2303 Bainbridge, LLC. v. Steel River Bldg Systems ( 2020 )

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2020 PA Super 2152303 BAINBRIDGE, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STEEL RIVER BUILDING SYSTEMS, : No. 2520 EDA 2019
INC. :
Appeal from the Order Entered July 22, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2018-07328,
No. 2018-20172, No. 2019-14058
BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*
OPINION BY LAZARUS, J.: FILED SEPTEMBER 3, 2020
2303 Bainbridge, LLC (Bainbridge), appeals from the order, entered in
the Court of Common Pleas of Montgomery County, (1) denying its motion to
recuse; (2) sustaining Appellee Steel River Building Systems, Inc.’s (Steel
River) preliminary objections asserting improper venue; (3) consolidating
three related cases;1 and (4) transferring the consolidated cases to
Philadelphia County. After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 On October 23, 2019, this Court issued a rule wherein Bainbridge was
directed to show cause why this appeal should not be quashed pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). In Walker, the
Pennsylvania Supreme Court interpreted Pa.R.A.P. 341 and found that “in
future cases Rule 341(a) will, in accordance with its Official Note, require that
when a single order resolves issues arising on more than one lower court
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docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. at 977 (footnote omitted).
Rule 341 states that “an appeal may be taken up as of right from any final
order of a government unit or trial court.” Pa.R.A.P. 341(a). The Official Note
clarifies that:
Where [] one or more orders resolves issues arising on more than
one docket or relating to more than one judgment, separate
notices of appeal must be filed. Commonwealth v. C.M.K., 932
A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by
single notice of appeal from order on remand for consideration
under Pa.R.Crim.P. 607 of two persons’ judgments of sentence).
Id., Official Note.
In Walker, our Supreme Court acknowledged that the Official Note to Rule
341 was “contrary to decades of case law.” Walker, supra at 977. Moreover,
the Court stated that the Note’s citation to C.M.K., supra, “was itself unclear,
as that case was arguably not inconsistent with the three-part test in General
Electric [Credit Corp. v. Aetna Cas. and Sur. Co., 263 A.2d 448 (Pa.
1970).]”
Nevertheless, in Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super.
2019), this Court read the Walker decision to require quashal if a notice of
appeal contains more than one docket number because “a notice of appeal
may contain only one docket number.” Id. at 1146 (emphasis added).
Most recently, in Commonwealth v. Johnson, 2046 EDA 2019 (Pa. Super.
filed July 9, 2020) (en banc), this Court expressly overturned the panel
decision in Creese to the extent it interpreted Walker to require quashal
when an appellant files a single notice of appeal listing multiple docket
numbers because, “by stating that each notice of appeal may contain only one
number, Creese imposed upon appellants an additional requirement found in
neither Walker nor Rule 341.” Johnson, supra at *12.
Here, Bainbridge included all three docket numbers in its single notice of
appeal; however, we decline to quash. In the trial court dockets, the final
entries in the two consolidated dockets state, “Disposed by Consolidation”
and, in the status entry they state “6-Closed,” whereas the lead consolidated
docket from which this appeal is taken states “2-Open.” Additionally, we note
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This appeal arises from a commercial arbitration in connection with a
construction dispute between the parties. Bainbridge filed three petitions,
each docketed separately, seeking a declaratory judgment that several of the
arbitrator’s various awards could not be confirmed by a court, or in the
alternative, that the awards should be set aside. As noted above, the court
subsequently consolidated the related cases.
On July 10, 2015, the parties entered into a contract wherein Steel River
agreed to manufacture, deliver, and set on to the steel frame of a building,
twenty-three “modules” that would form individual residential units within a
condominium building in Philadelphia. On January 6, 2017, Bainbridge,
believing that Steel River was in breach, terminated the contract.2
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that the concerns present in Walker are not present here: there are not
multiple defendants, the facts and issues apply only to one appellant, and the
outcome will affect only one appellant. See Commonwealth v. Larkin, 2761
EDA 2018 (Pa. Super. filed July 9, 2020) (en banc). Thus, we find that Walker
does not require quashal, and we will proceed to review this appeal on its
merits. See Johnson, supra; see also Larkin, supra.
