Opinion

A.D. Brown v. S. Wise and S.K. White

Court
Commonwealth Court of Pennsylvania
Filed
Aug 25, 2017
Status
Unpublished
On the bench
Simpson, J.
Cited by
0 cases

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown, :

Appellant :

: No. 1939 C.D. 2016

v. : Submitted: June 9, 2017

:

Sherry Wise, and Susan K. White :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: August 25, 2017

Alton Brown (Appellant), a well-known inmate at the State

Correctional Institution at Greene who is representing himself, appeals an April 25,

2016 order entered in the Court of Common Pleas of Greene County (trial court)

that denied Appellant’s Motion for Reconsideration/Recusal and dismissed the

underlying civil action. Subsequent to Appellant’s appeal, and while the matter

remained in the trial court, the trial court entered a sua sponte order filed July 1,

2016, which, citing Canons 2.11, 3.13, and 3.15 of the Code of Judicial Conduct,

disqualified itself and ordered that “all current and future matters regarding this

case shall thereafter be automatically referred to the Office of Court Administrator

for assignment, and reassignment.” (Disqualification Order) Certified Record

(C.R.), Item #13. Given the lack of explanation for the denial of recusal and the

subsequent entry of the Disqualification Order, we vacate the trial court’s April 25,

2016 order and remand for reconsideration.

This matter began when Appellant sought mandamus relief against the

Prothonotary and Criminal Clerk of the trial court, essentially alleging that the

court officials were barring his access to the trial court and were not responsive to

his contacts. As part of the initial filing, Appellant sought leave to proceed in

forma pauperis, without payment of costs. The President Judge of the trial court

denied in forma pauperis status. Appellant filed a motion for reconsideration. On

March 9, 2016, the President Judge of the trial court denied in forma pauperis

status again and directed Appellant to tender $96.00 in court fees within 30 days of

service of the opinion and order or face dismissal of his underlying action.

Appellant filed a timely “Motion for Reconsideration of Order of

March 9, 2016: And, Recusal.” C.R., Item #17. In response, the President Judge

of the trial court entered the Order of April 25, 2016, which is the subject of the

current appeal. In the order, the trial court explained that court records failed to

reveal payment of court costs by Appellant. Accordingly, the trial court ordered:

“[T]he [Appellant’s] Motion for Reconsideration of Order of March 9, 2016 and

Recusal is DENIED, and the [Appellant’s] complaint is DISMISSED in its

entirety.” C.R., Item #16. There was no discussion addressing the recusal portion

of the order.

Together with his appeal from the Order of April 25, 2016, Appellant

sought leave to appeal in forma pauperis. C.R., Item #14. While that application

was pending, the President Judge of the trial court entered the Disqualification

Order, filed July 1, 2016. The same day, a second judge denied Appellant’s

2

application to appeal in forma pauperis. However, by order of November 9, 2016,

the second judge granted Appellant’s application to appeal in forma pauperis.

In response to Appellant’s statement of errors complained of on

appeal, the second judge entered an Opinion Pursuant to Pa. R.A.P. 1925, and

stated that “the reasons for this Court’s April 25, 2016 Order appear of record and

[the Court] Directs the Prothonotary to transmit the record accordingly.” C.R.,

Item #6. The opinion did not expressly address the recusal portion of the April 25,

2016 Order, and it did not reference the Disqualification Order at all.

Whether or not there is merit in the current appeal or in the underlying

mandamus action, there is at least an ambiguity about the manner in which the trial

court handled the recusal portion of the Reconsideration/Recusal Motion. Until

there is more clarity about the reasons for denying recusal and then granting

disqualification sua sponte, the dismissal of the underlying action cannot stand.

Accordingly, we vacate the Order of April 25, 2016, and we remand to the trial

court for reconsideration of the Motion for Reconsideration/Recusal and a more

complete explanation of whatever disposition the court enters.

ROBERT SIMPSON, Judge

Judge Cosgrove did not participate in the decision in this case.

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown, :

Appellant :

: No. 1939 C.D. 2016

v. :

:

Sherry Wise, and Susan K. White :

ORDER

AND NOW, this 25th day of August, 2017, the Order of the Court of

Common Pleas of Greene County, dated April 25, 2016 in the above-captioned

matter is VACATED, and the matter is REMANDED for reconsideration

consistent with the foregoing opinion. Jurisdiction is relinquished.

ROBERT SIMPSON, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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