In Re: 4 PA. Skill Amusement Appeal of: Com of Pa. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: FOUR PENNSYLVANIA SKILL : IN THE SUPERIOR COURT OF
AMUSEMENT DEVICES AND ONE : PENNSYLVANIA
TICKET REDEMPTION TERMINAL :
CONTAINING $18,692 IN U.S. :
CURRENCY :
:
:
APPEAL OF: COMMONWEALTH OF :
PENNSYLVANIA : No. 1218 EDA 2022
Appeal from the Order Dated May 16, 2022
In the Court of Common Pleas of Monroe County Civil Division at No(s):
6673 CV 2021
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 24, 2023
The Commonwealth appeals from the order entered in the Court of
Common Pleas of Monroe County (trial court) denying its motion for recusal.
We quash the appeal.
I.
A.
On October 28, 2021, the Commonwealth executed a search warrant
and seized four Pennsylvania Skill Amusement devices, one ticket redemption
terminal and approximately $18,692 (collectively, the “Property”) from
Smokin’ Joe’s Tobacco Shop as part of an ongoing criminal investigation into
possible illegal gambling activity. L&M Music owns the amusement devices
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* Retired Senior Judge assigned to the Superior Court.
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and ticket redemption terminal. Smokin’ Joe’s Tobacco Shop has a possessory
interest in them.
On November 24, 2021, L&M Music and Smokin’ Joe’s Tobacco Shop
(collectively, the “Petitioners”) commenced this action by filing an Omnibus
Petition to Return Seized Property1 to Suppress Evidence and to Unseal Search
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1 Pa. R. Crim. P. 588 governs the return of seized property. It provides:
(A) A person aggrieved by a search and seizure, whether or not
executed pursuant to a warrant, may move for the return of the
property on the ground that he or she is entitled to lawful
possession thereof. Such motion shall be filed in the court of
common pleas for the judicial district in which the property was
seized.
(B) The judge hearing such motion shall receive evidence on any
issue of fact necessary to the decision thereon. If the motion is
granted, the property shall be restored unless the court
determines that such property is contraband, in which case the
court may order the property to be forfeited.
(C) A motion to suppress evidence under Rule 581 may be joined
with a motion under this rule.
Comment: A motion for the return of property should not be
confused with a motion for the suppression of evidence, governed
by Rule 581. However, if the time and effect of a motion brought
under the instant rule would be, in the view of the judge hearing
the motion, substantially the same as a motion for suppression of
evidence, the judge may dispose of the motion in accordance with
Rule 581.
Pa.R.Crim.P. 588.
Under this rule, on any motion for return of property, the
moving party must establish by a preponderance of the evidence
entitlement to lawful possession. Once that is established, unless
(Footnote Continued Next Page)
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there is countervailing evidence to defeat the claim, the moving
party is entitled to the return of the identified property. A claim
for return of property can be defeated in two ways: an opposing
party can establish that it, not the moving party, is entitled to
lawful possession to the property or the Commonwealth can seek
forfeiture claiming that property for which return is sought is
derivative contraband.
Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010), appeal
denied, 19 A.3d 1050 (Pa. 2011) (internal citations omitted). Because there
is no common law civil forfeiture, civil forfeiture of derivative contraband
requires statutory authorization. See Commonwealth v. Irland, 193 A.3d
370, 382 (Pa. 2018).
Not mentioned in Irland because that case began before its enactment or the
parties in this case, is 42 Pa.C.S. § 5806, contained in the Forfeiture Act, which
now appears to govern motions for return of property. It provides:
(a) Motion.—The following shall apply:
(1) A person aggrieved by a search and seizure may move
for the return of the property seized by filing a motion in the court
of common pleas in the judicial district where the property is
located.
(2) The filer under paragraph (1) must serve the
Commonwealth.
(3) Upon proof of service, the court shall schedule a prompt
hearing on the motion and shall notify the Commonwealth. A
hearing on the motion shall, to the extent practicable and
consistent with the interests of justice, be held within 30 days of
the filing of the motion.
(4) The assigned judge may require the filing of an answer.