2By way of additional factual background, Bainbridge believed that Steel River
was in breach of the terms of the contract for the following reasons:
[Bainbridge] only terminated the [c]ontract with cause to protect
itself and the [p]roject from further harm after and as a result of
each of the following:
 Both before the modules were delivered to the [p]roject site
and during the course of the setting thereof, [Bainbridge]
placed Steel River on notice of serious, material defects in the
condition of the modules . . . and the manner in which they
were set. [] Substantial and repeated damage to the [p]roject
occurred . . . as a result of Steel River’s failure to properly
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install a . . . weatherproofing [system, which] . . . permitted
rain water to infiltrate the building. This problem was
exacerbated when Steel River employed unqualified personnel
to try to repair the roofing system in a manner contrary to the
manufacturer’s recommendations[,] using a blow torch to heat
seams[.]
 During the course of the setting of the modules . . .
[Bainbridge’s] general contractor and Steel River conducted a
walk-through of the [p]roject. During this walk-through[,] it
was acknowledged and agreed by Steel River that a massive
amount of work that remained incomplete on the [p]roject was
the contractual responsibility of Steel River. [Bainbridge] and
its general contractor [] reasonably estimated, however, that
the incomplete work would cost exponentially more than the
sums remaining due to Steel River[.]
 [Bainbridge] learned that Steel River had failed to pay at least
one of its subcontractors, a temporary staffing firm that
supplied the majority of Steel River’s labor force, over
$250,000 despite [Bainbridge] having already paid Steel River
specifically on account of the open invoices due to that
subcontractor[,] placing the [p]roject at risk of a large
mechanic’s lien claim. [Bainbridge] was particularly concerned
about this issue because [Bainbridge] had recently learned that
(contrary to pre-[c]ontract discussions), Steel River
maintained only a skeleton labor force, and relied upon
temporary staffing firms to supply the labor that would be
needed to complete its massive remaining scope of work. The
staffing firm was threatening to walk off of the job, which would
have foreclosed Steel River’s ability to complete the [p]roject.
[Subsequently, Steel River] claimed that pilot houses and
clerestories that had always been within [Steel River’s] scope of
work were suddenly not, and proposed an approximately
$340,000 change order to complete this aspect of its existing
scope of work on the [p]roject, which amount was [four to five]
times greater than what [Bainbridge’s] general contractor advised
was the reasonable cost thereof[.] Thus, [Bainbridge], as was its
contractual right, rejected the change order.
Appellant’s Brief, at 10-12.
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Following termination, the parties unsuccessfully attempted to mediate
the dispute. Bainbridge then initiated arbitration by filing a complaint. Steel
River filed an answer and counterclaim. The arbitration took place over the
course of multiple hearings, all of which occurred in Philadelphia at the offices
of Duane Morris LLP. Prior to the conclusion of the arbitration, on Steel River’s
motion, the arbitrator entered a “Reasoned Interim Award” in favor of Steel
River. Steel River then filed a petition in the Court of Common Pleas of
Philadelphia County seeking a court-ordered confirmation of the award. The
Philadelphia County court denied Steel River’s petition to confirm, without
providing a reason for the denial.3 See Order, 12/28/17.
Steel River subsequently filed a motion before the arbitrator seeking a
modification of the Reasoned Interim Award. The arbitrator granted the
motion and issued a “Modified Interim Arbitration Award” on March 15, 2018,
which stated that the award “shall be enforceable as a final award,” that the
arbitrator no longer “retain[ed] the power” to enforce the award, and that the
order disposed of all issues pertaining to Steel River’s request for interim
relief. See Modified Award Granting Respondent’s Motion for Interim
Measures, 3/15/18, at 6. Bainbridge, in seeking to preempt Steel River from
petitioning the court to confirm the Modified Interim Arbitration Award, filed
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3 Although the court did not provide a reason for its denial, the parties agree
that it was because “the Reasoned Interim Award was expressly subject to
modification, [therefore] it was not a final award eligible for judicial
confirmation. See Fastuca v. L.W. Molinar & Assocs., 10 A.3d 1230 (Pa.
