Judges Opinions Public Notices, — February 23, 2022 14:19 — 0 Comments

Public Notices, February 23, 2022

Volume 59, No. 30

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

NOTICE OF TRUST ADMINISTRATION

ORPHANS’ COURT DIVISION NOTICES

FICTITIOUS NAME

 

TABLE OF CONTENTS

Johnathan Bartol v. Robert Kime

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF DEAN A. HECK, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Connie M. Heck, Executor

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF EDITH J. MILLER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Chad L. Miller, Co-Executor

 

Linda Funk, Co-Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF MARY S. LEHMAN, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Wilmer H. Lehman, Co-Executor

1207 Schaeffer Road

Lebanon, PA 17042

 

Linda Jean Martin, Co-Executor

500 Old Staver Road

Reinholds, PA 17569

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF DOROTHY L. SPURIGO, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Laura T. Spurigo, Executrix

124 Michters Road

Newmanstown, PA 17073

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF MICHAEL Z. HORNING, late of Richland Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Marie W. Martin, Executrix

1018 Rabbit Hill Rd.

Lititz, PA 17543

 

  1. Douglas Good, Esquire

Good & Harris, LLP

132 W. Main St.

New Holland, PA 17557

 

ESTATE OF HARRY C. KOLOSKI a/k/a HARRY KOLOSKI, late of Quentin Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Linda M. Fircha & Jan T.R. Bathurst, Co-Executors

2525 Quentin Road, Box 1069

Quentin, PA 17042

 

Eugene P. Koloski, Co-Executors

2768 W. Seneca Turnpike

Marcellus, NY 13108

 

Attorney for the Estate

Zachary D. Morahan, Esq.

Coughlin & Gerhart, LLP

21-23 Public Avenue

Montrose, PA 18801

 

ESTATE OF CARL H. SPITLER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Shari A. Lewis, Executrix

533 Windsor Court

Hummelstown, PA 17036

 

David R. Warner Jr., Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF SHIRLEY M. SHAAK, A/K/A SHIRLEY MAE SHAAK, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Darlene DeHart Kidder, Executrix

4 Village Drive

Newmanstown, PA 17073

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF AMANDA F. LESHER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration, C.T.A., have been granted to the undersigned Administrator, C.T.A.

 

Raegan J. Lesher, Administrator, C.T.A

 

Samuel G. Weiss, Jr, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

Attorney

 

ESTATE OF EDWARD P. ROZNOWSKI, JR., late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Edward P. Roznowski III, Executor

340 E. Pershing Avenue

Lebanon, PA 17042

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD A. ZELLERS, late of Jonestown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

James E. Zellers, Administrator

1001 E. Maple Street

Lebanon, PA 17046

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ESTHER B. JORDAN, a/k/a ESTHER ALMEDA JORDAN, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Karen J. Sandoe, Co-Executor

801 Hilltop Road

Myerstown, PA 17067

 

Roberta J. Hoffert, Co-Executor

69 Sweet Birch Lane

Womelsdorf, PA 19567

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF GLENN E. SCHAEFFER a/k/a GLENN EUGENE SCHAEFFER, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Pearl L. Mead, Executor

421 Sunnyside Road

Newmanstown, PA 17073

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

SECOND PUBLICATION

 

ESTATE OF LORETTA J. PETERS, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Virginia L. Keppley, Executrix

861 Stracks Dam Road

Myerstown, PA 17067

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF CAROLE FAYE KOONS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Scott D. Koons, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF GLENN L. MOYER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia L. Vogelsong, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BETTY J. KLESS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Barbara A. Matteson, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JENNINGS A. HOPKINS, late of Jonestown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Brett A. Hopkins, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF CHRISTINE M. SHAY a/k/a CHRISTINE MARY SHAY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert Bruce Shay, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF NANCY L. TORRES, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jeffrey A. Miller, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF JAMES E. BALSBAUGH, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Danielle R. Short, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF KEVIN J. MIKELSON, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Jessica Sanders, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BARRY R. DAVIS, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Andrea M. Warner, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF MARY C. ROBERTS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Patricia J. Roberts, Executrix

 

Loreen M. Burkett, Esquire

Weiss Burkett, LLC

802 Walnut Street

Lebanon, PA 17042

Attorney

 

THIRD PUBLICATION

 