(5) If a forfeiture petition was filed by the Commonwealth
before the filing of a motion for return of property, the motion
shall be assigned to the same judge for disposition, as practicable.
(b) Contents of motion.—A motion under this section shall:
(Footnote Continued Next Page)
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Warrant. The court issued a Rule on the Commonwealth as to why the petition
should not be granted, returnable for answer and hearing on December 16,
2021.
In response, the Commonwealth filed a Motion to Continue the Return
of Property Matter and Strike the Omnibus Petition in which it advised, in
pertinent part, that the Property was seized as part of an active criminal
investigation for which criminal charges had not yet been filed, so any
consideration of the Property’s return was premature. (See Commonwealth’s
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(1) Be signed by the petitioner under penalty of perjury.
(2) Describe the nature and extent of the petitioner’s right,
title or interest in the property, the time and circumstances of the
petitioner’s acquisition of the right, title or interest in the property
and any additional facts supporting the petitioner’s claim. The
information shall include:
(i) A description of the property seized.
(ii) A statement of the time and place where seized, if
known.
(iii) The owner, if known.
(iv) The person in possession, if known.
(3) Identify the relief sought, which may include:
(i) Return of the petitioner’s property.
(ii) Reimbursement for the petitioner’s legal interest in the
property.
(iii) Severance of the petitioner’s property from the forfeited
property.
(iv) Any relief the court deems appropriate and just.
42 Pa.C.S. § 5806.
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Motion, 12/09/21, at ¶¶ 14(b), 18). The Commonwealth explained that
Criminal “Rule 581(B-C) does not permit this court to consider petitioners’
premature petition to suppress evidence or hold a suppression hearing prior
to criminal charges being filed.” (Id. at ¶¶ 36-37).2
On December 27, 2021, pursuant to the Commonwealth’s request, the
trial court continued the hearing until March 2022. In the intervening three
months, the parties filed several motions, including Petitioners’ motions for
discovery, one of which contained, in pertinent part, a reference to the text of
the sealed search warrant. (See Discovery Motion, 3/03/22, at ¶ 12). The
Commonwealth filed a motion to dismiss the discovery motions, noting, in
part, that Petitioners’ reference to the sealed search warrant indicates that
they improperly possess the sealed warrant, which the Commonwealth was
investigating. (See Commonwealth’s Motion to Dismiss, 3/07/22, at ¶¶ 30-
31). After the court issued a Rule Returnable for the March 24, 2022 hearing,
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2 Pa. R. Crim. P. 581(B), (C) provides that:
(B) Unless the opportunity did not previously exist, or the interests
of justice otherwise require, such motion shall be made only after
a case has been returned to court and shall be contained in the
omnibus pretrial motion set forth in Rule 578. If timely motion is
not made hereunder, the issue of suppression of such evidence
shall be deemed to be waived.
(C) Such motion shall be made to the court of the county in which
the prosecution is pending.
Pa.R.Crim.P. 581(B), (C).
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Petitioners withdrew their discovery motions by praecipe. (Petitioners’
Praecipe to Withdraw Motion for Discovery, 3/21/22). The Commonwealth
filed Motions to Exclude Irrelevant and Extraneous Material in which it
observed that the withdrawal of the discovery motions would result in
Petitioners not having to explain how they possessed the sealed search
warrant. (See Commonwealth’s Motions to Exclude Irrelevant and Extraneous
Material, 3/21/22, at ¶¶ 9-10, 26).
B.
At the March 24, 2022 hearing,3 the trial court observed that this case
is in a unique procedural posture because the Omnibus Petition was filed to a
civil docket number, using Rules of Criminal Procedure return of property law
at Rules 581 (suppression of evidence) and 588 (motion for return of
property). (See N.T., 3/24/22, at 19). The court explained:
During [the March 24, 2022] hearing, I made known to counsel
that I believed that forfeiture proceedings were the procedurally
proper vehicle in which to adjudicate whether the [Property]
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3 At the beginning of the March 24, 2022 proceedings, the court expressed
concern and frustration with Petitioners’ counsel about their possession of the
sealed warrant and supporting affidavit. (See N.T., 3/24/22, at 11) (“I need
to take a pause because I’m going to blow a gasket. Gentlemen, none of you
should have access to that warrant, period, end of story.”); (see id. at 12).
