J-A26037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: FOUR PENNSYLVANIA SKILL 

AMUSEMENT DEVICES AND ONE 

TICKET REDEMPTION TERMINAL 

CONTAINING $18,692 IN U.S. 

CURRENCY

APPEAL OF: COMMONWEALTH OF 

PENNSYLVANIA

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1218 EDA 2022

Appeal from the Order Dated May 16, 2022

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

6673 CV 2021

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 24, 2023

The Commonwealth appeals from the order entered in the Court of 

Common Pleas of Monroe County (trial court) denying its motion for recusal. 

We quash the appeal.

I.

A.

On October 28, 2021, the Commonwealth executed a search warrant 

and seized four Pennsylvania Skill Amusement devices, one ticket redemption 

terminal and approximately $18,692 (collectively, the “Property”) from 

Smokin’ Joe’s Tobacco Shop as part of an ongoing criminal investigation into 

possible illegal gambling activity. L&M Music owns the amusement devices 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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and ticket redemption terminal. Smokin’ Joe’s Tobacco Shop has a possessory 

interest in them.

On November 24, 2021, L&M Music and Smokin’ Joe’s Tobacco Shop 

(collectively, the “Petitioners”) commenced this action by filing an Omnibus

Petition to Return Seized Property1to Suppress Evidence and to Unseal Search 

____________________________________________

1 Pa. R. Crim. P. 588 governs the return of seized property. It provides:

(A) A person aggrieved by a search and seizure, whether or not 

executed pursuant to a warrant, may move for the return of the 

property on the ground that he or she is entitled to lawful 

possession thereof. Such motion shall be filed in the court of 

common pleas for the judicial district in which the property was 

seized.

(B) The judge hearing such motion shall receive evidence on any 

issue of fact necessary to the decision thereon. If the motion is 

granted, the property shall be restored unless the court 

determines that such property is contraband, in which case the 

court may order the property to be forfeited.

(C) A motion to suppress evidence under Rule 581 may be joined 

with a motion under this rule.

Comment: A motion for the return of property should not be 

confused with a motion for the suppression of evidence, governed 

by Rule 581. However, if the time and effect of a motion brought 

under the instant rule would be, in the view of the judge hearing 

the motion, substantially the same as a motion for suppression of 

evidence, the judge may dispose of the motion in accordance with 

Rule 581.

Pa.R.Crim.P. 588.

Under this rule, on any motion for return of property, the 

moving party must establish by a preponderance of the evidence 

entitlement to lawful possession. Once that is established, unless 

(Footnote Continued Next Page)
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there is countervailing evidence to defeat the claim, the moving 

party is entitled to the return of the identified property. A claim 

for return of property can be defeated in two ways: an opposing 

party can establish that it, not the moving party, is entitled to 

lawful possession to the property or the Commonwealth can seek 

forfeiture claiming that property for which return is sought is 

derivative contraband.

Commonwealth v. Durham, 9 A.3d 641, 645 (Pa. Super. 2010), appeal 

denied, 19 A.3d 1050 (Pa. 2011) (internal citations omitted). Because there 

is no common law civil forfeiture, civil forfeiture of derivative contraband 

requires statutory authorization. See Commonwealth v. Irland, 193 A.3d 

370, 382 (Pa. 2018).

Not mentioned in Irland because that case began before its enactment or the 

parties in this case, is 42 Pa.C.S. § 5806, contained in the Forfeiture Act, which 

now appears to govern motions for return of property. It provides:

(a) Motion.—The following shall apply:

(1) A person aggrieved by a search and seizure may move 

for the return of the property seized by filing a motion in the court 

of common pleas in the judicial district where the property is 

located.

(2) The filer under paragraph (1) must serve the 

Commonwealth.

(3) Upon proof of service, the court shall schedule a prompt 

hearing on the motion and shall notify the Commonwealth. A 

hearing on the motion shall, to the extent practicable and 

consistent with the interests of justice, be held within 30 days of 

the filing of the motion.

(4) The assigned judge may require the filing of an answer.

(5) If a forfeiture petition was filed by the Commonwealth 

before the filing of a motion for return of property, the motion 

shall be assigned to the same judge for disposition, as practicable.

