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L. DAVID HALL v. MARTHA HALL (09/07/84)

filed: September 7, 1984.

L. DAVID HALL, M.D. AND SHARON MCGONIGAL, EXECUTORS OF THE ESTATE OF FRED L. HALL, DECEASED
v.
MARTHA HALL, APPELLANT



NO. 01764 PHILADELPHIA 1982, Appeal from the Order of the Court of Common Pleas, Civil, of Wayne County, at No. 335 1981 D.R.

COUNSEL

Alida O'Hara, Honesdale, for appellant.

Joseph Wright, Jr., Scranton, for appellee.

Wickersham, Montemuro and Montgomery, JJ.

Author: Montemuro

[ 333 Pa. Super. Page 486]

This is an appeal from an order entered by the Honorable Robert J. Conway, President Judge of the Court of Common Pleas of Wayne County, granting a decree in divorce.*fn1

The parties to this case were married in 1952, and lived together until 1974. The husband, Fred L. Hall, commenced the present action by filing a complaint for divorce in which he alleged that the marriage was irretrievably broken. Although the complaint was originally filed in Centre County, appellant/wife, Martha Hall, filed preliminary objections requesting, inter alia, a change of venue to Wayne County. The preliminary objections were sustained. Subsequently, appellant/wife filed an answer and counterclaim averring indignities, and asking for alimony, alimony pendente lite, and equitable distribution.

Various pleadings were then filed by each of the parties, the most central of which were a motion for recusal filed by appellant, and a motion for bifurcation filed by Fred L. Hall. A hearing was held on both of these matters on April 14, 1982. On that same day, the trial judge issued orders denying the motion for recusal, and granting an immediate divorce, but retaining jurisdiction over the economic claims raised by appellant. Exceptions were then filed, and denied by order of court on June 1, 1982. This appeal followed; consequently, all proceedings in regard to economic matters in the lower court were stayed.*fn2 On January 28, 1984,

[ 333 Pa. Super. Page 487]

    while this case was pending on appeal, Fred L. Hall, the appellee, died. By order of June 13, 1984, the executors of his estate, Sharon McGonigal and L. David Hall, were substituted as parties in the case.

Initially, we must deal with the question of whether the lower court erred in refusing to recuse itself. A party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Appellant certainly did not meet that burden here. In her motion for recusal she alleged two possible bases for disqualification, only one of which is raised on appeal. It concerns an ex parte communication which appellant alleged was in violation of Canon 3(A)(4) of the Code of Judicial Conduct. Specifically, the subsection states:

(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, must not consider ex parte communications concerning a pending proceeding.

From the little that was brought out at the April 14 hearing, it seems that the " ex parte " communication appellant refers to is a telephone conversation in which the court informed appellee's attorney when certain Income and Expense Statements had to be filed, and when the hearing on alimony pendente lite would take place. This information or directive was subsequently or simultaneously made subject to court order. Obviously, this is not the type of communication contemplated in the subsection quoted above. It defies logic to suggest that the aim of the provision is to prohibit a judge from considering a communication which he himself makes to another person. Finding

[ 333 Pa. Super. Page 488]

    no abuse of discretion, we hold that the recusal motion was properly denied. Commonwealth v. Kane, 199 ...


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