In its opinion, the court notes that it later learned the Commonwealth
misidentified the warrant in one of the motions to extend the sealing of it,
resulting in the sealing of a different warrant. (See Trial Ct. Op., at 2 n.1).
Although the warrant was later sealed again by a subsequent motion, it was
unsealed for a period without the Commonwealth’s knowledge. It was during
this lapse that Petitioners’ counsel obtained a copy from the Prothonotary.
(See id.).
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should be returned to the [Petitioners] or forfeited to the
Commonwealth. I also made known to counsel my concern over
[Petitioners]’ due process rights as their property had been seized
5 months earlier, yet the Commonwealth had not commenced
forfeiture or criminal proceedings—despite the Commonwealth’s
repeated representation that the [Property is] illegal per se.
(Trial Court Opinion, 7/11/22, at 3); (see also N.T., 3/24/22, at 20 (asking if
Commonwealth intended to file criminal charges); 24-25 (questioning the
fairness of seizure without further action); 26-27, 35-38 (questioning
Commonwealth about forfeiture proceeding); 42-43 (denying counsel’s
request to submit authority)).
At the conclusion of the hearing, the court entered an order4 that
dismissed the Omnibus Petition for Return of Property and to Suppress
Evidence but also ordered the Commonwealth to return the money it had
seized. (See Order, 3/24/22). The order directed the Commonwealth to
comply with its forfeiture obligations pursuant to 18 Pa.C.S. § 5513(b)
(Confiscation of Gambling Devices),5 ordered the parties to submit briefs on
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4 The Commonwealth did not seek to appeal the order to return the money,
electing to file the stay instead. In the meantime, although it since returned
the money, it was with the understanding that the Petitioners “shall return the
funds and any interest thereon to the Commonwealth in the event of the
Commonwealth’s successful forfeiture of the four gaming devices at issue.”
(Order, 3/24/22, at ¶ 6).
5 18 Pa.C.S. § 5513(b) provides: “Confiscation of gambling devices.—Any
gambling device possessed or used in violation of the provisions of subsection
(a) shall be seized and forfeited to the Commonwealth. The forfeiture shall
be conducted in accordance with 42 Pa.C.S. §§ 5803 (relating to asset
forfeiture), 5805 (relating to forfeiture procedure), 5806 (relating to motion
(Footnote Continued Next Page)
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the forfeiture issue, dismissed the Commonwealth’s Motions to Strike and to
Exclude Irrelevant Information, and scheduled a June 15, 2022 status
conference. (See id.); (see also Trial Ct. Op., at 3).
After the parties submitted briefs, the court issued a Rule on the
Commonwealth to show cause why it should not be required to file a petition
for forfeiture pursuant to 18 Pa.C.S. § 5513(b) and scheduled a hearing on
the issue for April 27, 2022.
C.
On Friday, April 22, 2022, the Commonwealth filed an answer to the
Rule in which it stated that criminal charges had been filed on April 20, 2022,
under Section 5513 of the Crimes Code. It did not file a separate motion for
stay but maintained that a stay of the March 24, 2022 order was “necessary
in light of the active criminal prosecution that will be followed by forfeiture”
pursuant to the Rules of Criminal Procedure. (Commonwealth’s Answer,
4/22/22, at ¶ 10); (see id. at ¶ 68) (requesting stay of the return of evidence
until the conclusion of the criminal prosecution).
The Commonwealth again stated, inter alia, that the Petitioners are
failing to follow the Criminal Rules of Procedure by attempting to litigate
suppression and discovery issues, and that due process is provided by Criminal
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for return of property), 5807 (relating to restrictions on use), 5807.1 (relating
to prohibition on adoptive seizures) and 5808 (relating to exceptions).