ESTATE OF HOWARD CALVIN RESSLER a/k/a HOWARD C. RESSLER, late of 1635 N. 8th Ave., Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kevin S. Kleinfelter, Executor

 

Kevin M. Dugan, Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF ANTHONY J. MILLER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Anthony J. Miller, Executor

48 Wheatland Cir

Lebanon, PA 17042

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF BETTY J. SATTAZAHN, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Michele Morris, Executrix

10512 Mountain Rd

Grantville, PA 17028

 

Scott L Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD A. DONMOYER, JR. a/k/a RIDHARD A. DONMOYER, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Mary K. Donmoyer, Executrix

711 Oak St.

Myerstown, PA 17067

 

Jason Schibinger, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MARIANNE L. GERNERT, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael A. Good, Executor

595 Sterling Drive

Red Lion, PA 17356

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226 W. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF DAVID B. GERNERT, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael A. Good, Executor

595 Sterling Drive

Red Lion, PA 17356

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226 W. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF HELEN CHAMBERS, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Brenda F. Chambers, Executrix

240 N. Lincoln St.

Palmyra, PA 17078

 

Peggy M. Morcom, Esquire

Morcom Law, LLC

226 W Chocolate Ave

Hershey, PA 17033

 

ESTATE OF RICHARD L. BORDNER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Ann Smith, Executrix

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF MARIAN L. BERGER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Danielle M. Weaver, Executrix

400 South College Street, Apt. 2

Myerstown, PA 17046

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF ANNA M. BAESHORE a/k/a ANNA MAE BAESHORE, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Charles A. Heim, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF CAROLYN M. HAUCK, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Dawn M. Neider, Co-Executor

10 Preston Road

Reinholds, PA 17569

 

Trina L. Brugger, Co-Executor

218 Fausnacht Drive

Denver, PA 17517

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF FLORENCE L. EMBREY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

John R. Embrey, Co-Executor

 

Julia M. Wagner, Co-Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF KATHARINE E. ELY, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Timothy D. Sheffey, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF JOE L. MAY, late of Jonestown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Melodie E. Favinger, Executor

169 Werner Road

Fredericksburg, PA 17026

 

Joe L. May, Jr., Executor

189 Cemetary Road

Jonestown, PA 17038

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

NOTICE OF TRUST ADMINISTRATION of the Beverly M. Fortran Living Trust dated 7/10/2001, as amended (the “Trust”), following the death of Beverly M. Fortran, late of Lebanon, Lebanon County, Pennsylvania on January 2, 2022 (the “Decedent”), is hereby given.

 

All persons having claims against the Decedent or Trust are requested to present them for settlement and all persons indebted to the Decedent or Trust are requested to make immediate payment to:

 

Ellis Lee Hostetter and Shirley Hostetter, Successor Death Co-Trustees

660 Wedgewood Drive,

Lebanon, PA 17042

 

Or to:

Edward P. Seeber, Esquire

JSDC Law Offices

11 East Chocolate Avenue, Suite 300

Hershey, PA 17033

(717) 533-3280

 

 

 

FICTITIOUS NAME

 

NOTICE IS HEREBY GIVEN, pursuant to the provisions of Act 295 of 1982 (54 Pa. C.S.A. 311), and its amendments, of the filing in the Office of the Secretary of the Commonwealth at Harrisburg, Pennsylvania, on the 10th day of November, 2021, of an Application for Registration of Fictitious Name.

 

The name, style or designation under which said business is being or will be carried on or conducted is Nazeeri Family Medicine and the location of its principal place of business is 1023 Poplar Street, Lebanon, PA 17042.

 

The name and address of the persons or entity owning or interested in said business is Musaddiq

  1. Nazeeri, M.D., P.C., 1023 Poplar Street, Lebanon, PA 17042.

 

JOHN E. FEATHER, JR., Esquire

FEATHER AND FEATHER, P.C.

22 West Main Street

Annville, PA 17003

717-867-1200

 

FICTITIOUS NAME

 

Pennsylvania Counseling Services, Inc. has filed for the following fictitious name with the Department of State: LiveUp Studios

 

Michelle Thompson

Director of Media

PA Counseling Services, Inc.

