from the Order Entered April 12, 2019 In the Court of Common
Pleas of Philadelphia County Criminal Division at No(s):
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
interlocutory appeal, the Commonwealth contends that the
trial court abused its discretion by denying its "Motion
to Disqualify Judge Scott DiClaudio." The Commonwealth
alleges that Judge DiClaudio's relationship to his
domestic partner ("DP"), a former employee of the
Office of the District Attorney of Philadelphia, presents an
appearance of impropriety due to DP's filing of a charge
of racial discrimination against the district attorney's
office following her dismissal. After careful review, we
facts concerning the criminal case against Sita Dip,
Appellee, are not germane to the disposition of this appeal.
Indeed, "Appellee takes no position in this
matter." Appellee's Brief at 5. Instead, the unique
facts and allegations before us concern only the dispute that
has arisen between the district attorney's office and
2015, Judge DiClaudio was elected to the First Judicial
District of Pennsylvania, otherwise known as the Court of
Common Pleas of Philadelphia County. From January of 2016
until the present day, he has served in the Criminal Division
of the First Judicial District in various capacities. Trial
Court Opinion (TCO), 8/12/19, at 2. "At the time he
began his term, he had already been in a long[-]term
relationship with [DP], who had been employed as an Assistant
District Attorney in Philadelphia County since 2013."
Larry Krasner began his term as the Philadelphia District
Attorney in January [of] 2018. [DP] worked … for
approximately fourteen months under [District Attorney]
Krasner." Id. DP never appeared before Judge
DiClaudio before or during Mr. Krasner's tenure as
District Attorney, and prior to the instant matter, no party
had ever sought Judge DiClaudio's recusal due to his
relationship with DP. Id. at 6.
February 9, 2019, DP left the district attorney's office.
Id. at 2. Soon thereafter, she "filed a
confidential [charge] with the Equal Employment Opportunity
Commission …, alleging that she had been forced to
leave on the basis of racial discrimination."
Id. Two months later, on April 11, 2019, the
district attorney filed the Recusal Motion in the
above-captioned case. Until then, "[t]he [charge of
racial discrimination] had remained confidential and unknown
to the public at large[.]" Id. at 2.
DiClaudio addressed the issues raised in the Recusal Motion
during hearings held on April 9, 10, and 12 of
2019. At the April 9th hearing, the
Commonwealth initially "explained that its [recusal]
motion[s] w[ere] based on the appearance of partiality caused
by [DP]'s [charge of racial discrimination], and not any
specific partial or biased act." Commonwealth's
Brief at 7. Nevertheless, in support of the recusal
motions, the Commonwealth alleged that Judge DiClaudio had
engaged in several improper ex parte communications
with employees of the district attorney's office before
and after DP's allegation. See N.T., 4/9/19, at
6-7. The Commonwealth asked Judge DiClaudio to order an
evidentiary hearing before a different judge to address the
factual allegations it had made concerning those
communications. Id. at 7, 9, 12, 14-15. "By the
end of the hearing, Judge DiClaudio had acknowledged the
existence of [DP]'s race discrimination [charge] against
the [district attorney's office], and appeared to admit
the existence of his conversations with members of [the
district attorney's office] about her employment months
earlier, as well as his ex parte communications
about the [recusal] motions the day before. He continued,
however, to challenge the content of [those]
conversations." Commonwealth's Brief at 7. Judge
DiClaudio held the recusal motion(s) under advisement at the
end of the April 9, 2019 hearing.
the Commonwealth filed recusal motions in all of its cases
before Judge DiClaudio. On April 10, 2019, the Commonwealth
continued to argue for Judge DiClaudio's recusal in the
cases scheduled for that day. During those arguments, Judge
DiClaudio noted several unrelated situations where he
believed the district attorney's office had demonstrated
an appearance of impropriety. "These examples were
somehow meant to show why Judge DiClaudio should not"
recuse himself from cases involving the district attorney.
Id. at 9. "Ultimately, Judge DiClaudio denied
the Commonwealth's" recusal motions. Id.
"The Commonwealth also filed [recusal] motions [before]
Judge DiClaudio in four cases scheduled before him on April
12, 2019. [Appellee]'s case was one of
them…." Id. "Judge DiClaudio asked
[Appellee] whether he thought he could be fair, and
[Appellee] responded that he did." Id. at 10.