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Rule 588 (motion for return of property), which provides the mechanism to
challenge seizures. (See id. at ¶¶ 12-19). Further, the Commonwealth noted
that its insistence on holding an evidentiary hearing before any such
premature forfeiture is procedurally proper. (See id. at ¶ 32).
At the commencement of the April 27, 2022 hearing, the trial court
discussed the cases cited by the parties in their respective briefs and advised
that it still believed this case was a proper forfeiture matter, and that the
gaming machines should be returned because, if they are illegal, per se, no
further investigation of them was necessary. (See N.T., 4/27/22, at 2-7).
Specifically, the court stated:
The Commonwealth has consistently said [the gaming devices]
are per se illegal, and yet they have sought the extension of
search warrants, and they make bold allegations that it’s an
ongoing investigation; there’s an ongoing investigation. If it’s per
se illegal and you were ready and begging this [c]ourt to go to
hearing on a return of property petition, I don’t understand what
further investigation regarding these devices there is.
(Id. at 6). When the Commonwealth advised the court that criminal charges
had been recently filed against the Petitioners and the device manufacturer
on April 20, 2022, the court responded:
I was wondering if that was coming because for whatever reason
you don’t want to engage in discovery under the civil forfeiture
rules, so I was wondering whether this rule was going to force you
to do that, and my guess is that’s what prompted you to do it
because you kept telling me you needed to investigate. And now
all of the sudden—and I just—be careful. Your word and your
integrity is the one thing you can’t get back when you lose because
you kept telling me ongoing investigation. How much
investigation was there that occurred with respect to these
machines? And I don’t want to know anything confidential. But
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look me square in the eye as an officer of this court and tell me
there was additional investigation relative to this case between
the time that you kept pleading with me that there was ongoing
investigation and the filing of these charges.
(N.T., 4/27/22, at 8); (see id. at 7, 9). The assistant district attorney (ADA)
assured the court that continued investigation had been conducted before
filing the criminal charges, despite the gaming machines being illegal per se.
(See id. at 9-10).
When the court learned the Commonwealth had not returned the seized
cash as ordered, (see id. at 16), it:
was flabbergasted that a lawyer would not comply with my order
in a timely manner. Admittedly, I was stern and frustrated by the
Commonwealth’s inaction.
Assistant District Attorney Andrew Throckmorton, who had
represented the Commonwealth at all proceedings, repeatedly
requested to make a record on the issue of the Commonwealth’s
not returning the seized cash. I advised that I would issue a rule
and schedule a hearing at a later date on his request, and that he
should not ask again. He continued to ask to build the record on
the issue 13 times. After the 10th request, counsel for
[Petitioners] objected to Attorney Throckmorton’s behavior as
being in criminal contempt of court. Attorney Throckmorton
proceeded to ask three more times, at which point I directed a
deputy to escort him from the Courtroom. The proceedings ended
shortly thereafter.
At the conclusion of the hearing, I issued an order: 1)
reinstating [Petitioners]’ Petition for Return of Seized Property and
to Suppress Evidence; 2) dismissing [Petitioners]’ Petition to
Unseal Search Warrant as moot; and 3) scheduling a hearing on
the Petition for May 16, 2022. I also issued a rule … upon Attorney
Throckmorton to show cause why he should not be held in direct
contempt of court and indirect contempt, with hearing also
scheduled for May 16, 2022.
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(Trial Ct. Op., at 5); (see also N.T., 4/27/22, at 17 (court stating, “now you
have ticked me off … Are court orders just discretionary to our District
Attorney’s Office?”), 18 (“You violated my Order for a month before you had
the brains to file something with the Court. … You do not ... get to willy-nilly
choose when and if you are going to follow a Court Order.”), 20 (“I am
disgusted. I am disgusted. … Now I have to decide what to do … because I
have an officer of the court who was given a Court Order and knowingly,
knowingly violated it and did nothing for a month.)).
Thereafter, Petitioners’ counsel requested that since criminal charges
had been filed, the petition for return of property and to suppress the evidence
be “treat[ed] as refiled under the criminal docket.” (N.T., 4/27/22, at 20).
