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J. A30038/10 2010 PA Super 219 BERNADETTE E. SLUSSER and PNC BANK, NA, as Co-Executors of the ESTATE OF THOMAS A. SLUSSER, DECEASED, EARL R. SLUSSER, MATTHEW B. BAYZICK and THOMAS J. SLUSSER, v. LAPUTKA, BAYLESS, ECKER and COHN, P.C. and MARTIN D. COHN, ESQUIRE APPEAL OF: MARTIN D. COHN, ESQUIRE, Appellant BERNADETTE E. SLUSSER and PNC BANK, NA, as Co-Executors of the ESTATE OF THOMAS A. SLUSSER, DECEASED, EARL R. SLUSSER, MATTHEW B. BAYZICK and THOMAS J. SLUSSER, : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 1727 MDA 2008 IN THE SUPERIOR COURT OF PENNSYLVANIA

: : : : : : : v. : : LAPUTKA, BAYLESS, ECKER and COHN, : P.C. and MARTIN D. COHN, ESQUIRE : : APPEAL OF: LAPUTKA, BAYLESS, ECKER : & COHN, P.C., : : Appellant :

No. 1728 MDA 2008

Appeal from the Judgment of August 29, 2008, in the Court of Common Pleas of Luzerne County, Civil Division, at No. 6741 C of 2000. BEFORE: ALLEN, MUNDY and COLVILLE*, JJ.

_________________ *Retired Senior Judge assigned to the Superior Court.

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OPINION BY COLVILLE, J.:

Filed: November 29, 2010

This matter presents the Court with consolidated appeals from a judgment entered against Appellants and in favor of Appellees. The parties also have filed a number of motions which we must resolve. We deny the parties' motions, vacate the judgment and all of the orders entered by former Luzerne County Judge Mark A. Ciavarella ("Ciavarella"), and remand for a new trial. While the certified record in this matter is voluminous, we offer the following, relatively brief summary of the background underlying this matter. Appellees filed a complaint against Appellants. The complaint sounded in

legal malpractice and contained counts of negligence, breach of contract, breach of fiduciary duty, and detrimental reliance. Robert J. Powell

("Powell") and Jill Moran ("Moran") signed Appellees' complaint as counsel. The case was assigned to Ciavarella. After pre-trial procedures were resolved, the matter was set for trial. Appellees' counsel during trial were Powell, Stephen A. Seach ("Seach"), and Jonathan Lang. Prior to the trial, Seach indicated on the record that the

matter had been "bifurcated." N.T., 01/22-23/08, at 70-71. A jury would hear the negligence, breach of contract, and breach of fiduciary duty claims; the detrimental reliance claims would be heard sometime after the jury trial. Id.

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Subsequent to the conversation regarding the bifurcation of the trial, the following exchange took place between Appellants' counsel and Ciavarella. [Counsel]: Your Honor, I have two issues to raise, if I may. One is, apparently there's been some considerable publicity involving Your Honor and also Mr. Powell, and I guess there's other information that suggests that - - I just want to ask about whether there's a relationship between you and Mr. Powell which would present an issue to the fairness of the trial in this case by my clients. That's all. [Ciavarella]: What significant concerning me and Mr. Powell? publicity has there been

[Counsel]: I understand there was something to do with a certain building for the county. In any event, I'm just asking the question whether there is a relationship between you and Mr. Powell which would present an issue about Your Honor sitting as the judge for this case. [Ciavarella]: Based on what? [Counsel]: I'm asking. [Ciavarella]: I'm asking you, based on what? [Counsel]: issue. I'm sorry, I'm asking the Court whether there's an

[Ciavarella]: And I want to know what you're basing that on. [Counsel]: The question? [Ciavarella]: Yes. [Counsel]: I'm just basing it on - [Ciavarella]: Do you ask everybody judge [sic] that question - -

