IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

FRANK SCHALLER, AS PLENARY 

GUARDIAN OF THE ESTATE AND 

PERSON OF MARY GABLE A/K/A MARIE 

GABLE, AN INCAPACITATED PERSON,

Petitioner

v.

NEW FLYER OF AMERICA INC., AND 

SOUTHEASTERN PENNSYLVANIA 

TRANSPORTATION AUTHORITY,

Respondents

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No. 69 EM 2018

MEMORANDUM OPINION AND ORDER

WECHT, J. FILED: August 14, 2018

By letter dated July 6, 2018, I disclosed to the above-captioned parties that, during 

my 2015 campaign for a seat on this Court, I expressed some criticism of this Court’s 

decision in Zauflik v. Pennsbury School District, 104 A.3d 1096 (Pa. 2014), a case that 

plays prominently in this Court’s consideration of the Applications for Extraordinary Relief 

at issue in these matters. I expressed my sincere belief that I could and would participate 

in adjudicating the instant matter without actual or apparent bias, but indicated that I would 

consider with an open mind any recusal motion that any party might file. 

Respondent Southeastern Pennsylvania Transportation Authority (“SEPTA”) has

taken me up on that invitation, filing an application requesting my recusal. Somewhat 

embellishing my disclosure, SEPTA asserts that I “publicly announced that [I] would have 
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decided Zauflik otherwise.” SEPTA’s Application for Recusal (69 EM 2018) at 5. In fact, 

my disclosure said only that, “on at least one occasion, [I] expressed some criticism of 

this Court’s decision” in Zauflik, which accurately describes my full recollection, then and 

now.

SEPTA relies upon Pennsylvania Code of Judicial Conduct Rule 2.11(A)(5), which 

provides that a judge should disqualify himself in any case in which his “impartiality might 

reasonably be questioned,” including when the judge, “while a . . . judicial candidate, has 

made a public statement . . . that commits the judge to reach a particular result or rule in 

a particular way in the proceeding or controversy.” Id. “Recusal is not to be granted 

lightly, lest a jurist abdicate his ‘responsibility to decide.’” League of Women Voters v. 

Commonwealth of Pennsylvania, 179 A.3d 1080, 1083 (Pa. 2018) (Wecht, J., singleJustice order) (quoting Pa.C.J.C. 2.7). 

As I discussed at length in League of Women Voters, and as the United States 

Supreme Court expounded in Republican Party of Minnesota v. White, 536 U.S. 765 

(2002), where judges are elected, the importance of ensuring trust in the judiciary’s 

impartiality coexists uneasily with the candidate’s constitutional right, and democratic 

obligation, to speak freely to voters on subjects relevant to the office. See League of 

Women Voters, 179 A.3d at 1088-91; Republican Party of Minnesota, 536 U.S. at 787 

(“There is an obvious tension between the article of Minnesota’s popularly approved 

Constitution which provides that judges shall be elected, and the Minnesota Supreme 

Court’s announce clause which places most subjects of interest to the voters off limits.”). 

Moreover, criticizing a prior decision is a far cry from committing to its reversal. 

Discussing and debating the law is what jurists do. Any scrupulous judge must 
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counterbalance his own inclination on a given legal question with the paramount 

obligation to honor prior precedent. Stare decisis, and the stability in the law that it 

promotes, is a pillar of our common-law system. That an honorable jurist speaks critically 

of prior precedent should not by itself prompt anyone to assume that he will disdain it. 

Development and presentation of cogent arguments advocating adherence to, or 

divergence from, precedent lie at the core of the skill set for which people pay lawyers. 

With the benefit of this advocacy, judges read, listen, think, and decide. No jurist’s mind 

is a tabula rasa; one should never mistake an open mind for an empty one.1

I have carefully and deliberately reviewed SEPTA’s thoughtful arguments, as well 

as Petitioners’ thoughtful arguments in opposition. I am unpersuaded that my prior 

criticism of Zauflik requires my disqualification here. 

AND NOW, this 14th day of August, 2018, SEPTA’s Application for Recusal is 

hereby denied.

 1 “[E]ven if it were possible to select judges who did not have preconceived views 

on legal issues, it would hardly be desirable to do so. ‘Proof that a Justice’s mind at the 

time he joined the Court was a complete tabula rasa in the area of constitutional 

adjudication would be evidence of lack of qualification, not lack of bias.’” Republican 

Party of Minnesota, 536 U.S. at 778 (quoting Laird v. Tatum, 409 U.S. 824, 835 (1972)).