However, they did not withdraw their motion and re-file it at the criminal
docket number and the court did not dismiss it to be re-filed.
D.
On May 11, 2022, the Commonwealth filed the subject Motion for
Recusal, in which it claimed that that the court’s actions at the March 24, 2022
and April 27, 2022 hearings supported recusal. Specifically, the
Commonwealth claimed that at the March 24, 2022 hearing, the court
impermissibly questioned the Commonwealth’s prosecutorial discretion, the
fairness of the proceedings, interrupted counsel’s attempts to respond and to
build a record or submit authority. (See Commonwealth’s Motion for Recusal,
5/11/22, at ¶ 4) (citing N.T., 3/24/22, at 20, 24-27, 35-38, 42-43). The
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Commonwealth maintained that at the April 27, 2022 hearing, the trial court
criticized the Commonwealth’s use of prosecutorial discretion, questioned the
Commonwealth’s criminal investigation and motive in filing criminal charges,
and accused the Commonwealth of willfully violating its order to return the
seized money and stating that it would have “respected” an appeal filed two
days after the entry of the March 24, 2022 order. (Id. at ¶ 5) (citing N.T.,
4/27/22, at 6, 8, 9, 10, 11, 17-20).
The motion went on to aver that the trial judge’s failure to recognize
that a party has 30 days to file an appeal or to comply with a court order6
“shows a lack of awareness of the law or a disregard of same,” the court’s
repeated interruptions and refusal to allow the Commonwealth to make a
record was not in keeping with the Code of Civility, and the “court’s use of a
loud voice and angry tone[,] overall intemperate conduct in addressing the
attorney for the Commonwealth [and its conduct in scheduling contempt
proceedings against the Commonwealth’s attorney] show bias, prejudice or
unfairness, and is not in keeping with the Code of Civility … and require
recusal.” (Id. at ¶ 6).7
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6 The Commonwealth cites no authority that an order does not have to be
followed until the appealed period has lapsed. We are aware of no such
authority.
7 The Pennsylvania Code of Civility provides, in pertinent part, that:
(Footnote Continued Next Page)
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In response, the Petitioners argued in part that the recusal issue was
waived for the Commonwealth’s failure to bring the motion at the earliest
possible time that a basis was known, and that it should be dismissed for the
Commonwealth’s failure to seek their concurrence pursuant to Monroe County
Rule of Civil Procedure 208.2(d).8 (See Petitioners’ Response in Opposition
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1. A judge must maintain control of the proceedings and has an
obligation to ensure that proceedings are conducted in a civil
manner.
2. A judge should show respect, courtesy and patience to the
lawyers, parties and all participants in the legal process by
treating all with civility.
* * *
6. A judge should not employ hostile or demeaning words in
opinions or in written or oral communications with lawyers, parties
or witnesses.
* * *
10. A judge should allow the lawyers to present proper arguments
and to make a complete and accurate record.
11. A judge should not impugn the integrity or professionalism of
any lawyer on the basis of the clients whom or the causes which
he or she represents.
204 Pa. Code § 99.2(1), (2), (6), (10), (11); (see Motion for Recusal, at
¶ 6(e)).
8Pursuant to Monroe Co.R.C.P. 208.2(d)(1), (3), “[a]ll motions … shall contain
a certification by counsel for the moving party that concurrence in the motion
has been sought from all opposing counsel and that such concurrence has
been granted or denied. … Failure to comply with this provision shall constitute
(Footnote Continued Next Page)
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to Motion to Recuse, 5/12/22, at 2) (pagination provided). It maintained that
“[u]nder the circumstances, what occurred is nothing more than the [c]ourt
disagreeing with the Commonwealth on the law, and then asking counsel to
justify decisions he made.” (Id.) (citation omitted).
E.
At the commencement of the May 16, 2022 hearing on the petition,9 the
court addressed the Motion for Recusal. It admitted it had been frustrated
with the case from the beginning when it learned the sealed search warrant
had been disclosed and the Commonwealth failed to return the seized money
as ordered. It apologized for allowing its frustration to show, but it denied the
Commonwealth’s recusal motion because it believed, after reflection and
review of the hearing transcripts, that recusal was unnecessary since it had
no bias or ill will toward any counsel and could be impartial and fair. (See
N.T., 5/16/22, at 3-5).
