Pa. Superior Court releases opinion in case in which Phila. Judge Tereshko was chastised

The Pennsylvania Superior Court this week released the opinion in the case that led to

the appellate body publicly reprimanding a Philadelphia judge for not disclosing that his attorney wife was working for a defendant in the case that ended up going in the defense’s favor.

In the opinion, which was previously unpublished, the three-judge appellate court panel reversed the decision of Philadelphia Common Pleas Court Judge Allan L. Tereshko to grant summary judgment to a vehicle insurance company in a case in which a worker sued the defendant for failing to issue uninsured motorist benefits.

In September, the plaintiff in the case, George Barnes, filed an appeal with the state Superior Court challenging Tereshko’s Aug. 1 order that granted summary judgment to Westfield Group, also known as Westfield Insurance Co., essentially dismissing the case.

Barnes had filed suit against Westfield in late May 2010 over failure to cover him in an injury case arising from a vehicle-pedestrian accident.

At the time, Barnes was working for a maintenance company that held a policy with Westfield.

The incident occurred in the parking lot of a Wawa convenience store in Northeast Philadelphia when Barnes was struck by a vehicle belonging to a Wawa customer who was backing out of a parking space while Barnes was performing maintenance work in the parking lot of the business.

Last month, the Superior Court only released the concurring opinion of Judge Anne Lazarus, herself a former Philadelphia jurist, which chastised Tereshko for not divulging that his wife, Heather, had been an associate with the firm Post & Shell at the time the case was playing out in Tereshko’s courtroom.

The law firm was representing Westfield at the time.

While Heather Tereshko apparently stressed that she had no financial stake in the outcome of the case, Lazarus penned an opinion that reprimanded Judge Tereshko for not coming clean and disclosing that his wife worked for the firm.

“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 in her concurring opinion, which was released late last month.

Meanwhile, the panel’s majority opinion in the case wasn’t published until Nov. 27.

In it, the Superior Court judges – Jacqueline O. Shogan and William H. Platt were the other two who participated in the case – were charged with addressing two issues raised on appeal: when a commercial motor vehicle insurance policy contains ambiguous and internally inconsistent language defining who is an “insured,” what is an “uninsured motor vehicle,” and who is entitled to recover uninsured motorist benefits, is an individual entitled to uninsured motorist benefits when he is struck by an uninsured motorist while using equipment on a trailer mechanically and electronically connected to a cargo van?

And secondly, by deciding motions and other matters in a case in which the ruling judge’s spouse is employed as an attorney by counsel for a party, and failing to disclose this relationship to the parties, does a judge create an appearance of impropriety that warrants that the court’s rulings be vacated to permit the matter to be reassigned to a judge whose impartiality is not questioned?

On the first issue, Barnes had claimed that the trial court erred when it concluded that that the “jetter,” or the device Barnes was using during the scope of his job on the day of the parking lot accident, was not a motor vehicle, that Barnes was not “vehicle oriented” and not “occupying” a vehicle when he was struck by the other car, and that because of these factors he wasn’t eligible to recover uninsured motorist benefits.

The panel concluded that it could not conclude that Westfield is entitled to summary judgment as a matter of law on the issue.

“The record reflects that [Barnes] was engaged in work that required using the jetter, which … was attached to a van and could be construed as a motor vehicle, at the time he was struck…,” the opinion reads. “In summary, a trailed vehicle can be a motor vehicle.”

Because there are genuine issues of fact, the appellate judges wrote, the order granting summary judgment to Westfield needed to be reversed.

The case was remanded to the trial court for further proceedings.

Then came Lazarus’ concurring opinion, this time attached to the majority opinion, in which the judge voices her “disapproval” of Judge Tereshko’s failure to disclose his wife’s employment with the defense firm in the case.

While judicial canons don’t require a judge to recuse himself or herself from proceedings in which a spouse is affiliated with a law firm involved in a case, Lazarus wrote that it was Tereshko’s “affirmative duty” to at least disclose the nature of the relationship so that the parties could investigate the matter and decide whether further action, such as a motion for recusal, would be 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.

“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.”