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____________________________________ * Former Justice specially assigned to the Superior Court. 2018 PA Super 67 DONALD E. HAVILAND, JR.

Appellant

v.
KLINE & SPECTER, P.C. : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1791 EDA 2017 Appeal from the Order Entered May 12, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 080900336 BEFORE: MURRAY , J., M cLAUGHLIN , J., and STEVENS*, P.J.E. OPINION BY MURRAY, J.: FILED MARCH 22, 2018 Appellant, Donald E. Haviland , Jr. (Haviland) , appeals from the order denying his petition for a preliminary or special injunction to disqualify retired Judge Mark Bernstein (Bernstein) as the court

- appointed neutral arbitrator in this matter. For the rea sons that follow, we quash this appeal. Haviland and the law firm Kline & Spect e r (K&S) have been involved in a long and acrimonious series of dispute s. In November 2001 , K&S hired Haviland , who is an attorney, to manage its newly

- formed Class Action Depa rtment. The employment agreement between Haviland and K&S (Employment Agreement ) set forth the terms that would control the a llocation of client fees and cost s in the event Haviland were to leave K&S. Specifically, Paragraph 5 of the Employment Agreement stated that Haviland would have to pay K&S a “referral fee” in the amount of one

- third of the total fees he received for any non

- class actio n matter in which he continued to act asJ

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counsel after leaving K&S. Employment Agreement, ¶ 5. During his employment with K&S, Haviland represented the Commonwealth of Pennsylvania (Commonwealth) in several lawsuits involving major brand

name prescription drug companies known as the PA

- AWP and Lupron Blues litigation.
In September 2006 , Haviland lef t K&S because the law firm had decided
to close its Class Action Department. Upon leaving, Haviland continued to act as counsel for the Commonwealth in the PA

- AWP and Lupron Blues litigation. Approximately six months later , Haviland obtained the Commonwe alth’s first favorable settlement with a defendant in those cases

. On July 13, 2007, K&S filed a Petition for the Appointment of an Arbitrator to adjudicate its dispute with Haviland regarding the apportionment of costs and fees that Haviland and K&S would receive under the Employment Agreement stemming from the PA

- AWP and Lupron Blues litigation. K&S contended that Paragraph 5 of the Employment Agreement required Haviland to pay K&S one

- third of the total fees he received from the settlements in the
PA

- AW P and Lupron Blues cases . This petition was the genesis of the series lawsuits and arbitration proceedings and awards that Haviland and K&S continue to litigate to this day. 1

_________________ __________ ______ ____ _______ 1 K&S prevailed against Haviland in the arbitration proceeding s that began in July 2007 . On October 3, 2011, Haviland was ordered to pay K&S $5,739,490.15, representing one

- third of the fees that he had received in the PA

- AWP and Lupron Blues litigation (plus 6% interest).J

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On September 3, 2008, Haviland commenced this action by filing a praecipe to iss ue a writ of summons. On November 13, 2008, the trial court stayed the action pending the outcome of the arbitration proceeding s in the aforementioned related dispute between the parties. On January 22, 2016, following the arbitration award in the relate d dispute, Haviland filed a complaint in the instant action in which he alleged that K&S breached Paragraph 6 of the Employment Agreement, which governs the allocation of costs and fees in class

- action lawsuits in which Haviland continued to act as counsel after leaving K&S. Haviland alleged that he was entitled to fees stemming from several class

- action lawsuits (unrelated to the PA

- AWP and Lupron Blues cases) that he handled while working for K&S that he never received. On February 2, 2016, K&S filed preliminary objections in which it asked the trial court to compel Haviland to submit his claims to arbitration pursuant to Paragraph 10 of Employment Agreement. Paragraph 10 of the Employment Agreement provide s that the parties agreed to enforce the Empl oyment Agreement “by either binding arbitration under [Pennsylvania’s] Arbitration Act of 1927 or through court action, at the option of K&S[.] ” Employment Agreement, ¶ 10. O n March 17, 2016 , the trial court sustained in part and overruled in part the pr eliminary objections , remanding the matter to arbitration pursuant to Paragraph 10 of the Employment A greement.J

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Importantly, t he trial court’s March 17, 2016 order required Haviland and K&S to each appoint an a rbitrator and provid e notice to all parties of the individual select ed within 20 days of the date of the order. The order further provided that the named arbitrators for each party were to confer and select

a third, neutral arbitrator within 45 days of the date of the order

. The order stated that if the named arbitrators were unable to agree upon a neutral arbitrator, the trial court would appoint one. After both parties selected their arbitrators, the arbitrators convened, but were unable to agree on a third, neutral arbitrator. Over the course of the next several months, the trial court successively appointed three neutral arbitrators , each of wh om recused themselves from the case. Two of the arbitrators left the case after Haviland sought their recusal , and the other arbitrator recused on his own accord. Thereafter, the trial court appointed
Bernstein. On January 13 and 19, 2017, in response to Bernstein’s request for information relating to the dispute, Haviland asked Bernstein to disclose any conflic ts of interest prior to taking any action in this matter. On January 20, 2017, Bernstein responded by email that he was a retired judge from the Court of Common Pleas of Philadelphia County, that he had presided over cases involving Haviland ’s counsel and other cases involving K&S , and that since his retirement he had not arbitrated any disputes involving either of the parties. Haviland ’s Petition to Disqualify/Enjoin Bernstein, 4/20/17, Exhibit 5J