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sufficient grounds for the Court to deny the motion.” Monroe Co.R.C.P.
208.2(d)(1), (3).
9 The trial court had granted the Commonwealth’s motion to sever the petition
hearing from the contempt hearing and scheduled the contempt hearing for
May 20, 2022. Although the hearing was held after the appeal was taken and,
therefore, is not part of this appeal, we note for the sake of completeness that
at the contempt hearing, the direct contempt for repeatedly interrupting the
court to build a record was dismissed after counsel’s statement that he
understood the court’s position, the indirect contempt was dismissed after the
court learned that the Commonwealth had returned the money as ordered,
and the court again apologized for its previous behavior. (See N.T., 5/20/22,
at 5-10).
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The Commonwealth advised it was going to appeal the denial of the
recusal motion pursuant to Pennsylvania Rule of Appellate Procedure 311(d),
thus divesting the court of jurisdiction. (Id. at 5). Thereafter, Smokin’ Joe’s
counsel accused the Commonwealth of acting in bad faith based on his own
anecdotal story, and L&M Music’s attorney argued that as this was a civil
matter, Rule 311(d) was inapplicable. (See id. at 6-7). The court observed
that:
[M]y issue from the get go, [has been that] this was filed to a civil
docket, under the rules of criminal procedure, which then
[created] this quagmire [with] no playbook[.] … So technically,
this is now a return of property … with an underlying criminal
action, to which the rules of criminal procedure now apply.
(Id. at 9). L&M counsel responded, “Well, there’s no doubt about that[.]”
(Id.). However, after discussion with all counsel about the language of Rule
311(d), the court found that it was inapplicable to this matter because,
although the criminal rules guided the procedure of the return of property
matter, “the appellate rules for an interlocutory appeal apply only to the
criminal prosecution.” (Id. at 16). Having found that Rule 311(d) did not
divest it of jurisdiction, the court then addressed the other issues before it,
taking them under advisement.
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The same day, the Commonwealth filed a notice of appeal pursuant to
Rule 311(d) and Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985),10 and
a Praecipe for Entry of an Adverse Order Pursuant to Pa.R.A.P. 301,11 “since
this issue will either terminate or substantially handicap the prosecution of the
[Petitioners].” (Praecipe for Entry of Adverse Order, 5/16/22).12
The Commonwealth filed an application to stay the trial court
proceedings in this Court, which we granted on May 20, 2022. The only
proceedings mentioned in the application for stay was the return of property
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10 The Dugger Court held that a Commonwealth’s appeal of a pretrial order
is properly treated as an appeal from a final order if “the Commonwealth
certifies in good faith that the [] order terminates or substantially handicaps
its prosecution,” which was superseded by Pa.R.A.P. 311(d) in 1992. See
Commonwealth v. Dixon, 907 A.2d 468, 471 n.8 (Pa. 2006).
11 Pa.R.A.P. 301(e) Emergency appeals, provides:
Where the exigency of the case is such as to impel an immediate
appeal and the party intending to appeal an adverse action is
unable to secure the formal entry of an appealable order pursuant
to the usual procedures, the party may file in the trial court and
serve a praecipe for entry of an adverse order, which action shall
constitute entry of an appealable order for the purposes of these
rules. The interlocutory or final nature of the action shall not be
affected by this paragraph.
12 The only matter before us is the denial of the motion to recuse. At page 2
of its brief, the Commonwealth sets for the order in question from which the
appeal is taken as follows:
Appeal was perfected by means of a Praecipe for Adverse Order,
Pursuant to Pa. R.A.P. 301, with the submitted Order to be
appealed as follows: AND NOW, this 16th of May, 2022, the
Commonwealth’s Motion for Recusal is DENIED. By the Court:
Jennifer Harlacher Sibum, Judge.