(b) Contents of motion.—A motion under this section shall:

(Footnote Continued Next Page)
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Warrant. The court issued a Rule on the Commonwealth as to why the petition 

should not be granted, returnable for answer and hearing on December 16, 

2021.

In response, the Commonwealth filed a Motion to Continue the Return 

of Property Matter and Strike the Omnibus Petition in which it advised, in 

pertinent part, that the Property was seized as part of an active criminal 

investigation for which criminal charges had not yet been filed, so any 

consideration of the Property’s return was premature. (See Commonwealth’s 

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(1) Be signed by the petitioner under penalty of perjury.

(2) Describe the nature and extent of the petitioner’s right, 

title or interest in the property, the time and circumstances of the 

petitioner’s acquisition of the right, title or interest in the property 

and any additional facts supporting the petitioner’s claim. The 

information shall include:

(i) A description of the property seized.

(ii) A statement of the time and place where seized, if 

known.

(iii) The owner, if known.

(iv) The person in possession, if known.

(3) Identify the relief sought, which may include:

(i) Return of the petitioner’s property.

(ii) Reimbursement for the petitioner’s legal interest in the 

property.

(iii) Severance of the petitioner’s property from the forfeited 

property.

(iv) Any relief the court deems appropriate and just.

42 Pa.C.S. § 5806.
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Motion, 12/09/21, at ¶¶ 14(b), 18). The Commonwealth explained that

Criminal “Rule 581(B-C) does not permit this court to consider petitioners’

premature petition to suppress evidence or hold a suppression hearing prior 

to criminal charges being filed.” (Id. at ¶¶ 36-37).2

On December 27, 2021, pursuant to the Commonwealth’s request, the 

trial court continued the hearing until March 2022. In the intervening three 

months, the parties filed several motions, including Petitioners’ motions for 

discovery, one of which contained, in pertinent part, a reference to the text of 

the sealed search warrant. (See Discovery Motion, 3/03/22, at ¶ 12). The 

Commonwealth filed a motion to dismiss the discovery motions, noting, in 

part, that Petitioners’ reference to the sealed search warrant indicates that 

they improperly possess the sealed warrant, which the Commonwealth was 

investigating. (See Commonwealth’s Motion to Dismiss, 3/07/22, at ¶¶ 30-

31). After the court issued a Rule Returnable for the March 24, 2022 hearing, 

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2 Pa. R. Crim. P. 581(B), (C) provides that:

(B) Unless the opportunity did not previously exist, or the interests 

of justice otherwise require, such motion shall be made only after 

a case has been returned to court and shall be contained in the 

omnibus pretrial motion set forth in Rule 578. If timely motion is 

not made hereunder, the issue of suppression of such evidence 

shall be deemed to be waived.

(C) Such motion shall be made to the court of the county in which 

the prosecution is pending.

Pa.R.Crim.P. 581(B), (C).
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Petitioners withdrew their discovery motions by praecipe. (Petitioners’

Praecipe to Withdraw Motion for Discovery, 3/21/22). The Commonwealth 

filed Motions to Exclude Irrelevant and Extraneous Material in which it 

observed that the withdrawal of the discovery motions would result in 

Petitioners not having to explain how they possessed the sealed search 

warrant. (See Commonwealth’s Motions to Exclude Irrelevant and Extraneous 

Material, 3/21/22, at ¶¶ 9-10, 26).

B.

At the March 24, 2022 hearing,3the trial court observed that this case 

is in a unique procedural posture because the Omnibus Petition was filed to a 

civil docket number, using Rules of Criminal Procedure return of property law

at Rules 581 (suppression of evidence) and 588 (motion for return of 

property). (See N.T., 3/24/22, at 19). The court explained:

During [the March 24, 2022] hearing, I made known to counsel 

that I believed that forfeiture proceedings were the procedurally 

proper vehicle in which to adjudicate whether the [Property] 

____________________________________________

3 At the beginning of the March 24, 2022 proceedings, the court expressed 

concern and frustration with Petitioners’ counsel about their possession of the 

sealed warrant and supporting affidavit. (See N.T., 3/24/22, at 11) (“I need 

to take a pause because I’m going to blow a gasket. Gentlemen, none of you 

should have access to that warrant, period, end of story.”); (see id. at 12).

