Nicholas Malfitano Jan. 21, 2016, 1:38pm


PHILADELPHIA – On Tuesday, a federal appeals court denied an emergency application for a writ of mandamus to a pair of civil case defendants, who were seeking the writ to ensure the recusal of the judge assigned to their case.

In a per curiam ruling, judges Julio M. Fuentes, Cheryl Ann Krause and Anthony J. Scirica denied the mandamus writ seeking review of Judge Harvey S. Bartle III of the U.S. District Court for the Eastern District of Pennsylvania and his refusal to recuse himself from the case involving Vizant Technologies and its CEO Joseph Bizzarro versus Julie P. Whitchurch and Jamie Davis.

In January 2015, Vizant Technologies and Bizzarro filed a complaint in the District Court against Whitchurch and Davis, both former employees of Vizant, for injunctive relief and damages, alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, breach of contract, misappropriation of trade secrets, defamation, tortious interference with existing and prospective contractual relationships, abuse of process, conversion, fraud, and civil conspiracy. 

In April, the District Court held a hearing and partially granted Vizant’s motion for a preliminary injunction and in June, sanctioned Whitchurch and Davis for failing to comply with the terms of the injunction. 

On Dec. 4, Whitchurch and Davis filed a motion under federal law seeking Bartle’s recusal based on “(1) perceived antagonism towards them during the preliminary injunction hearing and (2) information he allegedly received improperly regarding a related civil proceeding between these same parties in Georgia state court.” 

Bartle denied the motion for recusal and in response, Whitchurch and Davis filed this petition for a writ of mandamus, for Bartle allegedly engaging in ex parte communications and breaching his impartiality.

The Third Circuit termed a writ of mandamus as “an extraordinary remedy.”

Though Whitchurch and Davis believed Bartle levied a “verbal thrashing” upon them during Court proceedings, the Third Circuit said their review of the transcripts “do not reveal any exchanges between Judge Bartle and the parties that rise to the level of ‘deep-seated favoritism or antagonism that would make fair judgment impossible.”

Whitchurch and Davis also accused Bartle of engaging in so-called ex parte communications with plaintiff counsel, claiming said counsel’s billing and time-keeping records listed contact with Bartle “prior to scheduled hearings or other deadlines.”

The judges of the Third Circuit did not believe any conflict existed in that contact. 

“In this context, there is nothing to indicate that the telephone calls with the District Judge’s chambers were anything other than communications regarding procedural issues, and there is no indication that substantive advice was either solicited or offered during the calls,” the Third Circuit stated.

Additionally, Whitchurch and Davis claim Bartle’s recusal was warranted based on plaintiffs’ counsel’s letter to Bartle’s chambers which included an “Emergency Motion to Remove Improperly Filed Confidential Information from the Record”, filed by one of the plaintiffs in the related Georgia action. 

“This motion, however, was discussed at the preliminary injunction hearing in the presence of Whitchurch and Davis and was provided the following day in response to the specific inquiry made by Judge Bartle at the hearing,” the Third Circuit’s ruling stated. “The record, therefore, does not demonstrate that plaintiffs’ counsel’s submission of that motion to the District Judge’s chambers created any sort of pervasive bias that would necessitate recusal.” 

Further, the record does not show that Judge Bartle engaged in improper ex parte communications with the judge presiding over the related Georgia state court action. In addressing this claim when denying the motion for recusal, Bartle stated he “never engaged in any communications with the state court judge.”

“Whitchurch and Davis simply have not shown a clear and indisputable right to mandamus relief. Accordingly, the petition for a writ of mandamus (including the supplement thereto) is denied. Petitioners’ motion to stay the District Court proceedings is denied,” the Third Circuit said.

The plaintiffs are represented by Edward T. Kang, Gregory H. Mathews and Jason Powell of Kane Haggerty & Fetbroyt, in Philadelphia.

The defendants represented themselves in this matter.

The garnishees are represented by Joel Larkin Perrell Jr. of Miles & Stockbridge in Baltimore, Md. and Jon C. Sirlin of Sirlin Gallogly & Lesser, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 16-1005

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00431

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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