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decided: March 27, 1985.


No. 146 E.D. Appeal Docket 1984, Appeal from the Superior Court Judgment Order and Opinions dated June 8, 1984 and November 23, 1984, at No. 1627 Philadelphia, 1983, Affirming in Part and Reversing in Part the Order of the Court of Common Pleas of Philadelphia, Trial Division, Civil Section Dated June 6, 1983, Civil Action No. 5221 December Term, 1979, Pa. Superior Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a concurring opinion. Nix, C.j., and Zappala, J., concur in the result.

Author: Papadakos

[ 507 Pa. Page 210]


Gerald J. Reilly, a minor, was a passenger on a SEPTA bus on February 20, 1978. The bus had stopped at the corner of West Baltimore Avenue and Runnemede Street, Lansdowne, Delaware County, Pennsylvania, for him to exit with two friends. While the bus waited, Gerald walked in front of the bus to cross West Baltimore Avenue and was hit by an automobile passing the bus on the bus driver's side. As a result of the accident, Gerald sustained widespread and permanent injuries which have rendered him a quadraplegic. On January 2, 1980, Gerald's parents, William J. Reilly and Elizabeth C. Reilly, instituted an action on their son's behalf and in their own right against SEPTA, its bus driver, Vance Zieganfuss, and the driver of the automobile that struck Gerald, William M. Baker, and his mother,

[ 507 Pa. Page 211]

Bernice S. Baker, owner of the automobile that William M. Baker was driving.

The case was tried before the Honorable I. Raymond Kremer, Judge of the Court of Common Pleas of Philadelphia, and a jury. After a three week trial, the jury returned its verdict on February 24, 1983, in favor of Gerald and awarded him $7,875,000.00 in damages. William Baker was found to be 65% negligent, SEPTA and Zieganfuss, 30% negligent, and Gerald, 5% contributorily negligent. Accordingly, the trial court reduced the verdict by 5% in compliance with the jury's finding of contributory negligence and further reduced the verdict by $15,000.00, the amount of wage loss recoverable under the Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn1 Finally, the court added delay damages permitted by Pa.R.C.P. 238,*fn2 resulting in a molded verdict of $9,815,525.00. SEPTA and Zieganfuss filed Motions for Judgment N.O.V. or, in the alternative, for New Trial.*fn3 A court en banc (Kremer, DiBona and White, JJ.) dismissed the motions, judgment was entered on the verdict as molded, and SEPTA and Zieganfuss filed an

[ 507 Pa. Page 212]

    appeal in the Superior Court. SEPTA raised the following grounds for reversal:

1) There was insufficient evidence of negligence to support the jury's verdict against it; and

2) The trial judge erred in refusing to ask the jury certain voir dire questions proposed by SEPTA; and

3) In charging the jury with respect to SEPTA's duty of care as a common carrier and with respect to Gerald's duty of care; and

4) The trial judge erred in:

     a) allowing plaintiff to recover for the costs attributable to his custodial care and maintenance at the Woods Schools;

     b) allowing evidence of plaintiff's medical expenses recoverable under the No-Fault Act into the trial record, albeit with cautionary instructions; and

     c) in awarding plaintiff damages for delay under Pennsylvania Rules of Civil Procedure 238; and

5) The trial judge should have recused himself because of:

     a) claimed hostility toward SEPTA's trial counsel, Stuart Schwartz;

     b) plaintiff's trial counsel, Robert C. Daniels', prior representation of all the Commonwealth's justices and judges, including the trial judge, in a class action seeking increased compensation for the judiciary;

     c) the trial judge's son-in-law's affiliation as an associate lawyer with plaintiff's trial counsel's law firm; and

     d) his step-nephew's (i) affiliation as a lawyer with the same law firm, (ii) alleged concurrent representation of the trial judge in another unrelated case, and (iii) prior relationship as the trial judge's law clerk.

Superior Court concluded, after a discussion of the facts on the issue of liability, that there was sufficient evidence in the record from which a jury was entitled to conclude that SEPTA and its driver were negligent. With

[ 507 Pa. Page 213]

    this conclusion we have no quarrel. Since the facts and all reasonable inferences arising therefrom must be viewed in the light most favorable to the verdict winner, it is reasonable to conclude that the jury found that the bus driver did, in fact, sound his horn and waved Gerald across the street, in front of the bus and into the path of the oncoming vehicle (approaching from the rear of the bus), and that such action on the part of the bus driver was negligently performed and constituted a substantial factor in causing Gerald's injuries. See Leary v. Lawrence Sales Corp., 442 Pa. 389, 275 A.2d 32 (1971).

With regard to the recusal issues, Superior Court found that SEPTA's contention as to the trial judge's personal bias and hostility toward its trial counsel had been waived and was, in any event, without merit. We agree. No allegation of bias or animosity of the judge to SEPTA was ever alleged. Any such animosity, standing alone, between a lawyer and judge is irrelevant.

