumped onto the snow bank between the bus and the curb. Id. at 32.

Gerald was on the bus with two friends, Terry Ringler and William Boyce. Terry testified that Gerald got off the bus before he did, and that while he was still on the bus, he heard the bus driver beep his horn and saw the driver wave Gerald across the street. N.T. Feb. 11, 1983, at 519. Gerald started to cross the street, but just after he had passed the front of the bus he was hit by an automobile passing the bus on the bus driver's side. He was seriously and permanently injured. William testified that he heard the bus driver beep his horn before Gerald was hit. Id. at 574, 596. The bus driver testified that he did not blow his horn, and that although he may have pointed to the fare box, he did not make a hand signal to Gerald. N.T. Feb. 22, 1983, at 35, 115, 116. He further testified that he knew he was holding up traffic; that there were at least ten automobiles behind him; and that in such a situation, automobiles tended to pass, illegally, on the left side of the bus. Id. at 27, 71. He further testified that when he stopped, he put on his right turn signal but not his flashers, id. at 31; that he knew the bus was on or over the center line, id. at 60; and that he did not look in his rearview mirror to check the traffic while he was stopped and before Gerald was hit, id. at 77.

From this evidence the jury was entitled to find that while Gerald was on the snow bank, the bus driver beeped his horn and waved Gerald across the street in front of the bus, and that the driver took these actions without first checking his rearview mirror or putting on his flashers, and knowing that traffic was backed up behind him and that in such a situation, automobiles tended to pass the bus on the

[ 330 Pa. Super. Page 431]

    left. From these findings the jury was entitled to proceed to the conclusion that the driver was negligent.

-2-

(a)

SEPTA's first argument for a new trial is that the trial judge should have recused himself. SEPTA assigns four reasons in support of this argument. The record is sufficient for us to determine the merit of the first two reasons, but not of the last two. We must therefore remand so that a judge other than the trial judge may receive further evidence and determine on the basis of a complete record whether the trial judge should have recused himself.

(i)

SEPTA argues that the trial judge should have recused himself because he was hostile to SEPTA's trial counsel, Stuart Schwartz. In support of this argument SEPTA cites statements the judge made to Mr. Schwartz during oral argument in another case, before this case was tried. We find that SEPTA has waived this argument. Mr. Schwartz first raised the judge's alleged hostility to him as a basis for recusal by oral motion made at a pre-trial conference on June 23, 1982. The judge denied any hostility but nevertheless granted SEPTA leave to file a written motion for recusal within five days. SEPTA, however, filed no such motion until the morning of trial, February 8, 1983. Not only has SEPTA offered no excuse for this delay but the record shows that it has no excuse, for its counsel had knowledge of the facts forming the basis of the motion when the motion was first made orally, on June 23, 1982.

In any event, SEPTA's argument is without merit. The trial judge assured Mr. Schwartz that although he had disagreed with him in the prior case, he bore him no antipathy, N.T. Feb. 8, 1983, at 27, and we find nothing in the judge's statements in the prior case that persuades us that we should reject this assurance. In this regard, we note that SEPTA's argument that the judge was so hostile as to require recusal is "confined to the court's participation

[ 330 Pa. Super. Page 432]

    in the former trial," Commonwealth v. Boyle, 498 Pa. 486, 491 n. 6, 447 A.2d 250, 252 n. 6 (1982); it is not based on anything that occurred apart from that trial. As will appear, SEPTA's remaining arguments for recusal are not so confined.

(ii)

SEPTA also argues that the trial judge should have recused himself because counsel for Gerald and his parents, Robert Daniels, had represented the judge in a class action. According to SEPTA, Mr. Daniels's past representation of the judge required the judge to recuse himself because, in the words of Canon 3 C of the Code of Judicial Conduct, it created a situation "in which [the judge's] impartiality might reasonably be questioned." We are not persuaded by this argument.

