Deluca v. Mountaintop Area Joint Sanitary Auth.

234 A.3d 886

Colleen DELUCA, Appellant

v.MOUNTAINTOP AREA JOINT SANITARY AUTHORITY and Thomas G. Keiper

No. 1024 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs May 12, 2020

Decided June 16, 2020

Kandice K. Hull, Harrisburg, for Appellant.

Sean P. McDonough, Moosic, and Donald G. Karpowich, Drums, for Appellees.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY PRESIDENT JUDGE LEAVITT

Colleen DeLuca (DeLuca) appeals two orders of the Court of Common Pleas of Luzerne County (trial court). The first order denied the motion to recuse the Honorable William H. Amesbury from conducting a hearing on the petition of Mountaintop Area Joint Sanitary Authority and Thomas G. Keiper (collectively, the Authority) to enforce a settlement agreement. The second order granted the Authority's petition. On appeal, DeLuca contends that Judge Amesbury was obligated to recuse himself because of his involvement in the settlement discussions. DeLuca further contends that the evidence showed that she did not freely agree to the terms of the agreement that were entered into the record to settle her de facto condemnation petition against the Authority. For the following reasons, we affirm the trial court's orders.

Background

DeLuca owns a single-family home in Mountain Top, Pennsylvania, located adjacent to the Authority's sewage treatment plant. On several occasions between June 27, 2006, and April 26, 2011, DeLuca's property was flooded with untreated sewage. The infiltrations stopped when, in late 2011, the Authority upgraded its system.

On May 14, 2015, DeLuca filed a petition for appointment of a board of viewers pursuant to Section 502(c) of the Eminent Domain Code.¹ The petition alleged that the Authority had effected a de facto taking of her property by operating its sewage system in a way that caused sewage infiltration of her property.

In response, the Authority filed preliminary objections pursuant to Section 504(d) of the Eminent Domain Code,² which challenged the legality of DeLuca's petition. Alternatively, the Authority challenged the facts alleged in the petition and requested an evidentiary hearing on whether it had effected a de facto taking of DeLuca's property. The trial court denied the Authority's request to dismiss DeLuca's petition but granted the Authority an evidentiary hearing.

On June 29, 2016, after hearing the evidence of the parties, the trial court held that the Authority had effected a de facto condemnation of DeLuca's property between June 27, 2006, and April 26, 2011. In In Re Mountaintop Area Joint Sanitary Authority , 166 A.3d 553 (Pa. Cmwlth. 2017), this Court affirmed the trial court. DeLuca's de facto condemnation action proceeded with the appointment of a board of viewers.

By way of further background, in 2011, DeLuca filed a two-count action against the Authority.³ The first count sounded in trespass and sought damages as a result of the sewage infiltrations. The second count was filed under the Whistleblower Law, Act of December 12, 1986, P.L. 1559, as amended , 43 P.S. §§ 1421 - 1428. DeLuca's cleaning business had a contract with the Authority that she alleged was terminated because she complained about the sewage entering her house. The whistleblower/trespass action was assigned to Judge Amesbury.

On November 27, 2017, Judge Amesbury convened a pre-trial and settlement conference, which resulted in a settlement of DeLuca's de facto condemnation and whistleblower/trespass actions. The terms of the settlement were placed into the record, which states as follows:

THE COURT: We had a count of negligence. We have an eminent domain issue which constituted a tak[ing] as verified by an opinion that was rendered by my colleague Judge Tina Polachek Gartley and was affirmed by the Appellate Court[.]

* * *

THE COURT: At the same time we have a claim for punitive damages, as well as a whistleblower action.

The purpose in meeting today was to see if we could bring a resolution, a complete resolution to all outstanding theories that were presented before the [trial court], including the three that I just mentioned. This would include any allegations against the municipality and there will be no disparaging remarks to any present employee, management personnel, non-management personnel or solicitor past or present.

Did I cover that broad enough?

MR. KARPOWICH: And the public, Your Honor.

THE COURT: Okay.

MR. McDONOUGH: Your Honor, the eminent domain was under a separate court term and number. This court term and number was only for the trespass and for the whistleblower.

THE COURT: You brought the negligence claim separately?

MR. McDONOUGH: They were brought with the whistleblower originally and then there was a separate eminent domain proceeding.

THE COURT: That's under 5864 of 2015. So all will be included.

MR. McDONOUGH: Both lawsuits in all three counts, yes, Your Honor.

THE COURT: The settlement amount is $450,000. That has been entered into by the parties. On behalf of the plaintiff, sir, is that an agreement?

