given the scoring is the bread versus allegheny county and you know county district attorney's office in general has agreed to permit counsel to argue in you hear me we can hear you but if you could speak up a little bit i think that might be helpful if i may please the court my name is polish for the state form of those six factors the trial court did not find the factor for which is bad faith or willful misconduct applied and if i may instead of going through the five remaining factors which i have briefed one by one i'd like to zero in on when i heard two main issues of concern in this case one separating out factor t which is the question of prejudice that was being raised as a result of the death of one of the witness says and the other issue is the existence adjudicated motion to dismiss by the trial court and its impact on the other remaining factors i'd like to hear from you particularly with respect to that pending motion that motion remain after the case went back to the district court or were among other things with in the context of the first trial court determined was was that how and did not provide it in his mind sufficient reasoning for the delay and that therefore because sufficient reason for the delay was provided that there was no ability for him to measure the merits to the delay not the case when the standard for that particular factor is that the court looks at the  is is belief that you were probably as i read it would have only your client had not educated if you will pushed to move this matter alon but we didn't know why we did not notice that until a certain amount of time had passed we were not aware of that we believe that the case was reached that the case was reopened and that th case arose because i had five kong currently with the motion to stay our response in opposition and our brief in opposition to defendants a motion to dismiss do think that that may have led to the confusion may have led to the case not being triggered for adjudication of the motion to dismiss on the  known that or may not have had it brought to his attention that this motion was right for this and that is clearly a possibility your honor and but when we look at factors would just look at that factor number one because even if we assume that the court did not know that this matter was not brought to the district court's opinion i tension the opinion makes clear that the is putting the onus upon you were on your client to move this model to take a ship that is to say that the district court had no responsibility to is he used the term reignite the ma that is the correct reading of what the district court judge determined and if i may address do you think that we shared responsibility there i don't sponsibility to move the case along however this case does present crissy general situation and actual situation that are unusual and wow it is not the court or the defendant's responsibility to move the case along we had felt that the case that we had done everything procedurally in terms of having  on the record in the district court yes it is it is part of the record on the district court that the stay was limited until the conclusion of appellate percent and obviously the notice of appeal was on the record in the that's correct and that was on the record actually before this study order was was filed yes that's correct was there anything else on record in the district court after that there were no other than the mandate when the mandate returned when the man they returned ok and what should have happened at that point not tell me and that the adjudication of the pending and fully brief motion to dismiss the eighty eight playing should have happened and the error on our part was as time was progressing we did not reach out to the court and say what's going on here you're very long you're obviously familiar with the c m e c f system when that day and they came back everybody who was involved in that case would have gotten an e mail correct yes ok including the district court judge i have no information but i would i would assume i don't want to assume all right i just i just want to clarify the picture with the district court may not have received however after the return of the case to the western district docket is the does weigh it against you that is in favor of dismissal while at the same time and maybe the same paragraph also states that the prejudice here could cut both ways by virtue of the  to to answer the question in this case is not one a singular agitating supervisor slash witness to the employee in the case pleads that the also suggesting that ealing testimony was not essential for the defense to be able to put forward a defense to your case w here which is abuse of discretion or standard of review which is abuse of discretion it's a very high standard it's not necessarily how any of your honors may necessarily have decided this case but essentially is whether he he the six why i think it's in this particular case i think it is number one the delay in number two the prejudice suffered by the defense and i think each of those factors is that is listed in the cases that have reviewed this this area prejudice has been looked at as a very very significant and probably an overriding factor all right but let's let's let's set aside the question of  record what is there in the district court's opinion to suggest that he gave any meaningful consideration to the this or specter which is looking to alternative sanctions especially against the backdro comes of alternative sanctions i believe the judge did address it and i think quite frankly there are there are no other factor other sanctions and in a case like this really make any sense if you look at what's been played here the plaintiff mr hildebrand in his brief essentially said or in his complaint says that he only was directly involved in many if not