In its opinion, the court notes that it later learned the Commonwealth 

misidentified the warrant in one of the motions to extend the sealing of it, 

resulting in the sealing of a different warrant. (See Trial Ct. Op., at 2 n.1). 

Although the warrant was later sealed again by a subsequent motion, it was 

unsealed for a period without the Commonwealth’s knowledge. It was during 

this lapse that Petitioners’ counsel obtained a copy from the Prothonotary. 

(See id.).
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should be returned to the [Petitioners] or forfeited to the 

Commonwealth. I also made known to counsel my concern over 

[Petitioners]’ due process rights as their property had been seized 

5 months earlier, yet the Commonwealth had not commenced 

forfeiture or criminal proceedings—despite the Commonwealth’s 

repeated representation that the [Property is] illegal per se.

(Trial Court Opinion, 7/11/22, at 3); (see also N.T., 3/24/22, at 20 (asking if 

Commonwealth intended to file criminal charges); 24-25 (questioning the 

fairness of seizure without further action); 26-27, 35-38 (questioning 

Commonwealth about forfeiture proceeding); 42-43 (denying counsel’s 

request to submit authority)).

At the conclusion of the hearing, the court entered an order4that

dismissed the Omnibus Petition for Return of Property and to Suppress 

Evidence but also ordered the Commonwealth to return the money it had 

seized. (See Order, 3/24/22). The order directed the Commonwealth to 

comply with its forfeiture obligations pursuant to 18 Pa.C.S. § 5513(b)

(Confiscation of Gambling Devices),

5 ordered the parties to submit briefs on 

____________________________________________

4 The Commonwealth did not seek to appeal the order to return the money, 

electing to file the stay instead. In the meantime, although it since returned 

the money, it was with the understanding that the Petitioners “shall return the 

funds and any interest thereon to the Commonwealth in the event of the 

Commonwealth’s successful forfeiture of the four gaming devices at issue.” 

(Order, 3/24/22, at ¶ 6).

5 18 Pa.C.S. § 5513(b) provides: “Confiscation of gambling devices.—Any 

gambling device possessed or used in violation of the provisions of subsection 

(a) shall be seized and forfeited to the Commonwealth. The forfeiture shall 

be conducted in accordance with 42 Pa.C.S. §§ 5803 (relating to asset 

forfeiture), 5805 (relating to forfeiture procedure), 5806 (relating to motion 

(Footnote Continued Next Page)
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the forfeiture issue, dismissed the Commonwealth’s Motions to Strike and to 

Exclude Irrelevant Information, and scheduled a June 15, 2022 status 

conference. (See id.); (see also Trial Ct. Op., at 3).

After the parties submitted briefs, the court issued a Rule on the 

Commonwealth to show cause why it should not be required to file a petition 

for forfeiture pursuant to 18 Pa.C.S. § 5513(b) and scheduled a hearing on 

the issue for April 27, 2022.

C.

On Friday, April 22, 2022, the Commonwealth filed an answer to the 

Rule in which it stated that criminal charges had been filed on April 20, 2022,

under Section 5513 of the Crimes Code. It did not file a separate motion for 

stay but maintained that a stay of the March 24, 2022 order was “necessary 

in light of the active criminal prosecution that will be followed by forfeiture” 

pursuant to the Rules of Criminal Procedure. (Commonwealth’s Answer, 

4/22/22, at ¶ 10); (see id. at ¶ 68) (requesting stay of the return of evidence

until the conclusion of the criminal prosecution).

The Commonwealth again stated, inter alia, that the Petitioners are 

failing to follow the Criminal Rules of Procedure by attempting to litigate 

suppression and discovery issues, and that due process is provided by Criminal 

____________________________________________

for return of property), 5807 (relating to restrictions on use), 5807.1 (relating 

to prohibition on adoptive seizures) and 5808 (relating to exceptions).
J-A26037-22

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Rule 588 (motion for return of property), which provides the mechanism to 

challenge seizures. (See id. at ¶¶ 12-19). Further, the Commonwealth noted 

that its insistence on holding an evidentiary hearing before any such 

premature forfeiture is procedurally proper. (See id. at ¶ 32).