Mr. McDONOUGH: That part of the settlement, yes, Your Honor.

MR. KARPOWICH: Yes, Your Honor.

MR. ABELL: Yes, Your Honor.

Notes of Testimony (N.T.), 11/27/2017, at 2-3; Reproduced Record at 187a-88a (R.R. __).⁴ The Authority also agreed to provide DeLuca with a letter from its engineer detailing what "physical work was done by the Authority that addressed the prior overflow events." Id. at 4; R.R. 189a. The Authority's counsel explained that the "purpose of that letter will be so Ms. DeLuca can then provide that to a prospective purchaser of her house as part of her required seller's disclosure statement." Id. ; R.R. 189a.

Following the conference, DeLuca's counsel prepared a written settlement agreement and release for execution by the parties. The document stated that the Authority would pay DeLuca $450,000 and provide a letter from a professional engineer. The document also provided that DeLuca would terminate her whistleblower/trespass and condemnation actions and release the Authority. Finally, the document included a mutual non-disparagement agreement.

DeLuca refused to sign the agreement as requested by her counsel. In April 2018, the Authority filed a petition to enforce the settlement agreement.

On May 15, 2018, DeLuca's counsel filed a motion to withdraw as counsel. At the hearing on that motion, DeLuca's counsel, Attorney Richard Abell, testified that DeLuca had not paid his invoices for legal services in several years and that there had been a breakdown in the attorney-client relationship. DeLuca voiced "no disagreement" with Attorney Abell's request to withdraw as counsel; the trial court granted the motion. N.T., 5/25/2018, at 47; R.R. 145a. The trial court gave DeLuca 60 days to obtain new counsel.

DeLuca retained the law firm McNees Wallace & Nurick LLC, which entered its appearance on behalf of DeLuca in both the condemnation and whistleblower/trespass actions. The trial court postponed the hearing on the Authority's petition to enforce settlement scheduled for August 7, 2018, to October 30, 2018.

On October 12, 2018, DeLuca filed a motion to recuse Judge Amesbury on the basis of Rule 2.11 of the Pennsylvania Code of Judicial Conduct.⁵ The motion alleged that because Judge Amesbury would have to consider his own statements and actions during the settlement discussions, he was disqualified from conducting the hearing on the petition to enforce settlement agreement. Motion to Recuse at 4, ¶¶19-20; R.R. 153a.

At the October 30, 2018, hearing on DeLuca's recusal motion, the Authority objected to DeLuca's motion as untimely. DeLuca responded that her motion was timely because she had engaged new counsel, who needed to retrieve and review the files of prior counsel. The trial court postponed the hearing on the Authority's petition to enforce the settlement agreement.

On December 9, 2018, the trial court scheduled an evidentiary hearing on DeLuca's recusal motion for February 11, 2019. The parties agreed that the evidentiary hearing would address both DeLuca's recusal motion and the Authority's petition to enforce the settlement agreement.

At the evidentiary hearing, DeLuca testified that in September 2017, her attorney advised her that the trial court wanted to conduct "a combined pretrial/settlement conference in November" in her whistleblower/trespass action. N.T., 2/11/2019, at 25; R.R. 223a. In October 2017, he notified her that the conference had been scheduled for November 27, 2017, and that she should be prepared to discuss settlement. DeLuca testified that on that day, she was escorted into a room. Fifteen minutes later, Attorney Abell and Judge Amesbury entered the room. DeLuca testified as follows:

Dick Abell walked around in front of me, sat at a desk, put his feet up and locked his hands behind his head. Judge Amesbury grabbed a rolling chair, rolled it towards me, grabbed my hands, slid his knees between my skirt, screamed at the top of his lungs with his halitosis coffee breath.

Id. at 35; R.R. 226a. DeLuca stated that Judge Amesbury told her that she needed to take the Authority's offer "to get off his f[**]king dockets." Id . He told her that it was the "best deal" she was going to get. Id . When asked how she responded, DeLuca testified:

I was unaccepting of the $10,000, my job back and me throwing away the win offered by Judge Gartley [in the condemnation case].

Id. at 35-36; R.R. 226a.

DeLuca also testified that during the settlement conference, she contacted Paul Logan, Esq., an attorney who had previously worked with Attorney Abell in her dispute with the Authority. That conversation lasted approximately 30 minutes. DeLuca stated that Attorney Logan told her to "buckle down" and "get this done"; he also told her to contact her bank for the payoff amount for her house. Id. at 39; R.R. 227a.

DeLuca acknowledged that she stated on the record that she agreed to the settlement, but she could not explain...