2011).” Trial Court Opinion, 10/30/19, at 2-3.
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its own petition in the Court of Common Pleas of Montgomery County, seeking
a declaratory judgment that the award was not confirmable. On Bainbridge’s
motion, the court administrator for the Court of Common Pleas of Montgomery
County issued a rule directing Steel River to “show cause why the moving
party is not entitled to the relief requested by filing an answer in the form of
a written response . . . on or before [May 29, 2018.]” See Rule to Show
Cause, 4/25/18. On May 29, 2018, at 5:55 p.m., Steel River filed its answer
and, at 6:10 p.m., filed its preliminary objections asserting improper venue
based upon the Pennsylvania Arbitration Act’s venue provision. See 42
Pa.C.S.A. § 7319.
Following the conclusion of the arbitration, the arbitrator issued a
“Partial Final Award” on July 13, 2018. Bainbridge filed a second petition in
the Court of Common Pleas of Montgomery County seeking a declaratory
judgment that the Partial Final Award was not a confirmable award, or in the
alternative, seeking to have it set aside. Steel River did not file anything in
response to this declaratory judgment petition. Instead, Steel River petitioned
the Court of Common Pleas of Philadelphia County to confirm the Partial Final
Award. That petition was stayed pending resolution of the petitions in the
Court of Common Pleas of Montgomery County. See Order, 4/15/19.
On April 24, 2019, the arbitrator entered an award titled “Final Award
of Arbitrator as to Attorney’s Fees and Costs,” on Steel River’s fee application,
which resolved all matters before him. On May 24, 2019, Bainbridge filed a
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petition to set aside the award, and shortly thereafter, moved to consolidate
the three cases, as mentioned above.
Bainbridge’s first petition for declaratory relief and its motion to
consolidate were assigned to the Honorable Jeffrey S. Saltz of the Montgomery
County Court of Common Pleas. On May 1, 2019, Judge Saltz wrote to the
parties to disclose a “professional acquaintance” he had with the arbitrator in
the instant case, Richard H. Lowe, Esquire.4 Judge Saltz invited a motion to
recuse from the parties, which Bainbridge filed.
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4 The letter stated:
Dear Counsel:
In this matter, which has been assigned to me, [Bainbridge] seeks
to set aside a “[M]odified [I]nterim Arbitration Award” issued by
Richard H. Lowe, Arbitrator. I assume that this is the same
Richard H. Lowe who is a member of the firm of Duane Morris LLP.
If my assumption is incorrect, please notify me immediately.
I am writing to disclose that I have a professional acquaintance
with Mr. Lowe. I came to know him while we were colleagues for
approximately two years at the firm of Wolf, Block, Schorr and
Solis-Cohen. After Mr. Lowe left Wolf, Block, we were counsel for
different parties in a case (the details of which I do not recall).
We also have had casual conversations during some chance
encounters. We have not seen each other socially.
At first blush, I do not believe that the above facts prevent me
from participating in this matter, but I will consider any objections
to my participation that any party may have. Any such objections
should be submitted in writing to Chambers within ten days of the
day of this letter[.]
Letter from Chambers of the Honorable Jeffrey S. Saltz, 5/1/19.
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On July 15, 2019, the court held oral arguments on the limited issues of
recusal, venue, and consolidation of the three cases. Judge Saltz entered the
above order on July 22, 2019. Bainbridge timely appealed. Bainbridge and
the trial court subsequently complied with Pa.R.A.P. 1925.
On appeal, Bainbridge presents the following issues for our review,
which we have renumbered for ease of disposition:
1. Did the [t]rial [c]ourt err in finding that the Pennsylvania
Arbitration Act was applicable to and was controlling with
respect to the question of venue where the [f]irst [p]etition for
[d]eclaratory [r]elief sought declaratory relief that a non-final,
and thus non-confirmable, arbitration decision was not an
“award” as such term is used in 42 Pa.C.S.A. [§] 7341 as
determined by the Pennsylvania Supreme Court in Fastuca v.
