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MUNICIPAL PUBLICATIONS v. COURT COMMON PLEAS PHILADELPHIA COUNTY. APPEAL JAMES REGINALD EDGEHILL (03/27/85)

decided: March 27, 1985.

MUNICIPAL PUBLICATIONS, INC., D. HERBERT LIPSON AND ALAN HALPERN
v.
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY. APPEAL OF JAMES REGINALD EDGEHILL



No. 124 E.D. Appeal Docket 1984, Appeal from the Order of the Superior Court dated November 30, 1983, entered at No. 46 Misc. Docket 14, Pa. Super. , Nix, C.j., and Flaherty, Hutchinson, Zappala and Papadakos, JJ. Larsen and McDermott, JJ., did not participate in the consideration or decision of this case. Hutchinson, J., joins the majority opinion and files a concurring opinion. Zappala, J., joins the majority opinion and files a concurring opinion.

Author: Nix

[ 507 Pa. Page 196]

OPINION

We have assumed jurisdiction of this matter to decide whether a judge should be disqualified from presiding over a hearing on a recusal motion raising factual allegations as to his impartiality which, if proven, would require his recusal, where the judge has personal knowledge of disputed facts and permits himself to be a crucial witness in the proceedings. We have concluded that, in such circumstances, a judge must recuse himself and the issue of impartiality must be litigated before and decided by another judge.

I.

The instant appeal arises out of a libel action instituted by appellant James Reginald Edgehill against Municipal Publications, Inc., D. Herbert Lipson and Alan Halpern, appellees, in 1972. The case was tried before the Honorable Bernard Snyder of the Philadelphia Court of Common Pleas, sitting without a jury, from April to October, 1982. On March 14, 1983, appellees filed a motion for Judge Snyder's recusal accompanied by an affidavit from appellee Lipson alleging the judge's bias in favor of counsel for Mr. Edgehill. That motion has never been ruled upon.

Judge Snyder initially referred the recusal motion to the Motions Court but, on May 4, 1983, vacated that order and scheduled a hearing before himself. On May 6, 1983, Judge Snyder entered a verdict of Seven Million Dollars ($7,000,000) in favor of Mr. Edgehill. The hearings on the recusal motion extended from May 23 to July 13, 1983. Judge

[ 507 Pa. Page 197]

Snyder gave testimony during the proceedings over which he presided.

On October 24, 1983, appellees filed a petition for writ of prohibition in the Superior Court. That court granted the petition on November 30, 1983, barring Judge Snyder from proceeding on the recusal motion and directing the President Judge of the Court of Common Pleas to request this Court to appoint a judge from another county to decide the motion. Municipal Publications, Inc. v. Snyder, 322 Pa. Super. 464, 469 A.2d 1084 (1983). By order dated December 13, 1983, then-Chief Justice Samuel J. Roberts approved the appointment of the Honorable Thomas D. Gladden of the Court of Common Pleas of Washington County to dispose of all proceedings in the libel action. Mr. Edgehill, who opposed the issuance of a writ of prohibition in the Superior Court proceedings,*fn1 filed a petition for allowance of appeal and/or the assumption of plenary jurisdiction in this Court on March 5, 1984. That petition was granted on August 22, 1984. While our original order granting review did not so specify, in view of the extraordinary nature of the instant case, we hereby assume plenary jurisdiction.

II.

In reviewing the action of the Superior Court we must consider the threshold question of whether that court had jurisdiction to entertain a petition for writ of prohibition in light of the procedural posture of the instant matter. While the Superior Court has been vested with broad appellate jurisdiction, see 42 Pa.C.S. § 742, its original jurisdiction is extremely limited. Section 741 of the Judicial Code provides:

§ 741. Original jurisdiction

[ 507 Pa. Page ...


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