200 N 7th St.

Lebanon, PA 17042

 

 

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

 

Notice is hereby given that the following accounts in decedents estates, Guardianships and trusts

have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon

County, and that the same will be presented to the Court of Common Pleas-Orphans’ Court

Division of said County for Confirmation NISI on

 

Monday, February 4, 2022

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION

FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. Barthalow, Frances J., dec’d., Joseph P. Renik, Jr., Exr., George Christianson, Atty.
  2. Edris, Ruth K., dec’d., Nancy L. Chandler, Exrx., John M. Zimmerman, Atty.er

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed

ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are

filed within twenty (20) days after the same are confirmed NISI.

 

Brian Craig

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

 

 

JUDGE’S OPINION

 

Johnathan Bartol v. Robert Kime

 

Civil Action-Law-Sexual Offenses-Recusal-Effect of Guilty Plea in Criminal Action-Liability-Conclusive Effect of Guilty Plea

 

Johnathan Bartol (“Plaintiff”), who is the grandson of Robert Kime (“Defendant”), brought a civil action seeking recovery for Battery, Assault and Intentional Infliction of Emotional Distress after Defendant pled guilty to sexual offenses of which Plaintiff was the victim.  The Court granted a Motion for Summary Judgment lodged by Plaintiff based upon Defendant’s guilty plea in the criminal action on the basis that all of the elements necessary to establish the civil causes of action for Battery and Assault conclusively had been proven by virtue of entry of Defendant’s guilty plea.  Defendant filed a Motion for Recusal based upon the fact that the sentencing judge in the criminal case is the judge presiding over the civil action and Reconsideration regarding the fact that the Court granted Plaintiff’s Motion for Summary Judgment in light of his guilty plea to the crimes.

 

  1. Recusal is a matter of individual discretion and conscience on the part of the judge who is involved.

 

  1. Recusal generally is unwarranted unless there is a showing of specific pre-judgment bias or if the judge has a direct, personal, substantial or pecuniary interest in the case.

 

  1. A party seeking recusal must raise the objection at the earliest opportunity.

 

  1. Participation by a presiding judge in an earlier proceeding involving a party neither suggests the existence of actual impropriety nor provides a basis for a finding of impropriety.

 

  1. Defendant’s Motion for Recusal is untimely in light of the fact that Defendant did not request recusal when the judge presided over an earlier Motion for Summary Judgment without objection from Defendant.

 

  1. Where the sentencing judge in imposing sentence comported with the terms of the guilty plea that Defendant asked the Court to imposed, followed Pennsylvania law in ruling upon the Motion for Summary Judgment and does not know any of the parties or have a pecuniary interest in the outcome of the case, recusal of the presiding jurist is not warranted.

 

  1. If underlying criminal convictions necessarily require proof of every element of a civil cause of action, the underlying criminal conviction, through guilt after trial or guilty plea, conclusively may be used to prove an entire civil cause of action.

 

  1. Since the crimes to which Defendant pled guilty prove all of the actus reus of the civil causes of action, the Court appropriately granted Plaintiff’s Motion for Summary Judgment.

 

L.C.C.C.P. No. 2020-01178, Opinion by Bradford H. Charles, Judge, August 24, 2021.

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUTY, PENNSYLVANIA

 

CIVIL ACTION­ – LAW

 

JOHNATHAN BARTOL                            :

:           No. 2020-01178

  1. :

:

ROBERT KIME                                                       :

 

ORDER OF COURT

AND NOW, this 24th day of August, 2021, upon review of the entire file and in accordance with the attached Opinion, it is hereby ordered the Defendant’s Motion for Reconsideration and Recusal is DENIED. A copy of this order is to be served upon the PLAINTIFF, the PLAINTIFF’s attorney, the DEFENDANT’s attorney, and the DEFENDANT by certified mail, return receipt requested.

BY THE COURT:

___________________________J.

                                                            BRADFORD H. CHARLES

cc: Peter J. Russo, Esquire// 245 Grandview Avenue, Suite 102, Camp Hill PA 17011

Andrew J. Race, Esquire// 1601 Cornwall Road, Lebanon PA 17042

Robert Kime NV-9357// SCI Coal Township, 1 Kelley Drive, Coal Township, PA 17866-1020 (certified mail, return receipt requested)

Court Administration

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUTY, PENNSYLVANIA

 

CIVIL ACTION­ – LAW

 

JOHNATHAN BARTOL                            :

:           No. 2020-01178

  1. :

:

ROBERT KIME                                                       :

 

APPEARANCES

 

Peter J. Russo, Esquire                                             For Johnathan BARTOL

LAW OFFICES OF PETER J. RUSSO, P.C.