L. W. Molinar & Assocs., [] [10 A.3d 1230] ([Pa.] 2011),
rather than to set [the] same aside, and thus was not actually
a petition under the Pennsylvania Arbitration Act subject to its
venue provision?
2. To the extent this [] Court concludes that the Pennsylvania
Arbitration Act is applicable, did the [t]rial [c]ourt err in
concluding that 42 Pa.C.S.A. [§] 7319(1) is the applicable
venue subsection over 42 Pa.C.S.A. [§] 7319(2)?
3. Did the [t]rial [c]ourt err in considering [Steel River’s]
preliminary objections to [Bainbridge’s] [f]irst [p]etition for
[d]eclaratory [r]elief where [Steel River] first filed an answer
to the petition, and then later filed preliminary objections to
venue, despite having already waived its right to object
challenging venue as being improper by virtue of its answer?
4. Did the [t]rial [c]ourt err in failing to recuse itself from this
matter where the integrity of arbitrator Richard H. Lowe went
to the heart of the matter before the [c]ourt, and implicit bias
in favor of [] Lowe could have subconsciously impacted the
[t]rial [c]ourt’s ruling to transfer venue as a means of avoiding
that issue[?]
Appellant’s Brief, at 5-6.
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Bainbridge first claims that the court erred in determining that section
7319 was the applicable venue statute. Bainbridge reasons that its petition
was a “petition for declaratory relief” rather than “an application to a court”
under section 7319(1). Appellant’s Brief, at 29. Bainbridge’s reading of
section 7319 would hold that it only applies “if the hearing has been held,”
and that because the arbitration proceedings were not yet complete at the
time Bainbridge filed its petition, the hearing had not yet “been held.” See
id. at 32. Therefore, Bainbridge concludes, its petition should be governed by
the general venue provisions of Pa.R.C.P. 1006 and Pa.R.C.P. 2179. Id. In
the alternative, Bainbridge claims that because the hearing had not yet been
held, venue was proper under section 7319(2), rather than section 7319(1),
since “Steel River’s principal place of business was [] in Pottstown,
Montgomery County[.]” Id.
Our standard of review for a trial court’s decision to transfer venue is
well-settled:
A trial court’s decision to transfer venue will not be disturbed
absent an abuse of discretion. An abuse of discretion occurs when
the trial judge overrides or misapplies the law, or exercises
judgment in a manifestly unreasonable manner, or renders a
decision based on partiality, prejudice, bias or ill-will.
Baylson v. Genetics & IVF Inst., 110 A.3d 187 (Pa. Super. 2015) (quoting
Sehl v. Neff, 26 A.3d 1130, 1132 (Pa. Super. 2011)). In cases involving
statutory interpretation, which is a matter of law, our standard of review is de
novo and our scope of review is plenary. Harmon v. Unemployment Comp.
Bd. Of Review, 207 A.3d 292, 298 (Pa. 2019).
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When construing [provisions] utilized by the General
Assembly in a statute, our primary goal is “to ascertain and
effectuate the intention of the General Assembly.” 1
Pa.C.S.[A.] § 1921(a). “Every statute shall be construed, if
possible, to give effect to all its provisions.” Id. However,
“[w]hen the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” Id. § 1921(b). “Words and
phrases shall be construed according to the rules of
grammar and according to their common and approved
usage.” Id. § 1903(a). In other words, if a term is clear
and unambiguous, we are prohibited from assigning a
meaning to that term that differs from its common everyday
usage for the purpose of effectuating the legislature’s
intent. Additionally, we must remain mindful that the
“General Assembly does not intend a result that is absurd,
impossible of execution or unreasonable.” Id. § 1922(1).
Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super.
2014). It is axiomatic that the plain language of a statute is the
best indication of the legislative intent that gave rise to the
statute.
Words and phrases shall be construed according to the rules
of grammar and according to their common and approved
usage; but technical words and phrases and such others as
have acquired a peculiar and appropriate meaning or are
defined in this part, shall be construed according to such
peculiar and appropriate meaning or definition.