At the commencement of the April 27, 2022 hearing, the trial court 

discussed the cases cited by the parties in their respective briefs and advised 

that it still believed this case was a proper forfeiture matter, and that the 

gaming machines should be returned because, if they are illegal, per se, no 

further investigation of them was necessary. (See N.T., 4/27/22, at 2-7).

Specifically, the court stated:

The Commonwealth has consistently said [the gaming devices] 

are per se illegal, and yet they have sought the extension of 

search warrants, and they make bold allegations that it’s an 

ongoing investigation; there’s an ongoing investigation. If it’s per 

se illegal and you were ready and begging this [c]ourt to go to 

hearing on a return of property petition, I don’t understand what 

further investigation regarding these devices there is.

(Id. at 6). When the Commonwealth advised the court that criminal charges 

had been recently filed against the Petitioners and the device manufacturer 

on April 20, 2022, the court responded:

I was wondering if that was coming because for whatever reason 

you don’t want to engage in discovery under the civil forfeiture 

rules, so I was wondering whether this rule was going to force you 

to do that, and my guess is that’s what prompted you to do it 

because you kept telling me you needed to investigate. And now 

all of the sudden—and I just—be careful. Your word and your 

integrity is the one thing you can’t get back when you lose because 

you kept telling me ongoing investigation. How much 

investigation was there that occurred with respect to these 

machines? And I don’t want to know anything confidential. But 
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look me square in the eye as an officer of this court and tell me 

there was additional investigation relative to this case between 

the time that you kept pleading with me that there was ongoing 

investigation and the filing of these charges.

(N.T., 4/27/22, at 8); (see id. at 7, 9). The assistant district attorney (ADA)

assured the court that continued investigation had been conducted before 

filing the criminal charges, despite the gaming machines being illegal per se.

(See id. at 9-10).

When the court learned the Commonwealth had not returned the seized 

cash as ordered, (see id. at 16), it:

was flabbergasted that a lawyer would not comply with my order 

in a timely manner. Admittedly, I was stern and frustrated by the 

Commonwealth’s inaction.

Assistant District Attorney Andrew Throckmorton, who had 

represented the Commonwealth at all proceedings, repeatedly 

requested to make a record on the issue of the Commonwealth’s 

not returning the seized cash. I advised that I would issue a rule 

and schedule a hearing at a later date on his request, and that he 

should not ask again. He continued to ask to build the record on 

the issue 13 times. After the 10

th request, counsel for 

[Petitioners] objected to Attorney Throckmorton’s behavior as 

being in criminal contempt of court. Attorney Throckmorton

proceeded to ask three more times, at which point I directed a 

deputy to escort him from the Courtroom. The proceedings ended 

shortly thereafter.

At the conclusion of the hearing, I issued an order: 1) 

reinstating [Petitioners]’ Petition for Return of Seized Property and 

to Suppress Evidence; 2) dismissing [Petitioners]’ Petition to 

Unseal Search Warrant as moot; and 3) scheduling a hearing on 

the Petition for May 16, 2022. I also issued a rule ... upon Attorney 

Throckmorton to show cause why he should not be held in direct 

contempt of court and indirect contempt, with hearing also 

scheduled for May 16, 2022.
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(Trial Ct. Op., at 5); (see also N.T., 4/27/22, at 17 (court stating, “now you 

have ticked me off ... Are court orders just discretionary to our District 

Attorney’s Office?”), 18 (“You violated my Order for a month before you had 

the brains to file something with the Court. ... You do not ... get to willy-nilly 

choose when and if you are going to follow a Court Order.”), 20 (“I am 

disgusted. I am disgusted. ... Now I have to decide what to do ... because I 

have an officer of the court who was given a Court Order and knowingly, 

knowingly violated it and did nothing for a month.)).

Thereafter, Petitioners’ counsel requested that since criminal charges 

had been filed, the petition for return of property and to suppress the evidence 

be “treat[ed] as refiled under the criminal docket.” (N.T., 4/27/22, at 20). 

However, they did not withdraw their motion and re-file it at the criminal 

docket number and the court did not dismiss it to be re-filed.

