Attorneys for a former Montgomery County housing developer have appealed to the state Superior Court to have the entire county judicial bench recused in a 19-year-old lawsuit over an unpaid bill.
The argument centers on Thomas C. Branca, who represented carpeting contractor Roy Lomas until Branca was elected to the county court in 2001. Branca passed the case to another firm and negotiated a referral fee - a common practice when lawyers ascend to the bench.
The defendant, James B. Kravitz, argues that he did not know about the referral fee when he agreed to have Branca's colleague, Judge Thomas P. Rogers, decide the case in a nonjury trial.
Kravitz's attorneys also say Branca continued to consult on the case after he rose to the bench, which could be a breach of the judicial code.
In 2007, Rogers ruled against Kravitz, ordering nearly $1.7 million in back payments and damages for breaching his contract with Lomas. Branca's share of that award would be $600,000.
Hearing Kravitz's appeal in Philadelphia last week, Superior Court Judge John T. Bender appeared skeptical of the "appearance of impropriety" argument. Bender said it was both acceptable and common for ascending jurists to receive referral fees, and questioned why Kravitz failed to bring up this concern during the trial.
"Isn't that like withdrawing a guilty plea after you get a harsh sentence?" Bender asked.
Bender, along with Judges Susan Peikes Gantman and Jack A. Panella, will decide the case in the coming weeks.
The case dates back to 1994, when Kravitz's company failed to pay Lomas for carpeting installed in a new housing development in Whitemarsh. According to Lomas' attorneys, the development "went belly up" in a recession.
"Over 15 years, [Kravitz] went out of his way to not pay a dime to this man," Lomas' attorney, Paul Rosen, said, noting that the original amount owed was less than $31,000.
On top of that bill, Rogers awarded Lomas $170,000 for interest, lost profits, administrative costs and attorneys fees. Punitive damages brought the total award to nearly $1.7 million.
Lomas' attorneys say the Contractor Subcontractor Payment Act - the basis for the award of punitive damages - "was made for people like Kravitz," who is "using his power, his money, his lawyers ... to deny Mr. Lomas every penny he's entitled to," Rosen argued.
Kravitz's attorneys counter that Branca's involvement has tainted the entire proceeding. They point to the Pennsylvania Code of Judicial Conduct, which says, "Judges should avoid impropriety and the appearance of impropriety in all their activities."
"It is precisely a situation such as this one that the appearance of impropriety standard was intended to address," legal ethicist Lawrence J. Fox wrote in an opinion supporting Kravitz's appeal.
In a discovery hearing in 2011, Branca admitted he had about 20 conversations with Lomas' attorneys. Branca said they were merely updates on the case, "an off-the-cuff remark here and there about something, but it was nothing of any substance."
Branca said he is barred from commenting on ongoing court cases.