 

Andrew J. Race, Esquire                                          For Robert KIME

REILLY WOLFSON

 

OPINION BY CHARLES, J. August 24, 2021

 

Plaintiff, Johnathan Bartol (hereafter BARTOL), is the 28 year-old grandson of Defendant, Robert Kime (hereafter KIME). BARTOL alleges that KIME systematically abused him over a 10-year period starting when BARTOL was 6 years old. These allegations were reported to the Pennsylvania State Police in 2018. KIME was convicted by guilty plea of Involuntary Deviate Sexual Intercourse with a person less than 16 years of age, Sexual Assault, Endangering the Welfare of a Minor, Corruption of Minors, Indecent Assault of a person less than 13 years of age, Indecent Assault of a person less than 16 years of age, and Indecent Assault without the consent of others.

On October 9, 2020, BARTOL sued KIME for Battery, Assault, and Intentional Infliction of Emotional Distress. Relying upon KIME’s guilty plea, BARTOL moved for summary judgment as to the Battery and Assault claims and partial summary judgment as to the Intentional Infliction of Emotional Distress claim. On June 21 2021, we granted BARTOL’s Motion for Summary Judgment. On July 30, 2021, KIME filed a Motion for Reconsideration and Recusal. We conclude, for the reasons articulated below, that KIME’s motion should be denied.

 

  1. DISCUSSION
  2. Recusal

In his motion, the Defendant argues that this jurist should recuse himself because “of errors on the cited caselaw [within the original Opinion granting Summary Judgment]”, and because he was the Defendant’s Criminal Sentencing Judge and had articulated at the Sentencing Hearing that he was “offended” by the Defendant’s conduct.  The Defendant claims that the comments made by this jurist at his Sentencing proceeding established that he could not be fair as it relates to the pending civil litigation.

Recusal is a matter of individual discretion and conscience on the part of the judge who is involved.  Commonwealth v. Jones, 663 A.2d 142 (Pa. 1995).  Recusal of a judge is generally unwarranted unless there is a showing of specific pre-judgment or bias or if the judge has a direct, personal, substantial or pecuniary interest in the case.  Commonwealth v. Jones, supra.  A party seeking recusal is required to raise the objection at the earlies possible moment.  In RE: Lokuta, 11 A.3d 427 (Pa. 2011).  The party seeking recusal bears the burden of producing evidence establishing bias, prejudice or unfairness necessitating recusal.  Commonwealth v. Thomas, 44 A.3d 12 (Pa. 2012).  Participation by a presiding judge in an earlier proceeding involving a party neither suggests the existence of actual impropriety nor provides a basis for finding of impropriety.  Commonwealth v. Boyle, 447 A.2d 250 (Pa. 1982).

In this case, the undersigned sentenced the Defendant on May 8, 2019.  The sentence imposed comported with a plea agreement that the Defendant himself asked the Court to accept.  The Sentencing Order of this jurist contained findings, and it important to provide context that the entirety of these findings are noted.  They are:

  1. The Defendant is a 76-year-old man who is before this Court for sexually assaulting two younger family members.
  2. The Defendant has a Master’s degree, and developed a career that would be the envy of most individuals. At one point he served as a human relations director for a company that employed 20,000 people.
  3. Between 2002 and 2008, the Defendant sexually abused a grandson. That sexual abuse involved the worst type of conduct imaginable.
  4. It was not until 2018 that the Defendant’s conduct came to light when another grandson accused him of sexual misconduct.
  5. The victims have provided poignant testimony about how their lives were impacted by the Defendant’s behavior. The impact of the Defendant’s behavior has effectively destroyed the victims’ ability to trust others.  The victims reported that they adored their grandfather, and he betrayed their feelings, thus rendering it difficult for them to have meaningful relationships with others.
  6. The Defendant is now a pariah within his own family. His marriage of 52 years is ended, as is his relationship with all of his family.  However, to his credit, the Defendant does maintain support of friends with whom he associated during his life and during his career until he destroyed it.
  7. We must consider all of the good that the Defendant did throughout the course of his life. We must also consider the fact that the Defendant has no prior criminal record.  However, we cannot depreciate the seriousness of his conduct or its impact upon the victims.
  8. There is a plea agreement that caps the Defendant’s sentence at 5 to 10 years. The Defendant has requested a sentence of 2 to 4 years. It is up to the Court where the sentence must fall within this continuum.
  9. We will place primary consideration upon the impact of the Defendant’s conduct on the victims of this offense. In many ways the victims will always have an emotional sentence as a result of what the Defendant did over a period of years.  However, we cannot completely ignore the positive information about the Defendant that was also provided.