1 Pa.C.S.[A.] § 1903(a).
Commonwealth v. Giordano, 121 A.3d 998, 1003-04 (Pa. Super. 2015)
(quoting Commonwealth v. Ali, 112 A.3d 1210, 1229 (Pa. Super. 2015)).
In its Rule 1925(a) opinion, the trial court addressed the issue of venue
as follows:
The Uniform Arbitration Act (“the Act”), 42 Pa.C.S.[A.] §§ 7301-
7320, recognizes both “statutory arbitration” and “common law
arbitration.” “Statutory arbitration” is an arbitration pursuant to
a written agreement that expressly provides for arbitration
pursuant to the Act. 42 Pa.C.S.[A.] § 7302(a). Any other non-
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judicial arbitration is deemed a “common law arbitration.” Id.
Since the contractual arbitration provision in the present case
does not expressly refer to the Act, it is considered a common law
arbitration. Common law arbitrations are governed by 42
Pa.C.S.[A.] §§ 7341[-]42. Section 7341 provides for the limited
grounds on which the award of an arbitrator may be challenged.
Section 7342 provides that certain procedural provisions of the
Act, relating to statutory arbitrations, shall apply as well to
common law arbitrations.2 In particular, section 7342 provides
that “[s]ection 7319 (relating to venue of court proceedings)” shall
apply to common law arbitrations.
2 [In 2018,] the General Assembly enacted Act No. 2018-
55, which added the Revised Statutory Arbitration Act (“the
Revised Act”), 42 Pa.C.S.[A.] §§ 7321.1-.31. The Revised
Act applies only to an arbitration agreement made after the
effective date, July 1, 2019, and it therefore does not apply
to the present arbitration. The same legislation amended
section 7342 to provide that certain procedural sections of
the Revised Act (rather than the original Act) shall apply to
common law arbitrations; however, those amendments do
not apply to “an action or proceeding commenced or right
accrued before the effective date” of the legislation. Act of
June 28, 2018, No 2018-55, § 4(3). Accordingly, all
references herein to section 7342 are to the version in effect
prior to Act No. 2018-55.
Section 7319 provides:
Except as otherwise prescribed by general rules:
(1) An initial application to a court under this subchapter
shall be made to the court of the county in which the
agreement prescribes that the arbitration hearing shall be
held or, if the hearing has been held, in the county in which
the hearing was held.
(2) If an application to a court cannot be made under
paragraph (1) the application shall be made to the court in
the county where the adverse party resides or has a place
of business or, if he has no residence or place of business in
this Commonwealth, to the court of any county.
(3) All subsequent applications to a court shall be made to
the court hearing the initial application unless that court
otherwise directs.
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[42 Pa.C.S.A. § 7319.]
Before this [c]ourt, Steel River asserted that the matter is
governed by section 7319(3), because it previously filed a
petition, seeking confirmation of the Reasoned Interim Award, in
the Philadelphia [c]ourt. Thus, it argued, any “subsequent
applications” must be filed in the same [c]ourt. [] Bainbridge
responded that the Philadelphia [c]ourt determined that Steel
River’s prior petition was premature, and it therefore should not
control under section 7319(3). It is unnecessary to resolve this
issue. If [] Bainbridge is correct that paragraph (3) does not
apply, then venue is controlled by section 7319(1). Although the
parties’ arbitration agreement does not specify a location for the
arbitration hearing, the hearings in this matter were held in
Philadelphia. Therefore, under [a straightforward application of
section 7319(1)], [Bainbridge’s p]etitions [] should have been
filed in Philadelphia, “the county in which the hearing was held.”
[]
Trial Court Opinion, 10/30/19, at 6-7.
As an initial matter, Bainbridge claims that its filing seeking declaratory
relief was not actually a petition, but was an action seeking such relief. See
Appellant’s Brief, at 6-7. This Court has previously stated that “[t]o challenge
an arbitration award, the proper procedure requires the filing of a timely
petition, alternatively called an ‘appeal,’ with the [c]ourt of [c]ommon [p]leas,
to vacate or modify the arbitration award. The statute does not provide
for any alternative procedure, such as a [d]eclaratory [j]udgment
action[.]” Lowther v. Roxborough Mem’l Hosp., 738 A.2d 480, 485 (Pa.