D.

On May 11, 2022, the Commonwealth filed the subject Motion for 

Recusal, in which it claimed that that the court’s actions at the March 24, 2022 

and April 27, 2022 hearings supported recusal. Specifically, the 

Commonwealth claimed that at the March 24, 2022 hearing, the court 

impermissibly questioned the Commonwealth’s prosecutorial discretion, the 

fairness of the proceedings, interrupted counsel’s attempts to respond and to 

build a record or submit authority. (See Commonwealth’s Motion for Recusal, 

5/11/22, at ¶ 4) (citing N.T., 3/24/22, at 20, 24-27, 35-38, 42-43). The 
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Commonwealth maintained that at the April 27, 2022 hearing, the trial court

criticized the Commonwealth’s use of prosecutorial discretion, questioned the 

Commonwealth’s criminal investigation and motive in filing criminal charges,

and accused the Commonwealth of willfully violating its order to return the 

seized money and stating that it would have “respected” an appeal filed two 

days after the entry of the March 24, 2022 order. (Id. at ¶ 5) (citing N.T., 

4/27/22, at 6, 8, 9, 10, 11, 17-20).

The motion went on to aver that the trial judge’s failure to recognize 

that a party has 30 days to file an appeal or to comply with a court order6

“shows a lack of awareness of the law or a disregard of same,” the court’s 

repeated interruptions and refusal to allow the Commonwealth to make a 

record was not in keeping with the Code of Civility, and the “court’s use of a 

loud voice and angry tone[,] overall intemperate conduct in addressing the 

attorney for the Commonwealth [and its conduct in scheduling contempt 

proceedings against the Commonwealth’s attorney] show bias, prejudice or 

unfairness, and is not in keeping with the Code of Civility ... and require 

recusal.” (Id. at ¶ 6).7

____________________________________________

6 The Commonwealth cites no authority that an order does not have to be 

followed until the appealed period has lapsed. We are aware of no such 

authority.

7 The Pennsylvania Code of Civility provides, in pertinent part, that:

(Footnote Continued Next Page)
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In response, the Petitioners argued in part that the recusal issue was 

waived for the Commonwealth’s failure to bring the motion at the earliest 

possible time that a basis was known, and that it should be dismissed for the 

Commonwealth’s failure to seek their concurrence pursuant to Monroe County 

Rule of Civil Procedure 208.2(d).

8 (See Petitioners’ Response in Opposition 

____________________________________________

1. A judge must maintain control of the proceedings and has an 

obligation to ensure that proceedings are conducted in a civil 

manner.

2. A judge should show respect, courtesy and patience to the 

lawyers, parties and all participants in the legal process by 

treating all with civility.

* * *

6. A judge should not employ hostile or demeaning words in 

opinions or in written or oral communications with lawyers, parties 

or witnesses.

* * *

10. A judge should allow the lawyers to present proper arguments 

and to make a complete and accurate record.

11. A judge should not impugn the integrity or professionalism of 

any lawyer on the basis of the clients whom or the causes which 

he or she represents.

204 Pa. Code § 99.2(1), (2), (6), (10), (11); (see Motion for Recusal, at 

¶ 6(e)).

8 Pursuant to Monroe Co.R.C.P. 208.2(d)(1), (3), “[a]ll motions ... shall contain 

a certification by counsel for the moving party that concurrence in the motion 

has been sought from all opposing counsel and that such concurrence has 

been granted or denied. ... Failure to comply with this provision shall constitute 

(Footnote Continued Next Page)
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to Motion to Recuse, 5/12/22, at 2) (pagination provided). It maintained that 

“[u]nder the circumstances, what occurred is nothing more than the [c]ourt 

disagreeing with the Commonwealth on the law, and then asking counsel to 

justify decisions he made.” (Id.) (citation omitted).

E.

At the commencement of the May 16, 2022 hearing on the petition,

9

the 

court addressed the Motion for Recusal. It admitted it had been frustrated

with the case from the beginning when it learned the sealed search warrant 

had been disclosed and the Commonwealth failed to return the seized money 

as ordered. It apologized for allowing its frustration to show, but it denied the 

Commonwealth’s recusal motion because it believed, after reflection and 

review of the hearing transcripts, that recusal was unnecessary since it had 

no bias or ill will toward any counsel and could be impartial and fair. (See

N.T., 5/16/22, at 3-5).