When Plaintiff filed his civil case, it was randomly assigned to this jurist.  When the Motion for Summary Judgment was filed by Plaintiff, this jurist issued an Opinion dated June 21, 2021.  It was not until after this Opinion was filed that the Defendant sought to have this jurist recused.  In other words, the Recusal Motion did not arrive until after the Defendant perceived that this jurist disagreed with his legal position.  We do not view such a post-decision motion as timely.  In fact, it strikes this Court as a thinly-veiled tactic to challenge a decision with which the Defendant disagrees.

Even if the Recusal Motion is deemed to be timely, it is without merit.  Our Opinion of June 21, 2021 cited extensive legal precedent in support of our decision that the Defendant’s guilty plea effectively estopped him from denying allegations of sexual abuse upon which the Civil Complaint was predicated.  The Defendant perceived that our decision was predicated upon some sort of bias or prejudice against him.  It was not.  The Opinion we entered was predicated upon our evaluation of Pennsylvania law.  Even after we read and considered the additional legal precedent that the Defendant included in his Motion for Reconsideration, we still believe that our initial decision to grant Plaintiff’s Motion for Summary Judgment was a correct one.  Stated simply, our decision to grant Plaintiff’s Motion for Summary Judgment was predicated upon our analysis of Pennsylvania law.  Nothing more.  Nothing less.

When we sentenced the Defendant, we cited the horrific conduct that he admitted.  However, we also cited “all of the good that the Defendant did throughout the course of his life.”  In the end, we sentenced the Defendant to serve a period of incarceration of four and one-half (4 ½) to ten (10) years.  This sentence was within the range provided by the parties’ plea agreement.  It was not even at the very top of that range.  Nothing about the way this jurist handled the Defendant’s sentencing can, should, or does impugn the integrity of the manner in which this jurist has handled the civil litigation filed by Plaintiff herein.

Prior to the Defendant’s criminal proceedings, this jurist did not know either him or any members of his family, including Johnathon Bartol.  This jurist has no pecuniary interest in the outcome of the civil trial.  Moreover, we analyzed Pennsylvania law in good faith regarding Mr. Bartol’s Motion for Summary Judgment, and we still are convinced that we rendered a correct and appropriate decision based upon Pennsylvania law.  For all of the above reasons, the Defendant’s Motion for Recusal will be denied.

 

  1. Reconsideration

Our previous decision granting summary judgment rested upon the notion that a guilty plea carries preclusive effect for the purpose of offensive collateral estoppel. KIME has challenged that notion.

Generally a plea of collateral estoppel requires the following to be met:

  • “the issue decided in the prior adjudication was identical with the one presented in the later action,”
  • “there was a final judgment on the merits,”
  • “the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication,”
  • “the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.”

Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996) (quoting Safeguard Mut. Ins. Co. v. Williams, 345 A.2d 664, 668 (Pa. 1975)). It is well established in Pennsylvania law that a verdict by a judge or jury can have preclusive effect. It is less facially clear whether a guilty plea meets the first and fourth elements. Thus, we must ask whether a guilty plea can ever conclusively prove individual elements of civil action and whether a party who takes a guilty plea had the opportunity to fully and fairly litigate the specific elements in question. Fortunately, the Superior Court has already answered these questions.

In Stidham v. Millvale Sportsmen’s Club, a criminal defendant plead guilty to Third Degree Murder. 618 A.2d 945, 949 (Pa. Super. Ct. 1992). Subsequently, the criminal defendant was civilly sued for damages under both intentional and negligent tort theories. Id. Then, the criminal defendant’s insurance company refused to cover the damages because the actions were intentional and filed for summary judgment under a collateral estoppel theory. Id. From this motion, the Superior Court established a guilty plea may be used to prove elements when the element was “necessary for [the criminal] conviction.” Id. at 955.