Super. 1999) (emphasis added). Indeed, despite Bainbridge’s attempt to
recast the petitions to set aside as declaratory judgement actions,
Bainbridge’s filing in the Montgomery County court was titled “Petition to Set
Aside Interim Arbitration Award” and was purportedly filed “pursuant to 42
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Pa.C.S.A. [§] 7341,” in addition to seeking declaratory relief.5 See Petition to
Set Aside Interim Arbitration Award, 4/13/18, at 1.
Here, the trial court applied the plain language of section 7319(1), and
found it applicable to Bainbridge’s petition because multiple arbitration
hearings—though not all—had taken place, and all had been held in
Philadelphia. On the issue of whether completion of all hearings is necessary
for section 7319(1) to apply, the trial court noted that:
The statutory language does not support [] Bainbridge’s reading
that where an arbitration encompasses multiple hearings, all of
the hearings must be concluded before the venue provision of
section 7319(1) applies. [] Bainbridge presents no plausible
purpose that the Legislature might have had in enacting a statute
that, under [] Bainbridge’s interpretation, would specify the venue
of judicial proceedings when all arbitration hearings are final and
concluded, but would be wholly indifferent to venue when some
hearings have been held but other aspects of the arbitration
remain to be completed.3
3 It is of no consequence that paragraph (1) refers to “the
hearing” in the singular. Under the Statutory Construction
Act of 1972, “[t]he singular shall include the plural, and the
plural, the singular.” 1 Pa.C.S.[A.] § 1902.
Trial Court Opinion, 10/30/19, at 7-8.
We agree with the trial court’s reasoning. The court correctly pointed
out that, under section 1902 of the Statutory Construction Act, the language
of section 7319(1) should be read in its inclusionary form: “[a]n initial
application . . . shall be made to the court of the county in which the
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5 We note that by following the appropriate procedure set out in Lowther,
supra, Bainbridge is able to challenge whether the arbitrator’s award can be
confirmed, which is the same claim Bainbridge seeks to raise in its declaratory
judgment action.
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agreement prescribes that the arbitration hearing[(s)] shall be held, or if the
hearing[(s)] has[/have] been held, in the county in which the hearing[(s)]
was[/were] held.” See 42 Pa.C.S.A. § 7319(1). If the Legislature had
intended Bainbridge’s reading, it could have substituted the word “held” for
“completed.” Thus, we conclude, by the plain meaning of the statute, section
7319 is applicable to situations in which some, but not all, hearings have been
held.
Here, because multiple hearings were held in Philadelphia prior to
Bainbridge’s filing of its petition in the Court of Common Pleas of Montgomery
County, and because, by the plain meaning of the statute, completion of all
hearings is not required for the application of section 7319(1), the trial court
did not abuse its discretion in determining that venue was proper in
Philadelphia. See Baylson, supra.
In its second issue on appeal, Bainbridge argues that section 7319(2) is
the applicable section of the Act in this situation, rather than section 7319(1).
See Appellant’s Brief, at 33-34. We disagree, and find that the same plain
reading of the statute, as described above, answers this question as well. We
discern no reason why Bainbridge’s application “cannot be made under
paragraph (1)[.]” See 42 Pa.C.S.A. § 7319(2). Therefore, there was no abuse
of discretion. See Baylson, supra.
In its third issue, Bainbridge argues that Steel River waived its objection
to venue because it filed its answer fifteen minutes before it filed its
preliminary objections. See Appellant’s Brief, at 24-27. Steel River claims
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that it made the filings in response to the trial court’s rule to show cause,
which directed it to respond by “filing an answer[.]” See Appellee’s Brief, at
9-10. Further, Steel River argues that it filed both preliminary objections and
an answer with new matter on the same day and only minutes apart. Id. We
agree with Steel River and decline to find waiver.
We have previously held that a party’s error is excusable when it is the
result of a “breakdown in the court’s operations.” See Commonwealth v.
