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Becker v. M.S. Reilly, Inc.

Superior Court of Pennsylvania

August 13, 2015

HEYWOOD BECKER, Appellant
v.
M.S. REILLY, INC., Appellee

Argued March 17, 2015.

Appeal from the Judgment of the Court of Common Pleas, Northampton County, Civil Division, No: C-48-CV-2011-3124. Before GIORDANO, J.

Ronald L. Clever, Allentown, for Appellant.

Carol A. VanderWoude, Philadelphia, for Appellee.

BEFORE: BOWES, DONOHUE, and STABILE, JJ.

OPINION

Page 777

STABILE, J.:

Appellant, Heywood Becker, appeals from the February 7, 2014 judgment in favor of Appellee, M.S. Reilly, Inc.[1] We affirm.

Page 778

Appellant commenced this negligence action on April 6, 2011. Appellant alleged that a faulty drainage swale on Appellee's property caused water damage to Appellant's property. After a series of preliminary objections and amended complaints, Appellee filed an answer and new matter to Appellants' third amended complaint on January 26, 2012. Appellee filed a motion for judgment on the pleadings on November 14, 2012, which the trial court denied on January 24, 2013. The trial court listed the matter for trial on Monday, December 16, 2013.

On Thursday, December 12, 2013, four days before trial was scheduled to commence, Appellant filed a praecipe to discontinue the case pursuant to Pa.R.C.P. No. 229. On the same day, Appellee filed a motion to strike off the discontinuance and informed Appellant that it would present the motion on December 16, 2003. Appellant did not appear for trial on December 16. In Appellant's absence, the trial court granted Appellee's motion to strike off the discontinuance and proceeded with trial on the merits. At the conclusion of the trial, at which Appellee presented expert testimony and other evidence, the trial court found in favor of the Appellee.

Appellant filed a timely post-trial motion on December 24, 2013 requesting reconsideration of the order striking off his discontinuance. The trial court held argument on January 8, 2014 and denied Appellant's recusal motion at the hearing. N.T. Hearing, 1/8/14, at 15. On January 31, 2014, the trial court denied Appellant's remaining post-trial motions. Specifically, the court denied reconsideration of its order striking off Appellant's discontinuance. Appellant filed a notice of appeal on February 28, 2014.

On appeal, Appellant challenges the trial court's denial of his recusal motion and the order striking off his discontinuance. We will address these issues in turn. We review the trial court's denial of the recusal motion for abuse of discretion. Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757, 763 (Pa. 1989). The trial court must conduct a two tiered analysis:

First, whether the Justice would have a personal bias or interest which would preclude an impartial review. This is a personal and unreviewable decision that only the jurist can make. Second, whether his participation in the matter would give the appearance of impropriety. [T]o perform its ...

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