____________________________________________

sufficient grounds for the Court to deny the motion.” Monroe Co.R.C.P. 

208.2(d)(1), (3).

9 The trial court had granted the Commonwealth’s motion to sever the petition 

hearing from the contempt hearing and scheduled the contempt hearing for 

May 20, 2022. Although the hearing was held after the appeal was taken and, 

therefore, is not part of this appeal, we note for the sake of completeness that 

at the contempt hearing, the direct contempt for repeatedly interrupting the 

court to build a record was dismissed after counsel’s statement that he 

understood the court’s position, the indirect contempt was dismissed after the 

court learned that the Commonwealth had returned the money as ordered,

and the court again apologized for its previous behavior. (See N.T., 5/20/22, 

at 5-10).
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The Commonwealth advised it was going to appeal the denial of the 

recusal motion pursuant to Pennsylvania Rule of Appellate Procedure 311(d), 

thus divesting the court of jurisdiction. (Id. at 5). Thereafter, Smokin’ Joe’s

counsel accused the Commonwealth of acting in bad faith based on his own 

anecdotal story, and L&M Music’s attorney argued that as this was a civil 

matter, Rule 311(d) was inapplicable. (See id. at 6-7). The court observed

that:

[M]y issue from the get go, [has been that] this was filed to a civil 

docket, under the rules of criminal procedure, which then 

[created] this quagmire [with] no playbook[.] ... So technically, 

this is now a return of property ... with an underlying criminal 

action, to which the rules of criminal procedure now apply.

(Id. at 9). L&M counsel responded, “Well, there’s no doubt about that[.]” 

(Id.). However, after discussion with all counsel about the language of Rule 

311(d), the court found that it was inapplicable to this matter because,

although the criminal rules guided the procedure of the return of property 

matter, “the appellate rules for an interlocutory appeal apply only to the 

criminal prosecution.” (Id. at 16). Having found that Rule 311(d) did not 

divest it of jurisdiction, the court then addressed the other issues before it, 

taking them under advisement.
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The same day, the Commonwealth filed a notice of appeal pursuant to

Rule 311(d) and Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985),

10 and

a Praecipe for Entry of an Adverse Order Pursuant to Pa.R.A.P. 301,

11 “since 

this issue will either terminate or substantially handicap the prosecution of the 

[Petitioners].” (Praecipe for Entry of Adverse Order, 5/16/22).12

The Commonwealth filed an application to stay the trial court 

proceedings in this Court, which we granted on May 20, 2022. The only 

proceedings mentioned in the application for stay was the return of property 

____________________________________________

10 The Dugger Court held that a Commonwealth’s appeal of a pretrial order 

is properly treated as an appeal from a final order if “the Commonwealth 

certifies in good faith that the [] order terminates or substantially handicaps 

its prosecution,” which was superseded by Pa.R.A.P. 311(d) in 1992. See 

Commonwealth v. Dixon, 907 A.2d 468, 471 n.8 (Pa. 2006).

11 Pa.R.A.P. 301(e) Emergency appeals, provides:

Where the exigency of the case is such as to impel an immediate 

appeal and the party intending to appeal an adverse action is 

unable to secure the formal entry of an appealable order pursuant 

to the usual procedures, the party may file in the trial court and 

serve a praecipe for entry of an adverse order, which action shall 

constitute entry of an appealable order for the purposes of these 

rules. The interlocutory or final nature of the action shall not be 

affected by this paragraph.

12 The only matter before us is the denial of the motion to recuse. At page 2 

of its brief, the Commonwealth sets for the order in question from which the 

appeal is taken as follows:

Appeal was perfected by means of a Praecipe for Adverse Order, 

Pursuant to Pa. R.A.P. 301, with the submitted Order to be 

appealed as follows: AND NOW, this 16th of May, 2022, the 

Commonwealth’s Motion for Recusal is DENIED. By the Court: 

Jennifer Harlacher Sibum, Judge.
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proceeding. Petitioners filed a motion to quash that we denied without 

prejudice to the Petitioners’ right to raise the issue with the merits panel.13

On July 28, 2022, the Commonwealth filed a Motion to Modify the Record to 

include the trial court reporter’s audio recording of the April 27, 2022 

proceedings that this Court denied without prejudice to the Commonwealth 

raising the issue with the assigned merits panel. On October 20, 2022, the 

Commonwealth filed the motion for the panel’s consideration and it was denied

on October 24, 2022.