We acknowledge that perhaps sometimes an attorney's past representation of a judge will be enough by itself to create such an appearance of impropriety that the judge may not preside in later cases in which that attorney appears. Cf. Bole v. Nationwide Insurance Co., 475 Pa. 187, 379 A.2d 1346 (1977) (when contract calls for disinterested arbitrators, past representation of one of parties by designated arbitrator disqualifies that arbitrator). In appraising the significance of past representation, however, the fact that it is past must be recognized. Thus, the appearance arising from the fact of past representation will ordinarily be much less disturbing than the appearance arising from concurrent representation. For it is more likely to appear to a reasonable person that the judge's conduct of the trial might not be impartial when one of the attorneys is, even as the trial is being held, representing the judge. See Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) (plaintiff's attorney was representing judge, albeit nominally, in several pending unrelated matters); Texaco v. Chandler, 354 F.2d 655 (10th Cir. 1965), cert. denied, 383 U.S. 936, 86 S.Ct. 1066, 15 L.Ed.2d 853

[ 330 Pa. Super. Page 433]

(1966) (one of plaintiff's attorneys was at time of trial defending judge in another action brought against judge personally); DeCamp v. Good Samaritan Hospital, 66 A.D.2d 766, 410 N.Y.S.2d 671, (1978) (attorney for defendant revealed that he or his firm was also representing member of malpractice panel in unrelated malpractice action); ABA Committee on Ethics and Professional Responsibility Informal Opinion No. 1477 (August 12, 1981) (judge must recuse himself in cases in which a litigant is represented by an attorney also representing judge in a personal matter or matter pertaining to his official conduct); ABA Committee on Ethics and Professional Responsibility Informal Opinion No. 1331 (June 25, 1975) (advisable for firm representing judge in action not to appear before that judge).

Here, Mr. Daniels's past representation of the trial judge was not in a matter personal to the judge; it was in a class action seeking increased compensation for all Pennsylvania trial judges. Kremer v. Barbieri, 48 Pa. Commw. 557, 411 A.2d 558, aff'd, 490 Pa. 444, 417 A.2d 121 (1980). The fact that the trial judge was the named plaintiff in the class action was not significant, for as members of the class all of the trial judges stood to gain or lose by the decision. Were we to hold that the trial judge should have recused himself only because as a member of the class he had been represented by Mr. Daniels, it would follow that no trial judge could preside in any case in which Mr. Daniels appeared. In such a situation, the so-called "rule of necessity" becomes operable. See, e.g., United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980) (although 28 U.S.C. § 455 on its face requires recusal of all federal judges due to personal interest in outcome of suit challenging laws designed to reduce cost of living increases for federal judges, under rule of necessity Justices may hear and decide the case); Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979), cert. denied, 449 U.S. 1076, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981) (since all federal judges have an interest in case challenging constitutionality of act requiring financial

[ 330 Pa. Super. Page 434]

    disclosure by judges, trial judge did not err in refusing to disqualify himself); Philadelphia v. Fox, 64 Pa. 169, 185 (1870) ("The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest -- where no provision is made for calling another in, or where no one else can take his place -- it is his duty to hear and decide, however disagreeable it may be."); ABA Committee on Ethics and Professional Responsibility Informal Opinion No. 1477, supra (under rule of necessity, if a party's attorney also represents court or judicial system in matter pertaining to judicial salaries, disqualification may not be required).

(iii)

SEPTA also argues that the trial judge should have recused himself because his son-in-law, Robert Mongeluzzi, is affiliated with the firm of Daniels, Golden and Saltz, P.C., which represented Gerald and his parents.

Canon 3 C of the Code of Judicial Conduct, adopted by our Supreme Court, effective January 1, 1974, 455 Pa. at xxxix (1973), provides in part:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: . . .

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: . . .

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding . . . .

(Emphasis added.)

Counsel for Gerald argues that under Canon 3 C, recusal is required only if the trial judge subjectively determines that he is unable to be impartial. This view of the law is plainly and fundamentally mistaken. To be sure, if the judge does subjectively feel unable to be impartial, he must recuse himself. But Canon 3 C sets forth an objective

[ 330 Pa. Super. Page 435]

    standard: no matter how the judge himself feels, if "his impartiality might reasonably be questioned," recusal is required. The question, therefore, is not how the judge appraises the situation but how a detached observer -- the common law's "reasonable man" -- would appraise it. If a reasonable observer would conclude that the situation is such that the judge's "impartiality might reasonably be questioned," the judge should recuse himself. The party claiming that the judge should have recused himself is therefore under no obligation to show any actual prejudice -- to show, that is, that subjectively, or in fact, the judge was not impartial; it is enough to show that a reasonable observer might have questioned the judge's impartiality. Thus our Supreme Court has stated:

A jurist's impartiality is called into question whenever he has doubts as to his ability to preside objectively and fairly in the proceeding or where there exists [ sic ] factors or circumstances that may reasonably [bring into] question the jurist's impartiality in the matter.