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[Counsel]: No, I don't. [Ciavarella]: - - that you appear in front of? [Counsel]: Judge, if the answer is by Your Honor - - I'm just asking the question. [Ciavarella]: I want to know why you're asking that question. [Counsel]: Because I thought to ask it. I thought to ask it. [Ciavarella]: Anything else? [Counsel]: There's - - can I - - I'm raising the issue. [Ciavarella]: Unless you want to give me a basis for that question, I don't see why it's even asked. [Counsel]: It's asked because I just want to be cautious about the situation. That's all. [Ciavarella]: What situation? [Counsel]: I just want to be cautious because it's been mentioned to me a number of times. [Ciavarella]: By whom? [Counsel]: Well, they're privileged discussions. But it's been brought - - and by other lawyers. That's all. I'm just asking the question. If there's not an issue - [Ciavarella]: What relationship? [Counsel]: I'm sorry. Your Honor, I don't - - I'm asking the question. If there's been - [Ciavarella]: And now I'm asking the question. [Counsel]: for. I don't have details [if] that's what you're looking

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[Ciavarella]: Well, then, why ask the question? [Counsel]: I'm just inquiring whether there is. [Ciavarella]: Anything else? [Counsel]: Well - [Ciavarella]: I don't have to answer that question based upon that. Why should I answer that question based upon that? You want to present something to me, present it, and I'll be glad to answer. [Counsel]: No, Your Honor. I believe I was - - I have an obligation just to raise the issue, or at least that's the way I feel with respect to my clients. [Ciavarella]: If you want to be specific, I can answer it. If you want to be specific about what relationship you're referring to, I'll be glad to answer it. [Counsel]: Obviously any relationship which would impact or interfere with or create the appearance that there's an issue about Your Honor's ability to sit and fairly judge the case. [Ciavarella]: There is none. [Counsel]: Okay. [Ciavarella]: Anything else? [Counsel]: And the reason, in particular, is because the idea that there may have been leisure activities in which the two of you have been engaged or other matters and that's all. [Ciavarella]: Leisure activities. [Counsel]: Vacations or something similar. [Ciavarella]: I have never been on a vacation with Mr. Powell. I've never been on a vacation with anyone from his family. I

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may have socialized with Mr. Powell, like I have socialized with other lawyers, at various events. Id. at 72-76. Ciavarella later stated for the record that he has a social

relationship with several attorneys in Appellants' law firm. On February 4, 2008, the jury returned a verdict in favor of Appellees in the amount of $3,411,141.00. letter in the trial court. On February 7, 2008, Appellees filed a

In this letter, Appellees reminded the court that

their detrimental reliance claims were deferred for a bench trial and that Appellees wished to proceed on the claims. Appellees requested a pre-trial conference to schedule the bench trial and to discuss the evidence the parties intended to introduce at the trial. Appellants timely filed a motion for post-trial relief on February 14, 2008. Nearly a month later, Appellants filed a supplement to their motion for post-trial relief. In this supplement, Appellants claimed that Ciavarella

had a bias in favor of Appellees and against Appellants. On July 3, 2008, Appellants filed a "second supplement" to their motion for post-trial relief. Appellants recounted the pre-trial exchange

between their attorney and Ciavarella. Appellants then made the following averments: 4. According to an article published by the Citizens Voice on May 29, 2008, Judge Ciavarella has a financial interest in W-Cat Inc. which is reportedly building a multi-million dollar, 86 unit townhouse development in Wright Township, Luzerne County Pennsylvania. . . .

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5. According to the article, Judge Ciavarella is a guarantor for a loan to W-Cat, Inc. . . . 6. According to the article, the president, treasurer and secretary of W-Cat, Inc. is Jill Moran, a principal in Robert Powell's law firm. . . . 7. Moran, along with Powell, signed the complaint in this matter. 8. Moran is the prothonotary of the Luzerne County Court of Common Pleas. 9. According to the article, the documents filed with Luzerne County indicate that Robert Powell is the co-owner of W-Cat, Inc. . . . 10. According to the article, a project narrative statement with the Luzerne County Planning Commission indicates that the shareholders of W-Cat, Inc. are [Appellees'] counsel, Robert J. Powell and Jill Moran, a member of Powell's law firm. . . . 11. In the Statement of Financial Interest filed by Judge Ciavarella for the calendar year 2007, Judge Ciavarella disclosed his interest in W-Cat, Inc. as a financial interest in a legal entity in business for profit. . . . 12. Assuming the Citizens Voice article is accurate, Judge Ciavarella was and is in business with principals of the Powell Law Group, Jill Moran and Robert Powell. 13. Judge Ciavarella did not disclose this relationship when asked by defense counsel. . . . Second Supplement to Appellants' Motion for Post-Trial Relief, 06/03/08, at

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