Because the return of the money seized is no longer at issue, the issue 

before us is whether the trial judge is required to recuse herself from the 

remaining matter involved - the return of the four devices seized that the 

Commonwealth claims are illegal gambling devices.

II.

As a preliminary matter, we must address whether we have jurisdiction 

to consider this interlocutory appeal. Generally, we can only address the 

merits of an appeal taken from “(a) a final order or an order certified as a final 

order; (2) an interlocutory order [appealable] as of right; (3) an interlocutory 

order [appealable] by permission; or (4) a collateral order.” Commerce 

Bank v. Kessler, 46 A.3d 724, 728 (Pa. Super. 2012), (quoting Stahl v. 

____________________________________________

13 Petitioners also filed a motion for clarification or reconsideration of our May 

20, 2022 order and an emergency application to lift the stay. We denied both 

requests per curiam.
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Redcay, 897 A.2d 478, 485 (Pa. Super. 2006)) (citations omitted); see also

Pa.R.A.P. 341(b). “As a general rule, only final orders are appealable, and 

final orders are defined as orders disposing of all claims and all parties.” Am. 

Indep. Ins. Co. v. E.S., 809 A.2d 388, 391 (Pa. Super. 2002); see also

Pa.R.A.P. 341(a) (“[A]n appeal may be taken as of right from any final order 

of a government unit or trial court.”).

The Commonwealth argues that it can appeal the denial of its Motion to 

Recuse under Pa.R.A.P. 311(d) as of right because Petitioners’ motion for 

return of property is properly governed by the Rules of Criminal Procedure 

where Petitioners improperly filed the petition, which involves evidence seized 

as part of the criminal investigation at a civil docket number. The 

Commonwealth claims that if the gambling devices are returned, it will 

substantially handicap the prosecution of this matter, thus giving us 

jurisdiction to hear this appeal pursuant to Rule 311(d). (See

Commonwealth’s Brief, at 22-23).14

Conversely, Petitioners claim that Rule 311(d) is inapplicable and we 

lack jurisdiction because this is an interlocutory appeal of a civil matter. (See

Petitioners’ Brief, at 14).

____________________________________________

14 Although the Commonwealth mentions that it filed a Praecipe for Adverse 

Order pursuant to Rule 301, it does not address the impact of such filing. 

(See Commonwealth’s Brief, at 22). Moreover, we would not find this 

dispositive where the Rule expressly states that the filing of a praecipe does 

not affect the interlocutory or final nature of an order. See Pa.R.A.P. 301(e).
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Pa.R.A.P. 311(d) - Interlocutory appeals as of right, provides, in 

pertinent part:

(d) Commonwealth appeals in criminal cases.—In a criminal 

case, under the circumstances provided by law, the 

Commonwealth may take an appeal as of right from an order that 

does not end the entire case where the Commonwealth certifies 

in the notice of appeal that the order will terminate or 

substantially handicap the prosecution.

Pa.R.A.P. 311(d) (emphasis added).

Regarding this Rule, in Commonwealth v. White, 910 A.2d 648 (Pa. 

2006), the Pennsylvania Supreme Court observed that:

[although] we limit the application of Rule 311(d) to those 

circumstances provided by law in which a pretrial ruling results in 

the suppression, preclusion or exclusion of Commonwealth

evidence, [this] should not be read as undoing Rule 311(d), which 

simply provides the Commonwealth may appeal an order, not just 

certain types of orders, which terminates or substantially 

handicaps the prosecution. This is the plain language of the 

Rule[.] ... Accordingly, when an order terminates or has the 

practical effect of terminating some or all of the Commonwealth’s 

case, or substantially handicaps the Commonwealth’s case, and 

the Commonwealth has certified the same in good faith, the 

Commonwealth is entitled to an interlocutory appeal as of right 

under Rule 311(d).