Commonwealth v. Boyle, 498 Pa. at 490 n. 4, 447 A.2d at 252 n. 4 (emphasis added).

See also Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963) (denial of habeas corpus petition reversed and record remanded for disposition before different judge despite record that shows no actual prejudice); Commonwealth ex rel. Armor v. Armor, 263 Pa. Super. 353, 398 A.2d 173 (1978) (remand for assignment of out-of-county judge or grant of change of venue despite review of record showing no actual bias; court evenly divided on whether there was an appearance of impropriety.*fn3

[ 330 Pa. Super. Page 436]

As will have been observed, Canon 3 C does not attempt a comprehensive recitation of instances in which the judge's impartiality might reasonably be questioned. Instead, it recites only certain instances, stating that the judge should recuse himself "in a proceeding . . . including but not limited to" such instances. Two of the instances thus specified as requiring recusal concern "a person within the third degree of relationship to [the judge] or the spouse of such a person." These are the instances that we must examine here, for as the trial judge's son-in-law, Mr. Mongeluzzi was "the spouse of such a person," i.e., of a person "within the third degree of relationship." More specifically, he was the spouse of a person within the first degree of relationship to the judge.*fn4

One instance specified by Canon 3 C as requiring recusal is where the spouse of a person within the third degree of relationship to the trial judge "is acting as a lawyer in the proceeding." Canon 3 C(1)(d)(ii). However, nothing in the record suggests, and SEPTA does not claim, see its brief at 16, that Mr. Mongeluzzi was acting as a lawyer in this case.

A second instance specified by Canon 3 C as requiring recusal is where the spouse of a person within the third degree of relationship to the trial judge "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." Canon 3 C(1)(d)(iii). SEPTA argues that this provision required the trial judge to recuse himself. SEPTA disclaims any knowledge of Mr. Mongeluzzi's compensation or of the exact nature of his affiliation with or prospects at the law firm of Daniels, Golden and Saltz, P.C. It asserts, however, that a verdict of the size returned in this case -- $9,815,525 -- will likely

[ 330 Pa. Super. Page 437]

    buttress the reputation of the firm, to Mr. Mongeluzzi's benefit. We acknowledge that this argument has some force. We have concluded, however, that it goes too far, which is to say, that before we can decide whether recusal was required by Canon 3 C(i)(d)(iii), the record must contain more facts than it does now.

The comment to Canon 3 C states:

The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that 'his impartiality might reasonably be questioned' under canon 3 C(1), or that the lawyer-relative is known by the judge to have an interest in the law firm that could be 'substantially affected by the outcome of the proceeding' under Canon 3 C(1)(d)(iii) may require disqualification.

(Emphasis added.)

In considering when a lawyer-relative's affiliation with a firm will constitute "appropriate circumstances . . . requir[ing] disqualification," it is useful to examine federal cases, for the federal statute governing disqualification of federal judges, 28 U.S.C. § 455, was patterned after the Code of Judicial Conduct. The federal statute provides in relevant part:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances: . . .

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person: . . .

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding . . . .

[ 330 Pa. Super. Page 438]

Several federal courts have dealt with the problem of whether under the federal statute a judge is disqualified from proceeding in a case because a relative within the third degree of relationship to the judge is affiliated with a firm representing a party in the case. Generally stated, the outcome has depended on the particular facts of each case.

In SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977), the court held that recusal was required under 28 U.S.C. § 455(b)(5)(iii). The judge's brother was a senior partner in a relatively small firm that was representing the defendant. The court noted that the case involved millions of dollars, and that as a partner the brother had a substantial interest in the firm's reputation and good will. In Potashnick v. Port City Construction Co., supra, the court stated that whenever a partner in a firm representing a party is related to a judge within the third degree, recusal is required under § 455(b)(5)(iii). The court cited Advisory Committee on Judicial Activities Advisory Opinion No. 58 (August 9, 1978), in which the Committee stated that under the Code "[a] judge is disqualified and should recuse if a relative within the third degree of relationship to the judge or his spouse . . . is a partner in a law firm appearing in the case . . . ."