Superior Court also determined that Daniels' representation of all of the Commonwealth's justices and judges in a class action seeking increased judicial compensation for all, (Kremer et al, v. Barbieri, 48 Pa. Commonwealth Ct. 557, 411 A.2d 558, aff'd. 490 Pa. 444, 417 A.2d 121 (1980)) did not require the trial judge to recuse himself because of the "rule of necessity." To agree with SEPTA would force Daniels to forego trial practice in Pennsylvania. Superior Court itself would have had to recuse in this case. Only those judges and justices coming to the bench after the Kremer decision would not have to recuse themselves. No lawyer should be compelled to suffer such a disaster because of his pro bono representation of all the jurists of Pennsylvania.

Superior Court also determined that the trial court erred in ruling, as a matter of law, that the Woods Schools (an institution Gerald will be confined to for the remainder of his life) was providing custodial services, and that those

[ 507 Pa. Page 214]

    services could be recovered as damages instead of from the no-fault carrier.

Setting aside the rest of the issues, Superior Court then, strangely, remanded the case for an evidentiary hearing before a judge, other than those of the trial court en banc, to determine whether the trial judge should have recused himself because of either or both of the remaining two complaints regarding the trial judge's son-in-law and stepnephew.

We granted Gerald's Petition for Allowance of Appeal in order to consider, together with all the other issues, an apparent usurpation by an intermediate appellate court of administrative power reserved exclusively to us by the Constitution of our Commonwealth. Following oral argument before us, we vacated the Order of Superior Court remanding the cause for an evidentiary hearing, and remanded this matter to Superior Court for consideration and disposition of the remaining issues not decided by that court. Superior Court complied and filed its Per Curiam Opinion on November 23, 1984, disposing of the remaining issues by concluding that the trial court did not err in its conducting of the voir dire proceeding or charge to the jury.

Gerald and his parents first argue that the Superior Court erred in remanding the case back to a judge other than Judge Kremer for the resolution of issues raised for the first time in Appellee's post-trial motions and brief before Superior Court. We agree.

We have often stated that as appellate tribunals, we are bound to resolve only those issues properly preserved for our review. In order to preserve an issue for appeal, a litigant must make a timely, specific objection at trial and must raise the issue on post-trial motions. Issues not preserved for appellate review cannot be considered by an appellate court*fn4 even though the alleged error involves a

[ 507 Pa. Page 215]

    basic or fundamental error. Additionally, in resolving those issues properly before us, we may only look to the record prepared in the trial court. Alleging facts in a brief which a trial court has not passed on has been specifically condemned, In re: Legislative Route 1018, 422 Pa. 594, 222 A.2d 906 (1966); McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51 (1972); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974), and we continue to view such practice as improper.

Our review of the record reveals that during a pre-trial conference on June 23, 1982, counsel for SEPTA orally requested the trial judge to recuse himself because of an alleged personal bias against said counsel. SEPTA's counsel, Stuart A. Schwartz, Esquire, had represented SEPTA in June of 1981 in Farnese v. SEPTA and City of Philadelphia, C.P. April Term 1976, No. 2249. A jury in that case returned a verdict against SEPTA for 3.65 million dollars. The personal bias SEPTA's counsel alluded to allegedly occurred after verdict. During the oral argument of SEPTA's post-trial motions before the court en banc in the Farnese case, the trial judge and Mr. Schwartz exchanged words concerning Mr. Schwartz's sincerity, truthfulness and integrity while representing SEPTA. When Mr. Schwartz argued that the verdict was excessive, Judge Kremer recalled that after the verdict, Mr. Schwartz remarked to him that the verdict had not been excessive. Mr. Schwartz disagreed with Judge Kremer's recollection denying he ever made such a statement and an exchange of insults ensued wherein each gentleman called the other untruthful.

Mr. Schwartz reminded Judge Kremer of this conversation on June 28, 1982, indicating that perhaps the trial court had displayed animosity against him in the past and orally asked the trial judge to recuse himself.

While denying any such hostility, the trial judge, displaying appropriate restraint, invited Mr. Schwartz to file a

[ 507 Pa. Page 216]

    written motion for recusal within five days and a written order to that effect would follow. Mr. Schwartz delayed filing his recusal motion some eight months, until the very eve of trial, February 8, 1983, during jury selection and just after an exhaustive settlement negotiation had ended in failure. When asked why SEPTA was making its motion on the eve of trial, instead of back in June of 1982, pursuant to the Court's order, Mr. Schwartz responded: "The permission which was granted in the order, I believe, expired before the order was received by us, Your Honor" (p. 24, February 8, 1983). Additionally, Mr. Schwartz argued that ...

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