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Malinowski v. Nanticoke Micro Technologies


June 24, 2010


Per curiam.


AND NOW, this 24th day of June, 2010, this Court having assumed plenary jurisdiction over this case by order dated August 5, 2009; and having specially appointed the Honorable Chester Muroski, then-President Judge (and presently Senior Judge) of the Court of Common Pleas of Luzerne County, to preside over a remand of this matter; and the Court having received and considered the Report and Recommendations of Senior Judge Muroski, as well as the Exceptions of Nanticoke Micro Technologies, Inc. ("Nanticoke") and Tektronix, Inc. ("Tektronix") and the Exceptions of Xerox Corporation ("Xerox"),*fn1 and Petitioner's Replies to the Exceptions, it is hereby ordered as follows:

(1) Nanticoke, Tektronix and Xerox request that we decline to adopt Senior Judge Muroski's recommendation that we vacate the orders entered in this matter by former Judge Mark A. Ciavarella on December 7, 2005 and May 30, 2006. Nanticoke and Tektronix argue that any alleged judicial corruption would have involved only First National Community Bank ("First National"), and did not in any way involve either Nanticoke or Tektronix. Nanticoke, Tektronix, and Xerox also all argue that Senior Judge Muroski employed the incorrect legal standard in his review of the matter. Nanticoke and Tektronix argue that the burden is on Petitioner to show that "the greater harm will not result from the exercise of the court[']s equity powers than from a refraining of the exercise of those powers . . . ." Nanticoke and Tektronix's Exceptions at 2 (citing Dexter v. Bebenek, 327 A.2d 38 (Pa. 1974)). They imply that, in the balance, it would be fairer to deny Petitioner relief. Noting that the covenant that Petitioner is attempting to enforce was recorded 83 years ago, they suggest that "the purpose of that covenant has long since passed." Exceptions at 2. They also observe that Nanticoke expended a great deal of money rehabilitating the property after it was acquired. Finally, they point out that the property is presently being used for banking purposes "in conformity with the alleged covenant." Id.

Xerox also argues that Senior Judge Muroski employed the improper standard of review. It claims that a new trial should not be awarded "for reasons such as prejudice, bias, capricious disbelief, or prejudgment . . . unless errors complained of are plainly prejudicial to one of the parties." Id. (citing Fisher v. Commercial Nat'l Bank, 184 A. 57 (Pa. 1936)). Xerox asserts that Senior Judge Muroski should have first analyzed whether Ciavarella made any legal errors; if it were determined that Ciavarella had not made any errors, then a new trial should not be awarded.

We recently observed in Joseph v. Scranton Times L.P., 987 A.2d 633 (Pa. 2009), a separate matter arising from the Luzerne County Common Pleas Court, that:

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, 617 A.2d 707, 712-13 (Pa. 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 114. 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).

Joseph, 987 A.2d at 634-35.

Senior Judge Muroski properly determined that the standard of review to be applied was whether there was an appearance of judicial impropriety in this matter. In a case such as the one sub judice, we reject the argument that actual prejudice need be established for Petitioner to obtain relief. See Joseph, supra. Additionally, Joseph did not require that a petitioner show that he is more harmed than the respondents in order to obtain relief on an allegation of judicial impropriety; nor do we find that such a requirement would be in concert with Joseph.

Senior Judge Muroski found that an appearance of judicial impropriety exists in this matter. He observed that Ciavarella admitted in his January 23, 2009 guilty plea, which was subsequently withdrawn,*fn2 that he had engaged in illegal conduct in connection with his duties as a jurist. Ciavarella also admitted in testimony proffered at hearings regarding Joseph that he was a corrupt jurist at the time he entered the orders in this matter. Finally, former President Judge Michael T. Conahan ("Conahan"), Ciavarella's co-conspirator, was a member of the Board of First National. Additionally, Petitioner asserted that First National provided financing to Pinnacle Group of Jupiter, LLC, the entity owned by the wives of Ciavarella and Conahan, for a land acquisition; the financing was in the amount of $848,000.00, where the acquisition cost was only $785,000.00. Senior Judge Muroski did not determine that Petitioner was actually prejudiced by Ciavarella's orders.

We conclude that Senior Judge Muroski's finding that there was an appearance of judicial impropriety is amply supported, and that fact requires corrective supervisory action. Accordingly, we accept Senior Judge Muroski's Report and Recommendations, and vacate Ciavarella's orders dated December 7, 2005 and May 30, 2006. This relief is awarded in the interest of justice, to remedy judicial impropriety, and is premised upon this Court's supervisory power over inferior tribunals. Nanticoke's, Tektonix's, and Xerox's request that this Court decline to adopt Senior Judge Muroski's Report and Recommendations is hereby denied.

(2) Xerox argues that as the questions before Ciavarella in this matter were questions of law, and thus were subject to plenary review by an appellate court, review by the Superior Court, an untainted tribunal, on direct appeal cured any possible corruption. We cannot rely on the initial appellate review as a cure to this serious appearance of judicial impropriety. Ciavarella should have recused in this matter. The Luzerne County judicial scandal had not been made public when that appellate proceeding occurred, and the question of judicial impropriety was not considered. Furthermore, as actual prejudice is not a requirement for the granting of relief, a failure to show actual prejudice does not serve as a justification to deny relief. Xerox's request that we find that the Superior Court's review of unrelated issues in Malinowski v. Nanticoke Micro Technologies, Inc., 1129 MDA 2006, cured any appearance of judicial impropriety is denied.

(3) Nanticoke and Tektronix assert that Petitioner should not be granted relief as any alleged judicial corruption would have involved only First National, and did not involve them. While there is no evidence implying that Nanticoke, Tektronix, and Xerox had an improper relationship with Ciavarella, the fact remains that he presided in the trial of the matter. There is, thus, an appearance of judicial impropriety that this Court cannot have confidence in the disposition of this case. Nanticoke's and Tektronix's request that new proceedings not be granted as to them is denied.

The matter is remanded to the Court of Common Pleas of Luzerne County for disposition of First National's Preliminary Objections, the motions for judgment on the pleadings filed on behalf of Nanticoke, Tektronix, and Xerox, and for any further proceedings.

Jurisdiction relinquished.

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