PENNSYLVANIA RECORD

A Philadelphia trial judge has been chastised by the state Superior Court for failing to

reveal his lawyer wife’s involvement in a motor vehicle insurance case that previously came before the jurist.

In the case of George Barnes v. Warren G. Keller v. Westfield Group, Philadelphia Common Pleas Court Judge Allan Tereshko had granted summary judgment to defendant Westfield Group, also known as Westfield Insurance Co., back on Aug. 1, 2011.

In an unpublished majority opinion written by Superior Court Judge Jacqueline O. Shogan, the appellate panel reversed Tereshko’s ruling and remanded the case back to the lower court.

In an accompanying concurring opinion that was published, however, fellow Superior Court Judge Anne Lazarus, a former Philadelphia trial court judge, wrote that she was disappointed that Tereshko never disclosed his wife’s employment with the law firm that represented the insurance company prior to the granting of summary judgment in favor of the defendant.

“Not only did the trial judge err on the law as applied to the facts of this case, but he failed in his professional responsibility as set forth in the Code of Judicial Conduct, and as a result, prejudiced the litigants,” Lazarus wrote.

Tereshko’s wife, Heather, had been an associate with the firm Post & Schell at the time.

In his memorandum of law in support of his motion to reconsider, reverse and recuse, the plaintiff stated that his counsel didn’t learn of the relationship between Allan and Heather Tereshko until filing a notice of appeal involving the granting of summary judgment in favor of the defendant, according to the Superior Court opinion.

Lazarus wrote that the Code of Judicial Conduct provides that judges should recuse themselves in proceedings in which their impartiality might be reasonably questioned, including cases of spousal involvement in court matters.

“Judge Tereshko states that in addition to the recusal issue having no merit, it is also waived because plaintiff did not raise it until after summary judgment was granted,” Lazarus wrote. “However, as the plaintiff correctly states, he did not become aware of the judge’s wife’s connection to the defendant’s law firm until after judgment was entered and then only by happenstance.

“Had the judge at the outset of the matter properly disclosed the potential conflict, the parties would have been aware of it before entry of summary judgment and then could have raised it in a timely fashion,” Lazarus continued. “Where the court has a duty to disclose, the failure of the party to raise the issue cannot constitute waiver.”

The opinion states that while a trial judge doesn’t have to recuse himself or herself in a case where his or her spouse is affiliated with a law firm working on a case overseen by the judge under the Code of Judicial Conduct, it was “Judge Tereshko’s affirmative duty to disclose the fact that his wife works as an attorney for the defense firm so that the parties could then investigate the matter and decide whether further action (i.e., a motion for recusal) was warranted.”

“Although recusal may not be mandated in cases such as this one, the objective standard is whether a reasonable minority of litigants appearing before the tribunal would believe that the judge could be fair and impartial,” Lazarus wrote.

Allan Tereshko, the opinion states, reached his conclusion not to recuse himself because his wife had no personal financial stake in the Westfield case.

Lazarus called this nothing short of “post hoc” reasoning, and said two significant ethical issues have been raised because of it: doubt regarding the trial court’s transparency, and the lack of recourse for the aggrieved party to test the conclusion of no partiality or bias by discovery should he so desire.

“Where a court has specific knowledge of a private matter or situation in which his or her impartiality may reasonably be questioned, it is his duty to disclose that information to the parties,” Lazarus wrote in her concurring opinion. “Because Judge Tereshko’s actions prejudiced the parties, I would not only join the majority in noting my disapproval, but vacate the trial court’s entry of summary judgment and remand the matter to allow the plaintiff to create a record for a full hearing on his recusal motion.”