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proceeding. Petitioners filed a motion to quash that we denied without
prejudice to the Petitioners’ right to raise the issue with the merits panel.13
On July 28, 2022, the Commonwealth filed a Motion to Modify the Record to
include the trial court reporter’s audio recording of the April 27, 2022
proceedings that this Court denied without prejudice to the Commonwealth
raising the issue with the assigned merits panel. On October 20, 2022, the
Commonwealth filed the motion for the panel’s consideration and it was denied
on October 24, 2022.
Because the return of the money seized is no longer at issue, the issue
before us is whether the trial judge is required to recuse herself from the
remaining matter involved - the return of the four devices seized that the
Commonwealth claims are illegal gambling devices.
II.
As a preliminary matter, we must address whether we have jurisdiction
to consider this interlocutory appeal. Generally, we can only address the
merits of an appeal taken from “(a) a final order or an order certified as a final
order; (2) an interlocutory order [appealable] as of right; (3) an interlocutory
order [appealable] by permission; or (4) a collateral order.” Commerce
Bank v. Kessler, 46 A.3d 724, 728 (Pa. Super. 2012), (quoting Stahl v.
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13Petitioners also filed a motion for clarification or reconsideration of our May
20, 2022 order and an emergency application to lift the stay. We denied both
requests per curiam.
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Redcay, 897 A.2d 478, 485 (Pa. Super. 2006)) (citations omitted); see also
Pa.R.A.P. 341(b). “As a general rule, only final orders are appealable, and
final orders are defined as orders disposing of all claims and all parties.” Am.
Indep. Ins. Co. v. E.S., 809 A.2d 388, 391 (Pa. Super. 2002); see also
Pa.R.A.P. 341(a) (“[A]n appeal may be taken as of right from any final order
of a government unit or trial court.”).
The Commonwealth argues that it can appeal the denial of its Motion to
Recuse under Pa.R.A.P. 311(d) as of right because Petitioners’ motion for
return of property is properly governed by the Rules of Criminal Procedure
where Petitioners improperly filed the petition, which involves evidence seized
as part of the criminal investigation at a civil docket number. The
Commonwealth claims that if the gambling devices are returned, it will
substantially handicap the prosecution of this matter, thus giving us
jurisdiction to hear this appeal pursuant to Rule 311(d). (See
Commonwealth’s Brief, at 22-23).14
Conversely, Petitioners claim that Rule 311(d) is inapplicable and we
lack jurisdiction because this is an interlocutory appeal of a civil matter. (See
Petitioners’ Brief, at 14).
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14 Although the Commonwealth mentions that it filed a Praecipe for Adverse
Order pursuant to Rule 301, it does not address the impact of such filing.
(See Commonwealth’s Brief, at 22). Moreover, we would not find this
dispositive where the Rule expressly states that the filing of a praecipe does
not affect the interlocutory or final nature of an order. See Pa.R.A.P. 301(e).
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Pa.R.A.P. 311(d) - Interlocutory appeals as of right, provides, in
pertinent part:
(d) Commonwealth appeals in criminal cases.—In a criminal
case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that
does not end the entire case where the Commonwealth certifies
in the notice of appeal that the order will terminate or
substantially handicap the prosecution.
Pa.R.A.P. 311(d) (emphasis added).
Regarding this Rule, in Commonwealth v. White, 910 A.2d 648 (Pa.
2006), the Pennsylvania Supreme Court observed that:
[although] we limit the application of Rule 311(d) to those
circumstances provided by law in which a pretrial ruling results in
the suppression, preclusion or exclusion of Commonwealth
evidence, [this] should not be read as undoing Rule 311(d), which
simply provides the Commonwealth may appeal an order, not just
certain types of orders, which terminates or substantially
handicaps the prosecution. This is the plain language of the
Rule[.] … Accordingly, when an order terminates or has the
practical effect of terminating some or all of the Commonwealth’s
case, or substantially handicaps the Commonwealth’s case, and
the Commonwealth has certified the same in good faith, the
Commonwealth is entitled to an interlocutory appeal as of right
under Rule 311(d).