Ultimately, Judge DiClaudio denied the Recusal Motion in
Appellee's case. Thereafter,
[t]he Commonwealth immediately asked Judge DiClaudio to
certify his ruling for interlocutory appeal, and presented
him with a motion. When Judge DiClaudio refused even to
consider it, the Commonwealth promptly filed a notice of
appeal and asked the court not to proceed in the case. Judge
DiClaudio denied the Commonwealth's request and prepared
to proceed to trial.
But the case could not be tried that day because the police
witness was unavailable in the afternoon, and it had to be
continued until the next week. Despite the Commonwealth's
appeal, Judge DiClaudio continued to list the case for trial.
The Commonwealth filed its motion to certify the court's
ruling for interlocutory appeal that same day, and the court
denied it the following week. The Commonwealth also moved to
stay the trial, but the court took no action on that motion.
The Commonwealth was finally able to stay [Appellee]'s
trial by filing an emergency motion with this Court, which
this Court granted.
The trial court issued a Pa.R.A.P. 1925(b) order, and the
Commonwealth filed a statement of matters complained of on
Id. at 10-11.
trial court issued its Rule 1925(a) opinion on August 12,
2019. The Commonwealth now presents the following questions
for our review:
I. After she was not promoted to a supervisory position and
her employment with the Philadelphia District Attorney's
Office ended, the trial court's domestic partner filed a
complaint against the [o]ffice, which alleged that [it]
discriminated against her because she is white. The [district
attorney's office] represents the Commonwealth of
Pennsylvania in this case. Did the trial court abuse its
discretion and err as a matter of law by refusing to
disqualify itself where the Commonwealth is a party in this
II. To the extent the trial court disputes the
Commonwealth's factual claims, and those facts are
necessary to the resolution of this case, did the trial court
abuse its discretion by refusing to refer issues of disputed
fact to another judge when the court had personal knowledge
of those facts?
Brief at 4.
standards for recusal are well established. It is the burden
of the party requesting recusal to produce evidence
establishing bias, prejudice or unfairness which raises a
substantial doubt as to the jurist's ability to preside
impartially." Commonwealth v. Abu-Jamal, 720
A.2d 79, 89 (Pa. 1998).
In considering a recusal request, the jurist must first make
a conscientious determination of his or her ability to assess
the case in an impartial manner, free of personal bias or
interest in the outcome. The jurist must then consider
whether his or her continued involvement in the case creates
an appearance of impropriety and/or would tend to undermine
public confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make. Where a
jurist rules that he or she can hear and dispose of a case
fairly and without prejudice, that decision will not be
overruled on appeal but for an abuse of discretion. In
reviewing a denial of a disqualification motion, we recognize
that our judges are honorable, fair and competent.
Id. (internal citations omitted).
Code of Judicial Conduct dictates that a "judge shall
uphold and apply the law, and shall perform all duties of
judicial office fairly and impartially." Pa.
Code of Judicial Conduct, Canon 2.2 (emphasis added).
'Impartiality' is a concept more often invoked in
principle than defined with particularity. John Stuart Mill
described the term "as an obligation of justice"
that requires the state of "being exclusively influenced
by the considerations which it is supposed ought to influence
the particular case in hand; and resisting the solicitation
of any motives which prompt to conduct different from what
those considerations would dictate." John Stuart Mill,
UTILITARIANISM 45 (Batoche Books 2011) (1863). Thus,
impartiality is not the absence of influences external to the
matter at hand; judges exist in the real world, not behind a
veil of ideals. Instead, as Mill suggests, a jurist achieves
impartiality by successfully resisting the unavoidable
presence of external influences that might affect him or her.
As our Judicial Code dictates, "[a] judge shall not
permit family, social, political, financial, or
other interests or relationships to influence the judge's
judicial conduct or judgment." Pa. Code of Judicial
Conduct, Cannon 2.4(A) (emphasis added). Thus, we assume that
a jurist will possess interests and relationships that might
conceivably influence their judgment but, in the normal
course of events, the mere presence of an interest or
relationship that could theoretically affect a judicial
decision does not create a presumption of partiality.
