reserved for rebuttal your honour's granted on august twenty second two thousand and eleven the arbitrator made the partial disclosure in this case is critical to resolution understanding of the procedural background to this case and i do have a little experience in the western district of pennsylvania but i'm i'm curious as to what how this came to be arbitrated and what arbitration program this was part of it started as an action before judge schwab and it then was referred to arbitration was this the court annex voluntary arbitration program in the western district was three a arbitration of some time your are this was done fairly far into the case after we went through the routine initial mediation in the case is the end your procedure under the local rules then the case proceeded through discovery  parties and gauged in the extensive discovery in the case you know if the point at which the case was established for trial and we had a pretrial conference or a status conference shortly before the  for potential arbitrators and both sides agreed to the three names is that both sides agreed to the three names subject to further review and analysis the first  arbitrated formally on october thirty first two thousand and eleven that's when the parties signed the actual arbitration agreement and that agreement contained a critical provision that b both parties as well as the arbitrator who was a signatory to the agreement to the governing rules for employment disputes and which bound the arbitrator to adhere to those specific disclosure rules that occurred on authority in our papers and these are commonly used in the western district and elsewhere common practice it doesn't mean that the judge somehow divest himself of jurisdiction on the docket control my cholesterol the order closing the case know yes yes he did your honor you know and judge watt certainly believed when he wrote his opinion deciding the motion of vacate that he retained a continuing jurisdiction those matters and i don't think the greentree or any authority that they attempt to rely upon would support that proposition so getting back to the fundamental issues mr freeman relied upon the partial disclosure that was made to him believing that a former appellate court judge superior court judge in the state of pennsylvania as well as a candidate for the pennsylvania supreme court would have disclosed any further material could have been found prior to you know i mean is it you could have done a little research and didn't then she put you on notice she did not put us on notice sure in fact she to the contrary she assured us by her partial representation what us to believe that she had made an attic with disclosure by saying you all know it's a small legal community pittsburgh and that she knew some people and it is certainly we were entitled to believe that if there was more to it the math she would have told the staff when it what the rules governing arbitration proceedings in employment disputes provide iran are precisely that would just as white which became the majority in commonwealth closing have gone that far because he said in his concurrence that the arbitrator cannot be expected to provide the party with his complete and annex for gated business biography that's what you're of the code of ethics clearly and unambiguously requires the arbitrator to disclose her known direct or indirect financial personal interest and further requires her to  investigate whether or not there are any conflicts and disclose those to the party and the law in the commonwealth also requires a candidate to file a financial disclosure form after the campaign certainly you would if not beyond constructive notice of that would be actual knowledge of it having your firm having made financial contributions to that campaign yoursel so having been placed on notice of the fact she received and being aware under the law that per campaign has to file a report indicating campaign contributions why were you not on is made representations specific we dealing with the relationship issue very general representations though it certainly was a specific i know people i know people at the p g a and it's a small legal community here that she was suggesting merely acquaintance your honor she wasn't suggesting that she actually taught employment law with one of the lawyers in the employment group of people gee should make any intimation that she received contributions from not only the corporation without employment or general counsel to senior executives of b p e g that's certainly something we would have expected she would have disclosed in recently inspected having is judge perry has just mentions your having included a fried claim here just how material should we consider this lack of disclosure on the arbitrator's court to be when you didn't regard it as material enough to disclose your own campaign contribution no we were not in fact aware there's nothing in the record suggesting that the council involved in this case was aware of the as any candidate for state judicial office is required to do had to place a legal distance between herself and fundraising to which she is not permitted to be involved directly in any other solicit or to receive th and we've also argued that she did not disclose her actual relationship with employment counsel we're told me unaware that and that was something that certainly should be mentioned the outset had i known that she received these campaign contributions and th these things out that's correct and we relied upon the representations we made the chain made to us as well as the rules requiring disclosure only for your brief that if you had one before the arbitrator that apple leas might well have had an argument for vacating the award based on her failure to disclose your contributions i use it just in that the failure to disclose is fraudulent depending  wins the party made the party may have standing to object to the award if the adverse party is the party that is receiving the contributions they've not been disclosed particularly in this in the case of is this where there is a partial and complete representations made by the arbitrator and that was in response to the argument your honor that that somehow the contributions that my law firm major campaign is was the campaigns of all the other judicial candidates somehow cancelled out the specific targeted contribute campaign contributions are made by p p d and cancelled out her failure to disclose her relationship with in house employment attorney whatever the standard is whether it's partiality evident partiality appearance of partiality it means an arbitrator's tendency to favor one of the parties where this is a matter of it's not an unusual thing it doesn't suggest partiality in my view it again the issue is whether or not the arbitrator has a duty to disclose there's no case law requiring counsel do  relationships with the arbitrator and the cases we're relying upon dating back to commonwealth codings uniformly seem for the proposition