Here, the Commonwealth has certified in good faith that denial of
its recusal motion will substantially handicap its prosecution of this
case. Indeed, if the judge is unable to preside and serve as fact-
finder impartially, and an unfair verdict is rendered, the
Commonwealth, unlike a criminal defendant in a similar
circumstance, has no appellate recourse. Thus, if there is a good
faith certificate that a pretrial ruling substantially hampers the
case of the party whose one job is to seek justice, and the only
possible time to appeal is before jeopardy attaches at trial, the
appeal should be allowed. Accordingly, we proceed to review the
merits of the recusal issue under Rule 311(d).
White, 910 A.2d at 654-55 (citations and quotation marks omitted).
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If this appeal involved a criminal matter where double jeopardy would
attach, like in White, we would find this reasoning persuasive.
However, while return of property motions are filed pursuant to Pa.
R.Crim.P. 588, a return of property motion is not criminal in nature. In
Irland, our Supreme Court held that this proceeding is civil in nature, stating:
[I]t is notable that Rule 588 permits a motion for return of
property to be decided at the same time as a motion for the
suppression of evidence, i.e., before trial. See Pa.R.Crim.P.
588(C). Thus, a forfeiture pursuant to Rule 588 may occur prior
to conviction and in the absence of a criminal conviction.
Accordingly, such forfeitures, although founded in a rule of
criminal procedure, must be denominated civil in nature, since a
criminal forfeiture is a criminal sanction resulting from the
conviction.
Irland, 193 A.3d at 379.15
____________________________________________
15 If this matter is considered civil for purposes of appeal, under Pa.R.A.P.
1736, the Commonwealth would receive an automatic supersedeas from any
order directing the return of property.
(a) General rule.—No security shall be required of:
(1) The Commonwealth or any officer thereof, acting in his
official capacity.
(2) Any political subdivision or any officer thereof, acting in
his official capacity, except in any case in which a common pleas
court has affirmed an arbitration award in a grievance or similar
personnel matter.
(3) A party acting in a representative capacity.
(4) A taxpayer appealing from a judgment entered in favor
of the Commonwealth upon an account duly settled when security
has already been given as required by law.
(Footnote Continued Next Page)
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Consequently, where the underlying matter is a civil matter or a criminal
matter not subject to double jeopardy, we have routinely held a pre-trial
motion seeking to recuse a judge from further proceedings is not a final order.
See In re Bridgeport Fire Litig., 51 A.3d 224, 229 (Pa. Super. 2012) (“an
order on a motion for recusal is an interlocutory order for purposes of an
appeal”); see also Rohm and Haas Co. v. Lin, 992 A.2d 132, 149 (Pa.
Super. 2010); Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super. 1999);
Hahalyak v. Integra Fin. Corp., 678 A.2d 819 (Pa. Super. 1996); Kenis v.
Perini Corp., 682 A.2d 845 (Pa. Super. 1996). Additionally, we have stated
that an appeal from the denial of a pre-trial motion to recuse does not fall
within any of the categories listed in Rules 311 (Interlocutory Appeals as of
Right) or 313 (Collateral Orders) of the Pennsylvania Rules of Appellate
Procedure. See Krieg, 743 A.2d at 511.
____________________________________________
(5) An appellant who has already filed security in a lower
court, conditioned as prescribed by these rules for the final
outcome of the appeal.
(b) Supersedeas automatic.—Unless otherwise ordered
pursuant to this chapter the taking of an appeal by any party
specified in Subdivision (a) of this rule shall operate as a
supersedeas in favor of such party, which supersedeas shall
continue through any proceedings in the United States Supreme
Court.
Pa.R.A.P. 1736 (emphasis added).
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In this case, the Commonwealth is seeking to recuse the trial judge from
considering whether to return the four gambling devices. If the trial judge
orders that the devices be returned, double jeopardy principles would not be
implicated and that decision could be appealed, including the trial judge’s
denial of the recusal motion.
Accordingly, the appeal from the denial of the recusal motion is from an
interlocutory order and is quashed.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2023
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