Legal News

Judge's Recusal Sought in Berry's Civil Fraud Case

By Brian Harris

By Amaris Elliott-Engel
Of the Legal Staff

The plaintiff in the lawsuit in which a jury awarded $190,000 in damages against a Philadelphia judge found liable for civil fraud of a former client has sought the recusal of out-of-town Senior Judge Charles B. Smith.

Last November, a unanimous, eight-member Philadelphia jury awarded $180,000 in punitive damages and close to $10,000 in compensatory damages in favor of plaintiff Denise Jackson for her allegation that Philadelphia Common Pleas Judge Willis W. Berry Jr. defrauded her in a simple slip-and-fall case in 1993 by settling her claim in exchange for a North Philadelphia property located next to Berry's former law office without her knowledge. Jackson also alleged Berry later transferred the property to a corporation in which Berry is the sole shareholder.

According to a motion filed Friday, Smith should recuse himself, among other reasons, because he said during a conference call held Thursday that he would render his decision on post-trial motions in  Cleveland n/k/a Jackson v. Berry Friday and have the decision filed today without giving plaintiff's counsel the time to file a reply and brief in opposition to the defense motions. Defense motions were filed Wednesday.

Smith, Berry's counsel Samuel C. Stretton and plaintiff's counsel Barry S. Yaches participated in the conference call, according to the motion.

The motion also said that Smith should recuse himself because of comments reported by The Legal. After the jury rendered its verdict and exited the courtroom, Smith said from the bench that he was shocked about the verdict because the appraiser of the property did not know that the property's transfer to Jackson from an estate of a decedent that owned the lot was done without Orphans' Court approval.

The motion said that "it is clear ... by remarks made both on and off the record during the course of these proceedings that Judge Smith will place substantial weight on the issue of whether or not Orphans' Court approval was obtained for the settlement of the underlying lawsuit."

The issue of Orphans' Court approval is a fact that is outside of the record, and Judge Smith's consideration of a fact outside of the record "renders him unable to impartially decide the post-trial motions in this case," Yaches wrote.

Full post as published by The Legal Intelligencer Blog on March 08, 2010 (boomark / email).