that the appearance of impropriety provides a basis for vacate here  to show that the appearance of impropriety europe was profound again given the plus is that there is that the standard simply appearance of impropriety that is the standard here are direct words complete treatment was not a village's close case and that's what the crow construction case faded because that's correct and the crow construction case also makes it very clear that it analyzes the commonwealth ministry of closing that judge should serve your honor i believe the answers to virtually all of your questions come from the order that was entered on august fourth two thousand and eleven that order disclosed of all merit issues in the case for all time how is what he did any different than what was done and and wes it was very different because in penn west there was confusion regarding whether or not there was an actual settlement and there was administrative closing and the case went back and forth and whether or not there was an assumption of a settlement in this case on august fourth two thousand and eleven the court signed an order by agreement that sent the case to one of three proposed arbitrators therefore it's not the marking of the closing that matters regardless for example with this court would you were hypothetically another port would have done a federal court will never address the merits of the age commission case that the men don't see dismissal anywhere in that in that order right well your honor that's the issue posed by greentree and it's very focused the question from greentree which is where your honour's is whether an order that by its terms resolves all the marriage issues namely whether or not there's a just remain a should for a federal court but doesn't include other language such as it's dismissed with prejudice is in fact a final order it's our position to retrieve resolve that by saying it's appealable so for example if i can provide an analytical thought process let's say judge entered the same order over some form of objection where there was procedural or not then mr freeman would have had thirty days to appeal if he didn't appeal it would be fine now in this case no one was going to all because it was agreed but it should not matter a federal court will never again touch the merits of this case and if we look at the federal arbitration act statutory scheme as the greentree court said that there can be quote separate proceeding and that's the supreme court's language to confirm to vacate to modify and so there was nothing stopping the prevailing party in this case if mr freeman or p g w so chose to file a motion confirm in another supreme court has called a separate proceeding our position is that he didn't state a case the order resolves all the merit issues the this is the standard administrative clothes out who are used in the docket control that went with a close up certainly your honor it's again it's very straightforward the case that was filed was an addition of a nation case under federal law is a pretty court has said the other case this case is a separate proceeding and whether that order can be read as creating residual jurisdiction we would contend would be a reading that's not supported in any other cases limits or cases we cited reach that conclusion supervisory function for a matter stated in the order itself that's why i believe the order answers many of your questions were example there was an issue of compensation so a court always has jurisdiction when force its own orders his order said if you have trouble figuring out compensation come back to me that's not the same thing as saying if you have a separate proceeding and he could have said that he could have written or in fact more importantly in this case the mr freeman could have bargained for language that said  we want you to you know say on top of the whole case but instead that's not what the order says and the remedy is not of serve the remedy under the federal statutory scheme is just file in state court or file a separate proceeding then by definition you need independent jurisdiction and there is none if it's construed as a state or something similar that is you can imply jurisdiction then there would be certain we've laid out our position but jurisdiction is an obligation of attorneys here in the quarter it is and we understand that that that's there's there's threshold number one for major threshold but then you also argue that the evidence partiality claim was whipped yes your honor the other side right should we really invoke waiver here which is within our discretion to determine where it would seem back to the order in all the cases that are cited every single one there is an arbitrator selection process and even in the case that mr fox is so fond of where there's a duty to investigate the parties are going through the process of selecting arbitrators in this case in the judge chambers after discovery is complete an order is entered that says for whatever reasons the parties have and they're free to do that under the f a a they said these three are fine and we all did that based on whatever our internal calculus was and the remedy that was selected was if you don't like number one you go to number two or number three and if you read the whole order there was a purpose to that not only was the hearing supposed to be held rapidly and it was but if my client p g w which by the way is not p p g last we had to pay money by december twenty eighth your client had once  the campaign contributions and the extent of campaign contributions and that is where judge lolly greene might be said to have made incomplete disclosures did she say anything at all about teaching your honor in the record which is my affidavit which was placed below and never challenged my affidavit says  three the time where if you wanted to because we didn't have we didn't even sign and there's no signed record in the in there there's no signed agreement in the record anyway the arbitration was done in august we were going to arbitrate she said things after we agreed to arbitrate nothing was allegedly signed until october thirty first but if you look at the opening brief mr freeman footnote two and this is why the whole argue about non disclosure is not well placed the footnote to says p p g disclosure was very important to me because i had been involved in heated litigation disputes with p p g indeed i could even depose the general counsel and so she says give the donations so there was no follow up the natural follow up to i know some people p g when you've litigated against them as they've admitted in a binding fashion in their brief is who do you know so it's not as though they were misled that she said i know some low level people who work at a factory or i go to church with somebody who is in human resources she said i know some people over there where's the next question why when my client the arbitrator arbitrator selection process was sitting in chambers with judge watt and saying these three