By Amaris Elliott-Engel
Of the Legal Staff
The state Superior Court has remanded the Bridgeport fire class action case for a trial judge to consider a recusal motion and to reconsider the fees paid to the claims administrator.
The decision is only one part of many aspects of the In Re: Bridgeport Fire Litigation case that have been appealed to the state Superior Court.
Montgomery Common Pleas Judge Steven T. O'Neill approved the $35 million settlement in a complicated class action stemming from a fire that destroyed the Continental Business Center at Front and Ford streets in Bridgeport, Montgomery County, May 15, 2001. The class action brought by a class of 300 business owners, nearby homeowners, business patrons and employees alleged negligence by the business center's owners and other defendants.
Attorney Donald Haviland, who was class counsel before leaving class counsel Kline & Specter and who now represents some of the class, had moved for O'Neill's recusal, while the judge did not act on the motion "upon its belief that attorney Haviland's clients lacked standing to seek his recusal," Judge Anne E. Lazarus wrote on behalf of the panel, which also included Judge Cheryl Lynn Allen and Senior Judge Robert A. Freedberg.
The Superior Court said that Haviland's clients, while not class representatives, do have standing to file a motion to recuse.
"As a general rule, individual class members acting through private counsel are not allowed to participate independently of the class, except in limited circumstances where class members are allowed to appear and object," Lazarus said. "However, we believe that the the unique situation with which we are presented requires an exception to that general rule. In particular, where a portion of a class alleges bias on the part of the presiding court against it and in favor of another segment of the class, we conclude that it is proper and, indeed, necessary to allow a motion for recusal to be filed by the complaining individual class members, by and through private, non-class counsel."
The court said it was making no statement on the merits of the recusal motion.
And on an apparent issue of first impression in Pennsylvania, the court said that judges should abstain from entering any substantive orders until a pending recusal motion has been disposed of.
Lazarus also said that claims administrator Gary S. Silow's fees and costs should not have been approved by O'Neill before giving an opportunity for objections to be filed. That part of the case also has been remanded.
Silow is now a Montgomery Common Pleas judge.