"[r]ecusal is required wherever there is substantial
doubt as to the jurist's ability to preside
impartially." In the Interest of McFall, 617
A.2d 707, 713 (Pa. 1992) (emphasis added). "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."
Id. Thus, "[i]n order for the integrity of the
judiciary to be compromised, we have held that a judge's
behavior is not required to rise to a level of actual
prejudice, but the appearance of impropriety is
sufficient." Id. at 712. In this regard, the
appearance of impropriety sufficient to disqualify a judge
exists when "a significant minority of the lay community
could reasonably question the court's impartiality."
Commonwealth v. Bryant, 476 A.2d 422, 426 (Pa.
Super. 1984) (quoting Commonwealth v. Darush, 459
A.2d 727, 732 (Pa. 1983)).
Judge DiClaudio expressed his confidence in his ability to
impartially judge cases involving the district attorney's
office. TCO at 3 ("[DP] did not communicate anything to
this [c]ourt about the substance of her claim and this court
would refuse to hear any such information, precisely because
it takes its impartiality so seriously."). He also ruled
that his relationship to DP does not create an appearance of
In this case, the mere fact [that DP] filed [the charge of
racial discrimination] would not create a perception in a
reasonable person's mind that this [c]ourt violated the
Rules of Judicial Conduct or engaged in conduct that reflects
adversely on the Judge's honesty, impartiality,
temperament[, ] or fitness to serve as Judge. This [c]ourt
has never made any comments regarding the potential success
or failure of [DP]'s claim and a reasonable person
observing this [c]ourt would see that all litigants are
treated fairly and respectfully. The [d]istrict
[a]ttorney's [o]ffice simply has no basis to conclude
that the reasonable person would have any view other than
seeing this [c]ourt for what it is, an impartial and fair
Id. at 4.
ease of disposition, we first address the Commonwealth's
second claim. The Commonwealth argues that we should consider
the Recusal Motion filed in response to DP's charge of
racial discrimination in light of further allegations it
makes regarding Judge DiClaudio's conduct. However, in
the three hearings held by Judge DiClaudio concerning the
Commonwealth's recusal motions in this and other cases,
the Commonwealth refused to present any witnesses before the
court concerning the alleged ex parte communications
the judge had with members of the district attorney's
office, despite Judge DiClaudio's repeated attempts to
hear such evidence. See N.T., 4/9/19, at 9; N.T.,
4/10/19, at 6, 10-11; N.T., 4/12/19, at 10. Nevertheless, the
Commonwealth maintains that "[h]ad he held an
evidentiary hearing, Judge DiClaudio would have been required
to evaluate his own credibility against that of any potential
witness. Under such circumstances, a different judge must
conduct the evidentiary hearing." Commonwealth's
Brief at 24.
true that "no man can be a judge in his own case and no
man is permitted to try cases where he has an interest in the
outcome." In Re Murchison, 349 U.S. 133, 136
(1955). However, recusal motions are routinely addressed in
the first instance by the judge whose recusal is sought.
Abu-Jamal, 720 A.2d at 89 ("As a general rule,
a motion for recusal is initially directed to and decided by
the jurist whose impartiality is being challenged.").
Therefore, it cannot be the case that any question of fact
even remotely involving a judge's impartiality requires a
separate hearing before a separate judge. Instead, the
general rule is that a party seeking the recusal of a judge,
at a minimum, must satisfy a burden of production and
persuasion to show that the recusal claim is not frivolous.
This may require the presentation of witnesses or evidence
before the judge whose recusal is sought.
are times when a judge must refer a recusal motion to another
judge. For instance, in Mun. Publications, Inc. v. Ct. of
Com. Pleas of Philadelphia County, 489 A.2d 1286, 1287
(Pa. 1985), the appellees/defendants filed a motion seeking
recusal of the trial court judge, the Honorable Bernard
Snyder, based on the allegation that Judge Snyder was biased
in favor of the appellant's/plaintiff's counsel.
Judge Snyder initially referred the recusal matter to another
judge, but then vacated that order and scheduled a recusal
hearing before himself. Id. Judge Snyder held
recusal hearings over the course ...