people are ok by me can we just forward to the to the standard yeah there are that is something  far as i know this court has not spoken to we would you agree that one thing we can derive from commonwealth coding and from the concurrence just this white the judge  believe that's what you can draw from it the other pieces have said you don't even want i mean try me as a starting point that was no majority clearly the trend commonweal codings to say that so where does that lead is that what is the standard it is not a standard of appearance of impropriety your honor i think there are purely answers to that the basic answer which comes from i think you say about who case which is the recent case as well as the end or a case which i think that very rote as for the crew the court is that there is an objective standard that requires powerful evidence that a reasonable server would think that there is bias and it's a very heavy standard and that standard applies regardless of the factual input into the analysis so whether it's a question of disclosure or nondisclosure you can look at the situation and is there powerful evidence of actual bias and the important point about bias is it has to relate to the results of the proceeding and that's something that i think is lost in mr freeman's argument mr freeman says well there was interest from two thousand and seven with five years earlier all the cases have either directly because there's a family relationship or a business relationship the sense that and this is where the objective test comes in someone looking from the outside in would say if you rule in parties a favor it will benefit you in some way so if it's your son which is the more like ace my son will be happy with me because i ruled in favor of company or the new regency case which they cite where the arbitrators company was making a film with one of the parties to say well i will in a favor we'll get to finish making the film here because the campaign was five years old and there's nothing in the record that says she's running again this isn't even a case of a trivial non disclosure there is no evidence not only objective or analysis that would say the ci would obtain a benefit from ruling in favor of p g w it would be different if she was running again then you could say there might be some punch to it to say well she was gee could have a arguably incurring favor for her next campaign run there's no business relationship there cell family relationship there's no campaign the campaign you're talking about was stale where the p p d people the other company a five thousand out of one point two million so what's in it for her i mean that's sort of the question if you want to put it in a more colloquial way how would she ever benefit there's nothing and that's the analysis minute left i think that ties back to the policy argument why it's so important this was i think if you if the court looks at it almost a perfect arbitration it was agreed with counsel with the judge it happened quickly there's a reason to pinion and there are responsibilities and people going to arbitration to figure out what they want to do and investigate the arbitrator said here there was an initial decision made as reflected in the order just to go with these three arbitrators for whatever reason and i passed normal selection process whether it's because judge loudly green was sitting on the west and sisters neutral panel or whatever misinformation you had then there was time before the hearing started where you could pick one of those three there's no limitation you could do whatever you wanted to do you could say i don't like judge marie lovely green because i looked on the internet and she wrote an opinion that i didn't like or whatever the reason was and we had already agreed if one doesn't work out we go to number t so the only entity in that room at the arbitration in pittsburgh they can be charge of knowledge of the contributions on the record is the plaintiff's law firm and so we have the situation where they're sitting there a firm from chicago he got news new company and they think they've given money to her campaign which in our view is immaterial because as mr fox unseeded it's an ordinary course of judicial campaigns it shouldn't be surprising we bargained for a rapid resolution they had ample time to investigate they had the opportunity in judge watch chambers to say you know i want these three but i want to line the order that says was any material relied upon unavailable before the arbitration occurred in other words in the campaign contributions and all good that's the been found beforehand your honor the record is it's my affidavit again which says five minutes and i found it  it's it's on the internet it's a public record her campaign which is also on the record was big news in pennsylvania because there was a very significant battle political battle parent lee so there newspaper articles and this was a well  well known campaign so to let all the time go by and part of the bargain that's why i brought up the pain issue part of the bargain was if mr freeman won we were going to write a check we weren't going to go running to the court we were go it up we were going to pay the money and be done with it in two thousand and eleven so to come back now when we have all those opportunities when you are represented by counsel it's not a cock of a huge and when you have the opportunity to pump t number three you come back now and say i should have on the internet earlier that is a waiver has to be and that behavior has to be hotel so i see my time's up i'm sure many thank you very much mr ma vein a superior court judge we knew her to be a supreme court candidate we believe that i justifiably but walk wrongly relied upon her statements that generally new people have p p d which i think can only fairly be interpreted is attempt to were relying upon i hardly contest the notion there was any mention of any relationship that she had with senior and haas employment counsel and i specifically rebut that in my affidavit so we have but we have a factual dispute evidently in that area but did you look closely at mr mayor's affidavit because the allegations as to when she allegedly made the disclosure of her relationship with in house counsel are very bad she doesn't identify specific point in time at which she said that and i very clearly this is a permanent ocean that that relationship was never mentioned or even alluded to by her but your honor i did not have preexisting familiarity with her beyond my knowledge that she had been the superior court judge and i read  just not supported by the case on him cite a single case that with the burden upon me that should relieve her of her fundamental disclosure obligations the issue of jurisdiction was addressed  penn west associates in which it defined the effect of administrative closure that has no effect of the this remove a case from the court's active docket so the court clearly has jurisdiction to decide this appeal very further