In United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456 (5th Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978), the court held that recusal was not required. The judge's son was an associate in the firm representing a party. The court stated that the son's salary interest as an associate was too remote to require recusal under § 455(b)(5)(iii). In Miller Industries, Inc. v. Caterpillar Tractor Co., 516 F.Supp. 84 (S.D.Ala. 1980), the court also held that recusal was not required under § 455(b)(5)(iii). The judge's father was of counsel to the firm that represented the plaintiffs. The firm had 33 members and the judge's father had no financial interest that could be substantially affected by the outcome of the case. He was paid a fixed salary of $12,000 and was provided secretarial services, an office, a parking space, and club dues. The

[ 330 Pa. Super. Page 439]

    court also held that given his retired status, the father had no substantial "other interest" in the firm, such as an interest in the firm's reputation.

In Advisory Committee Opinion on Judicial Activities No. 58, the Committee stated that under the Code "[a] judge is disqualified and should recuse if a relative within the third degree of relationship to the judge or his spouse . . . will profit or lose from the judge's action in the case either financially or otherwise, for example, the reputation of the firm would be significantly affected by the litigation." The Committee also stated that "[f]requently the relative's compensation from the law firm is in no manner dependent upon the result of the particular case before the judge. If compensation is affected, then whether the judge's relative is designated a partner, or associate, or by some other term, we conclude the judge should recuse."

Here, as we have indicated, SEPTA may be correct in its claim that the large verdict returned in this case will likely buttress the reputation of the Daniels firm to Mr. Mongeluzzi's benefit. We are persuaded by the federal cases, however, that recognition of this possibility is not enough by itself to warrant a decision that the trial judge was required to recuse himself under Canon 3 C(1)(d)(iii). Rather, we believe we must know more: Exactly what was Mr. Mongeluzzi's "interest" in the Daniels firm? Could that interest be "affected by the outcome of [this case]," and if so, could it be "substantially affected"? And what was "known by the judge" regarding Mr. Mongeluzzi's interest? Since the record does not now contain enough facts to permit an answer to these questions, we must remand for a hearing so that the record may be made complete.

(iv)

SEPTA's final argument with respect to recusal is that the trial judge was required to recuse himself because his step-nephew, Richard Haaz, who is also affiliated with the Daniels firm, is a former law clerk of the judge, acted as a lawyer in this case, and concurrently represented the judge in another unrelated case. In this same regard,

[ 330 Pa. Super. Page 440]

SEPTA alleges that before his elevation to the bench, the trial judge represented Mr. Haaz's mother.

In considering the several aspects of SEPTA's argument, it is convenient to start with the fact that Mr. Haaz acted as a lawyer in this case. (The parties are in dispute as to the extent of Mr. Haaz's participation, and the record on this issue is not complete, but for purposes of our present discussion it is not important how extensive Mr. Haaz's participation was.) It will be recalled from our preceding discussion that if a person within the third degree of relationship to the trial judge "is acting as a lawyer in the proceeding," recusal is required under Canon 3 C(1)(d)(ii). SEPTA claims that Mr. Haaz is such a person. This argument is without merit, for a step-nephew is not within the third degree of relationship.

Canon 3 C(3)(a) provides that the degree of relationship is to be calculated according to the civil law system, which traditionally recognizes only blood relationships. See supra n. 4. Nevertheless, SEPTA argues that Canon 3 C(1)(d) should be interpreted to include relationships by affinity; that affinity encompasses relationships by marriage; and that as the son of the judge's brother's wife, Mr. Haaz and the judge are related within the third degree by marriage. This argument errs in two respects: First, as defined at common law, "affinity" does not exist between a step-nephew and his step-uncle. Second, Canon 3 C(1)(d) of the Code of Judicial Conduct expressly provides its own rule of affinity, and this rule does not encompass a step-nephew.

As defined at common-law, "affinity" is the relationship that arises by marriage between the wife and blood relatives of the husband and between the husband and blood relatives of the wife. See generally 2A C.J.S. at 512-15 (and cases cited therein). See also Kirby v. State, 89 Ala. 63, 8 So. 110 (1889); State ex rel. Perez v. Wall, 41 Fla. 463, 26 So. 1020 (1899); McLendon v. State, 187 Miss. 247, 191 So. 821 (1939); Wilson v. Greenacres Country Club, 41 N.J.Super. 530, 125 A.2d 539 (1956); Johnson v. State, 169 Tex.Crim. 1461, 332 S.W.2d 321 (1960). Under the common

[ 330 Pa. Super. Page 441]

    law definition, therefore, the judge is related by affinity to the blood relatives of his spouse and to the spouses of his blood ...


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