Here, the Commonwealth has certified in good faith that denial of 

its recusal motion will substantially handicap its prosecution of this 

case. Indeed, if the judge is unable to preside and serve as factfinder impartially, and an unfair verdict is rendered, the 

Commonwealth, unlike a criminal defendant in a similar 

circumstance, has no appellate recourse. Thus, if there is a good 

faith certificate that a pretrial ruling substantially hampers the 

case of the party whose one job is to seek justice, and the only 

possible time to appeal is before jeopardy attaches at trial, the 

appeal should be allowed. Accordingly, we proceed to review the 

merits of the recusal issue under Rule 311(d).

White, 910 A.2d at 654-55 (citations and quotation marks omitted).
J-A26037-22

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If this appeal involved a criminal matter where double jeopardy would 

attach, like in White, we would find this reasoning persuasive.

However, while return of property motions are filed pursuant to Pa. 

R.Crim.P. 588, a return of property motion is not criminal in nature. In 

Irland, our Supreme Court held that this proceeding is civil in nature, stating:

[I]t is notable that Rule 588 permits a motion for return of 

property to be decided at the same time as a motion for the 

suppression of evidence, i.e., before trial. See Pa.R.Crim.P.

588(C). Thus, a forfeiture pursuant to Rule 588 may occur prior 

to conviction and in the absence of a criminal conviction. 

Accordingly, such forfeitures, although founded in a rule of 

criminal procedure, must be denominated civil in nature, since a 

criminal forfeiture is a criminal sanction resulting from the 

conviction.

Irland, 193 A.3d at 379.

15

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15 If this matter is considered civil for purposes of appeal, under Pa.R.A.P.

1736, the Commonwealth would receive an automatic supersedeas from any 

order directing the return of property.

(a) General rule.—No security shall be required of:

(1) The Commonwealth or any officer thereof, acting in his 

official capacity.

(2) Any political subdivision or any officer thereof, acting in 

his official capacity, except in any case in which a common pleas 

court has affirmed an arbitration award in a grievance or similar 

personnel matter.

(3) A party acting in a representative capacity.

(4) A taxpayer appealing from a judgment entered in favor 

of the Commonwealth upon an account duly settled when security 

has already been given as required by law.

(Footnote Continued Next Page)
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Consequently, where the underlying matter is a civil matter or a criminal 

matter not subject to double jeopardy, we have routinely held a pre-trial 

motion seeking to recuse a judge from further proceedings is not a final order. 

See In re Bridgeport Fire Litig., 51 A.3d 224, 229 (Pa. Super. 2012) (“an 

order on a motion for recusal is an interlocutory order for purposes of an 

appeal”); see also Rohm and Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. 

Super. 2010); Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super. 1999); 

Hahalyak v. Integra Fin. Corp., 678 A.2d 819 (Pa. Super. 1996); Kenis v. 

Perini Corp., 682 A.2d 845 (Pa. Super. 1996). Additionally, we have stated 

that an appeal from the denial of a pre-trial motion to recuse does not fall 

within any of the categories listed in Rules 311 (Interlocutory Appeals as of 

Right) or 313 (Collateral Orders) of the Pennsylvania Rules of Appellate 

Procedure. See Krieg, 743 A.2d at 511.

____________________________________________

(5) An appellant who has already filed security in a lower 

court, conditioned as prescribed by these rules for the final 

outcome of the appeal.

(b) Supersedeas automatic.—Unless otherwise ordered 

pursuant to this chapter the taking of an appeal by any party 

specified in Subdivision (a) of this rule shall operate as a 

supersedeas in favor of such party, which supersedeas shall 

continue through any proceedings in the United States Supreme 

Court.

Pa.R.A.P. 1736 (emphasis added).
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In this case, the Commonwealth is seeking to recuse the trial judge from 

considering whether to return the four gambling devices. If the trial judge 

orders that the devices be returned, double jeopardy principles would not be 

implicated and that decision could be appealed, including the trial judge’s 

denial of the recusal motion.

Accordingly, the appeal from the denial of the recusal motion is from an 

interlocutory order and is quashed.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/24/2023