After establishing that a guilty plea can conclusively prove civil liability at least sometimes, the court turned to ask what exactly the third degree murder plea conclusively proved. The Superior Court held the criminal defendant’s “guilty plea of third-degree murder while severely intoxicated does establish that [the criminal defendant] did shoot and kill [the victim].” Id. at 953. But, the court held the guilty plea was not sufficient to establish that the murder was intentional because a third degree murder conviction can be established through “recklessness of consequences.” Id. at 951 (citing Commonwealth v. Austin, 574 A.2d 141, 145 (Pa. Super. Ct. 1990). Contrary to the claim of the Defendant, the Superior Court never held a guilty plea cannot be preclusive.[1] Id. The court only held a guilty plea of Third Degree Murder specifically is not enough to establish intentional conduct but it is enough to conclusively establish certain facts and elements like the existence of the conduct and the results of the conduct. Id.

Establishing those rules, it is clear if the underlying criminal convictions necessarily require proof of every element of a civil cause of action, the underlying criminal conviction—even if a guilty plea—may be used to conclusively prove an entire civil cause of action. Here, we are not presented with an issue nearly as complicated as the definition of malice. We are presented with crimes that prove all of the actus reus of the civil causes of action and require the actor to act intentionally. We discussed our proof of every element of the civil causes of action in more depth in our previous opinion and we need not repeat it here.

In addition to the above, KIME’s Motion for Reconsideration was not filed in a timely manner. The Superior Court has held and consistently reaffirmed that a “trial court may consider a motion for reconsideration only if the motion for reconsideration is filed within thirty days of the entry of the disputed order.”  PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. Ct. 2007) (citing Haines v. Jones, 830 A.2d 579, 584 (Pa. Super. Ct. 2003). This thirty-day time period may only be circumvented if the circumstances are “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court.”[2] Justice v. Justice, 417 Pa. Super. 581, 586, 612 A.2d 1354, 1357 (Pa. Super. Ct. 1992) (quoting Simpson v. Allstate Ins. Co., 504 A.2d 335, 337 (Pa. Super. Ct. 1986)).

KIME failed to file this motion within the requisite thirty-day time period. We issued our opinion on June 21 2021. KIME did not filed his Motion for Reconsideration until July 30, 2021—39 days later. Further, this issue does not meet the bar of “so grave or compelling.” As discussed above, we found that a guilty plea may be used to conclusively prove elements in a later civil cause of action. We stand by that decision.[3]

 

  1. CONCLUSION

 

We previously held all of the elements necessary to establish the civil causes of action for Battery and Assault were conclusively proven by KIME’s guilty pleas. This ruling was challenged because, as KIME’s Motion for Reconsideration claimed, a guilty plea “cannot be conclusive evidence for summary judgment.” This is not correct. The Superior Court has held a guilty plea may be sufficient to conclusively prove facts necessary to a conviction. And even if it is unclear whether a guilty plea is sufficient to conclusively prove a civil cause of action, KIME’s motion for reconsideration was not filed in a timely manner.

 

[1] The court also suggested the elements of negligence were conclusively proven and could be subject to collateral estoppel. This further supports the notion that a guilty plea can conclusive prove a civil cause of action.

[2] The bar of “so grave or compelling” is a high one. The Superior Court has held cases meeting this bar require some abuse of discretion or inequity that is so catastrophic the court needs to step in. See, e.g., Trestrail v. Johnson, 146 A. 150 (Pa. 1929) (judgment was only entered in the judgment docket and not the appearance docket); Haverford Twp. Sch. Dist. v. Herzog, 171 A. 455 (Pa. 1934) (judgment was entered by the prothonotary who did not have the power to enter such a judgment); Salus v. Fogel, 153 A. 547 (Pa. 1931) (judgment was entered on the last day of a term on a verdict obtained when the plaintiff and his counsel were absent).

[3] Even if we are wrong, the law is not clear enough as to make our alleged mistake “so grave or compelling.” Thus, we will not circumvent the general thirty-day limit.

About the author

Lebanon County Legal Journal has written 770 articles for Lebanon County Legal Journal

Search