Third Circuit panel orders federal judge's recusal in Pa. Convention Center suit, vacates dismissal of claims

By Jon Campisi | Aug 16, 2013

A U.S. Third Circuit Court of Appeals panel has reassigned a breach

contract case brought by the former chief financial officer of the Pennsylvania Convention Center against the organization’s president, ruling that the jurist overseeing the matter should have recused herself because of ties to certain people connected with the litigants.

In an Aug. 14 per curiam order and opinion, the federal appeals panel determined that Petrese B. Tucker, who is the chief judge at the Eastern District of Pennsylvania, should not have taken on the case of Madeline Apollo versus Ahmeehan Young.

Tucker had been randomly assigned to the matter.

Apollo, former CFO of the Convention Center, is suing Young, its president and chief executive officer, over allegations that Apollo was fired in retaliation for raising concerns about spending.

The plaintiff claims that she was let go for attempting to “protect the integrity of the Convention Center’s operations and finances.”

Apollo’s suit alleges that Young used the center’s credit card and taxpayer funds as her own “personal piggybank,” and violated both state and federal law when she used the company credit card to pay for political fundraising events that were held at the center.

The lawsuit was filed in October 2011 at the U.S. District Court in Philadelphia. Defense attorneys subsequently filed a motion to dismiss the litigation.

In seeking to have Tucker removed from the case, Apollo argued that Tucker abused her discretion when the judge determined that her volunteer service on the board of directors for the Avenue of the Arts Inc. did not require recusal from the case.

Apollo ultimately petitioned the Third Circuit to reassign the matter to a different judge at the Eastern District of Pennsylvania and simultaneously vacate Tucker’s dismissal of the six counts in the complaint.

Apollo had argued that recusal was necessary because Tucker was a board member of Avenue of the Arts, Inc., a group that works to “reinvigorate” the Avenue of the Arts section of Philadelphia as a cultural center of the city.

The group works closely with businesses in the district, which includes the Pennsylvania Convention Center, the record shows.

Apollo stated that the Pennsylvania Convention Center Authority, also named as a defendant in the lawsuit, provides the Avenue of the Arts Inc. with direct monetary contributions, making Tucker’s role in the litigation improper.

The record shows that Apollo filed a motion requesting Tucker’s recusal from her case back in late February 2012; the judge denied the request following a hearing in March of that year.

Tucker also denied Apollo’s motion for reconsideration two months later.

Last June, Tucker dismissed with prejudice the counts in the suit alleging breach of contract, entitlement to relief based on promissory estoppel, procedural due process violations, substantive due process violations, First Amendment retaliation, and civil conspiracy in violation of the federal Civil Rights Act.

Tucker let stand Apollo’s equal protection claim.

In her petition to the Third Circuit, Apollo argued that Tucker’s role as an AAI board member created an appearance of partiality because AAI promotes the business interests of the Pennsylvania Convention Center Authority and the PCCA donates money to the AAI.

Apollo argued that Tucker’s position on a board whose mission is to “promote the interest of a Defendant” created an appearance of bias.

Convention Center lawyers counter-argued that recusal wasn’t necessary because Tucker’s service on AAI’s board wouldn’t create the appearance of partiality in the eyes of a “reasonable observer,” and due to the fact that case law doesn’t support recusal based on “coincidental” connections.

Professional interaction with potential witnesses, defense attorneys asserted, doesn’t mandate disqualification and wouldn’t cause a reasonable person to question a judge’s impartiality.

The Third Circuit panel wrote that while it found no evidence of actual bias on the part of Tucker, it still reasoned that the judge’s impartiality could be reasonably questioned.

The fact that Tucker communicated the potential conflict in an earlier correspondence with the AAI’s executive director “only reinforces that conclusion,” the ruling states.

“Given the Judge’s awareness of this potential conflict, and in light of the fact that the judiciary thrives not only with the absence of actual bias but also with the absence of perceived partiality, the proper course in this case would have been recusal,” the Third Circuit panel wrote. “While we do not doubt the Judge’s ability to preside impartially over Apollo’s action against the PCCA, the accumulation of her connections to the litigation endangers the appearance of neutrality that is essential for the judiciary to retain the public’s trust.”

In the end, the panel granted Apollo’s petition for a writ of mandamus in the case, vacated Tucker’s order partially granting the defense motion to dismiss, and remanded the case to the District Court for assignment to a different trial judge.

The decision was written by Third Circuit Judges D. Brooks Smith, Michael A. Chagares and Anthony J. Scirica.

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