Stansbury, 219 A.3d 157, 160 (Pa. Super. 2019). In Stansbury, we declined
to quash an appeal when a pro se defendant filed a single notice of appeal
listing two docket numbers, which was then contrary to the permitted
procedure, pursuant to Commonwealth v. Creese, 216 A.3d 1142 (Pa.
Super. 2019).6 In Stansbury, the trial court advised the defendant “that he
has thirty days from this day, to file ‘a written notice of appeal to the Superior
Court.’” Id. at 159 (emphasis in original). This amounted to a “misstatement”
of the law because the defendant’s case arose under two docket numbers. Id.
at 160. Therefore, at that time, pursuant to Creese, defendant was required
to file two separate notices of appeal. Failure to do so ordinarily mandated
quashal. Due to this “breakdown in court operations,” however, the
Stansbury court “overlook[ed] the defective nature of [the] Appellant’s []
notice of appeal[.]” Id.
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6As noted in footnote 1, above, the rule mandating quashal, as stated in
Creese, was overruled in Commonwealth v. Johnson, 2046 EDA 2019 (Pa.
Super. filed July 9, 2020) (en banc).
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Here, Steel River was instructed by the trial court, via the rule to show
cause, to respond by “filing an answer[.]” See Rule to Show Cause, 4/25/18
(emphasis added). We find that this instruction misled Steel River and
amounted to a breakdown in court operations. See Stansbury, supra.
Because Steel River filed both the preliminary objections and the answer with
new matter at about the same time, and both documents reference the issue
of improper venue, under these circumstances, we decline to elevate form
over substance. Thus, Steel River’s objection to venue was not waived. See
Fischer v. UPMC Northwest, 34 A.3d 115, 120 (Pa. Super. 2011) (party
error excusable, and appellate rights can be reinstated nunc pro tunc, when
resulting from “breakdown in [] court’s operations,” which includes party being
unintentionally misled by court or an administrative board); see also Flynn
v. Unemployment Comp. Bd. of Review, 159 A.2d 579, 581 (Pa. Super.
1960) (“Where a claimant is unintentionally misled by an official who is
authorized to act in the premises, the time may also be extended when it is
possible to relieve an innocent party of injury consequent of such misleading
act.”).
Finally, Bainbridge claims that Judge Saltz erred by failing to recuse
himself. Specifically, Bainbridge argues that “given the highly sensitive nature
of the issues before the bench, [Bainbridge] reasonably believes it to be
impossible for implicit bias not to color [Judge Saltz’s] election to consider
[the] venue issue without first recusing himself as a means of avoiding the
more difficult recusal question.” Appellant’s Brief, at 36. In making its
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argument for recusal, Bainbridge relies only upon: (1) the substance of Judge
Saltz’s letter to the parties; and (2) Bainbridge’s claim that the arbitrator was
biased, and thus, Judge Saltz is unable to impartially weigh the case because
of his prior relationship with the arbitrator.7 See Bainbridge’s Motion to
Recuse, 6/3/19, at 8-9. We disagree.
Our deferential standard of review for a denial of a recusal demand is
well-settled:
____________________________________________
7Bainbridge’s motion to recuse, in twenty-six numbered paragraphs, primarily
set forth arguments that the arbitrator was unfairly biased in favor of Steel
River. See Bainbridge’s Motion to Recuse, 6/3/19. With regard to Judge
Saltz’s ability to hear the case impartially, Bainbridge’s motion to recuse
stated in relevant part:
19. In a letter dated May 1, 2019, [Judge Saltz] advised the
parties that [he] and Mr. Lowe were once colleagues at the same
law firm for a few years; were later involved in a lawsuit in which
they represented differen[t] parties; and have maintained a
casual acquaintance through the present date. As a result, the
[c]ourt invited the parties to object to [Judge Saltz’s] continued
participation in the case, ultimately ordering any party wishing to
move for recusal to do so by June 3, 2019.
* * *
24. Here, given [Judge Saltz’s] lengthy past relationship with Mr.
Lowe, [Judge Saltz] has likely already developed opinions with
respect to Mr. Lowe’s character.