most of the pre term but there is no discussion by the district court has to be even granting the importance of easily how the case might have proceeded based upon evidence from an about bo main allegations involve you know what a brand eeling in a one on one type situation and when they wait to the point of doing anything until yelling has died it really prejudices us in terms of a the mandate is returned in the district court now it's jurisdiction according to plaintiff they thought that the court would do something but who in their right mind if you have if you have a good case if you have a case you think has lots of merit are you going to wait three years to do anything as good as mr porter i guess the question there would be it was your motion that was pending before the court argument has been that they didn't do anything you inferred and i think maybe you didn't intend to infer this but you inferred they waited to ilene died in fact what happened was it was you that then made   what what happened here my partner mr schneider was preparing to retire he was reviewing files recognize this learned it detected dealing had died and then he filed the motion right ok that that would then all to really resolve this case had he not filed the motion i question whether anything would have still happened with this case and what's interesting to go back to the merits of the case type argument plaintiff's counsel points in seems to me she's saying why when i asked the court to take action when he might dismiss my case it doesn't sound like she thought she had a good case if she did she want to push forward and said we have we have a case is that sitting there professor years if you have a if they know that the case is sitting there they know that the mandates been returned and they do nothing and when we learned that detective dealing had died when my partner was preparing to retire then he a motion and it's well grounded in the law i mean the cases talk about prejudice i think there can almost be no question in my mind that there is significant prejudice to the defense here we've lost our main witness we've lost the ability mr logan and in my mind they are not they are certainly been botsford is more a paperwork for lack of a better term one gains involvement was anything with one again was involving certain aspects of dealing pretty much only not here to corroborate him mailings not here to corroborate blachford healing's lie here to corroborate anybody quite frankly so we've lost the only in terms of the main witness we've lost in terms of his ability corroborate other witnesses and it's judge well pointed out in his opinion discrimination cases like this generally turn on that he said she said type deal we're going to raise you to say we no longer have the only to say something with the case in my mind is is it's on that they they have the ability they have the obligation to move the case the court doesn't have the obligation to move the case the fence doesn't have the obligation though i beg i beg to case quite candidly mr porter is there anything on the record that would support the notion that the plaintiff was personally responsible for the of judge schwab that after all mr hildebrand was unemployed at the time so he had plenty of opportunity to act on this himself i believe that was essentially the court's observation was it not  i believe he said something along those lines yes or i would suggest that he wanted rand's a twenty plus year law enforcement officer who in my experience and i don't with mr know what a brand both when i was a prosecutor and  plaintiff to give any explanation but there is nothing to do with the legal merits of the claim that it does not it does not if but again the pullets doesn't require each and every factor to be there and that's a pretty important one though is it not if we discussed early on of the argument that as a matter of legal policy we dissipate a dismissal on concern it certainly makes it an important factor i would certainly agree it's an important factor in the only thing in this record in again i referenced earlier miss chris steam in one of her pleadings as to why when i bring it to the court's attention if i thought he was going to fro and out to me if you think the judge is going to throw it out you don't think you have a very good case the other thing i think we're france is that our infers that if you will is if you think you have a available to the defendant there are other main witnesses that are as intimately involved in the actions taken against mr hildebrand as well as taken against other older employees there's if you can you know you know you knew you knew this case you knew this case was back from the appellate courts and whether mr porter's character characterization of your current activity is accurate or not you still decided not to make an inquiry from the board didn't you you know way didn't  face the risk in waiting this long if somebody became unavailable you're the defense france's case would be damage now absolutely not there is no self serving strategy this this it we did it but only for a time that the case was being was returned and the motion to dismiss was going to be adjudicated we had no reason to believe anything else to say that the six factor that i had some belief that we didn't have a good case and so we just sat on  looking at the allegation set forth in paragraph twelve and all of it some parts you will see that there are multiple he says in this case and some of the documentation this is a which includes a statement that the prejudicial effect of healing staff cuts both ways affects both sides and we would therefore as a review in court be permitted to look to that language as we go about not waiting is the district court weighed but reviewing how the district court weighed the fact yes i believe that is correct thank you very much we