25. Accordingly, because Mr. Lowe’s credibility and character are
a material issue for determination, it is respectfully submitted that
[Judge Saltz’s] likely existing opinions on Mr. Lowe’s character,
whether positive or negative, could affect the [c]ourt’s
consideration of the [p]ending [p]etition, and thus create an
appearance of impropriety.
Id. at 8-9.
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Our Supreme Court presumes judges of this Commonwealth are
honorable, fair and competent, and, when confronted with a
recusal demand, have the ability to determine whether they can
rule impartially and without prejudice. The party who asserts a
trial judge must be disqualified bears the burden of producing
evidence establishing bias, prejudice, or unfairness necessitating
recusal and the decision by a judge against whom a plea of
prejudice is made will not be disturbed except for an abuse of
discretion.
Commonwealth v. Kearney, 92 A.3d 51, 60 (Pa. Super. 2014) (quoting
Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004)) (internal citations,
quotation marks, and brackets omitted).
As a general rule, a motion for recusal is initially directed to and
decided by the jurist whose impartiality is being challenged. 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.
Id. (quoting Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998)).
“When a judge believes his impartiality can be reasonably questioned, he
should recuse himself, just as he should if he himself has doubt as to his ability
to preside impartially.” In Interest of Morrow, 583 A.2d 816, 819 (Pa.
Super. 1990) (citing Commonwealth v. Goodman, 311 A.2d 652, 654 (Pa.
1973)) (internal quotation marks omitted).
Bainbridge cites to Rules 1.2 and 2.11 of the Code of Judicial Conduct
in support of its claim that Judge Saltz should have recused himself. See
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Appellant’s Brief, at 35-36. We have previously found that an appellant’s
reliance on the Code of Judicial Conduct is “misplaced” when arguing that the
trial judge erred in failing to recuse. See Kearney, supra at 62-63.
[E]nforcement of the Code of Judicial Conduct is beyond the
jurisdiction of [the Superior] Court. See Reilly v. Southeastern
Pennsylvania Transp. Auth., 489 A.2d 1291, 1298 (Pa.
1985), overruled on other grounds as recognized by Gallagher v.
Harleysville Mut. Ins. Co., 617 A.2d 790, 794 (Pa. Super.
1992). Our Supreme Court explained:
In furtherance of our exclusive right to supervise the
conduct of all courts and officers of the judicial branch of
government pursuant to Article V, Section 10(c) of our
Constitution, we have adopted rules of judicial conduct for
ourselves and all members of the judicial branch. [] The
enforcement of those rules, however, is beyond the
jurisdiction of the Superior Court and to the extent that it
has attempted to interpret Canon 3 C, by creating new
standards of review on recusal motions, procedures for
raising recusal questions, or for enforcement of violations of
the Code, they are without effect, as unwarranted intrusions
upon this Court’s exclusive right to supervise the conduct of
all courts and officers of the judicial branch.
Reilly, supra at 1298 (footnote omitted). The Supreme Court
added:
Canon 3 C, like the whole of the Code of Judicial Conduct,
does not have the force of substantive law, but imposes
standards of conduct upon the judiciary to be referred to by
a judge in his self-assessment of whether he should
volunteer to recuse from a matter pending before him. The
rules do not give standing to others, including [the] Superior
Court, to seek compliance or enforcement of the Code
because its provisions merely set a norm of conduct for all
our judges and do not impose substantive legal duties on
them.
Id. (emphasis in original).
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Id. Bainbridge offers no other support for why the trial court erred with regard
to recusal. Moreover, our independent review of the record offers no support
for Bainbridge’s position; Judge Saltz and Mr. Lowe’s prior relationship is
limited to “professional acquaintances” and “chance encounters.” See Letter
from Chambers of the Honorable Jeffrey S. Saltz, 5/1/19. This relationship
does not “create an appearance of impropriety.” See Bainbridge’s Motion to
Recuse, 6/3/19, at 9. Moreover, it does not reasonably call into question
Judge Saltz’s impartiality. See In Interest of Morrow, supra. Therefore,
the trial judge did not abuse his discretion in declining to recuse. See
Kearney, supra at 60.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2020
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