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(Bernstein Email, 1/20/17). Thus, Bernstein stated that h e did not believe that any conflict existed that would preclude him from serving as a neutral arbitrator in this case. Id. On February 18, 2017, however , Bernstein sent Haviland another email in which he discussed a potential conflict relating to his emp loyment as an adjunct professor at the Thomas R. Kline School of Law at Drexel University. Thomas Kline (Kline), one of the named partners at K&S , made a large donation to the law school, which was renamed in his honor. In the February 18, 2017 email to Haviland’s counsel , Bernstein stated:

By email dated January 20, 2017, a copy of which is below, I advised that there are no conflicts that would prohibit my participation in this matter. I can only imagine that your client is concerned because I am [ sic ] adjunct professor at the Thomas R. Kline [S]chool of [L] aw. I believe that fact is commonly known and is contained on my C.V. which can be publicly found on my website www.judgebernstein.org. W hat may not be common knowledge is I have been teaching at Drexel [S] chool of Law before its name was changed and when it was known as the Earle Mack [S]chool of [L] aw. Please advise your clients that there are no conflicts that would prohibit my participation as an arbitrator in this matter. Id. at Exhibit 6 (Bernstein Email, 2/18/2017). On March 9, 2017, in a letter to Bernstein, Haviland formally motioned for Bernstein’s recusal based on his employment at the Thomas R. Kline School of Law at Drexel University. Id. at Exhibit 7 (Letter, 3/9/17). Haviland asserted that Bernstein was “consciously or subconsciously” predisposed toJ

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ruling against him because Kline had made a substantial gift to Bernstein’s employer , was the Chairman of the Board of the law school, and because Bernstein was under the s upervision of Gwen Roseman Stern, the Director of Trial Advocacy at the law school and the wife of an attorney at K&S

. Id. On April 3, 2017, by email, Bernstein denied Haviland ’s motion for disqualification and recusal. Bernstein explained: “ I have no d oubt of my ability to participate as a neutral arbitrator on this panel of arbitrators to decide the issues presented solely on the basis of the law and evidence.” Id.
at Ex hibit 9 (Bernstein Email, 4/3/ 17). Bernstein maintained that he has taught at the law school si nce long before it was renamed t he Thomas R. Kline School of Law and that Kline has no involvement with his teaching at the school. On April 20, 2017, Haviland filed with the trial court a petition for a preliminary or special injunction to enjoin and disqualify Bernstein from acting as the neutral arbitrator . In addition to the aforementioned alleged potential conflicts, Haviland argued that Bernstein must recuse for failing to make complete and timely disclosures of the alleged disquali fying conflicts of
interest. On May 12, 2017, the trial court denied Havilan d ’s petition to disqualify Bernstein. The trial court concluded that “a reasonable person would not question Bernstein’s ability to be impartial[.]” Trial Ct. Op., 7/17/17, at 8 . The court explained:

Bernstein is recently retired from sitting on the bench for the Court of Common Pleas of Philadelphia and isJ

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- familiar and aware of his duty to be impartial. He was appointed by this court for his experience and reputation for integ rity and fairness. Bernstein is an adjunct professor and does teach two courses at the Thomas R. Kline School of Law, Advanced Evidence and Pennsylvania Practice. The courses were designed by Bernstein at the request of the then Dean Roger Denis. These courses are the same two courses he taught when the law school was known as [the] Earle Macke School of Law. Kline had nothing to do with Bernstei n’ s position at the law school and continues to have no involvement in Bernstein’s teaching of these courses. Similarly, as for the allegations that Bernstein is supervised by the wife of an attorney employed by [ K&S] , there is no evidence that Bernstein and Ms. Stern have any contact with one another at the law school. Based on the foregoing, one may not reaso nably conclude that Bernstein will be influenced in favor of defendant. Id. at 7

- 8. On May 23, 2017, Haviland filed a timely notice of appeal. 2 On August 3, 2017, K&S responded by filing an application to dismiss on the basis that Haviland had filed an ap peal from a non

- appealable order. On September 14, 2017, this Court, by per curiam order, denied the applicatio n without prejudice
to K&S’s right to raise the issue before the merits panel. On appeal, Haviland presents the following issue for our review: Whether the trial court erred in improperly and reflexively denying [Haviland] ’s Petition for Injunctive Relief, without a hearing or argument, where ample evidence demonstrated the need to enjoin this

_________________ __________ ______ ____ _______ 2 The trial cou rt did not order Haviland to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. The trial court, however, did author an opinion in support of its decision.J

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- arbitration from proceeding with [Bernstein] as the pu rported “neutral arbitrator,” because of his significant conflicts of interest, which he repeatedly resisted even disclosing. Haviland’ s Brief at 2. Before disc ussing the issue raised by Haviland , we address K&S ’s application to dismiss this appeal, as it implicates our jurisdiction

. K&S argues that we should quash Haviland ’s appeal as interlocutory. In support of this argument, K&S first asserts that the trial court’s order denying Haviland ’s petition to disqualify Bernstein from acti ng as the neutral arbitrator is an interlocutory order that is not appealable as of right or as a collateral order. In his answer, Haviland respond s by arguing that because he is appealing from an order denying a petition to enjoin Ber n stein from acting

a s the neutral arbitrator, the order is appealable as of right under Rule 311(a)(4) of the Pennsylvania Rules of Appellate Procedure as an order denying an injunction

. This Court may 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.” Co mmerce Bank v. Kessler , 46 A.3d 724, 728 (Pa. Super. 2012), quoting Stahl v. 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. ,J

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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 May 12, 20 17 order denying Haviland ’s petition to disqualify does not constitute a final order as defined by Rule 341(b) . The order plainly does not dispose of all claims and all parties, as Haviland sought the recusal of
Bernstein prior to the arbitration award in this case

. Haviland do es not dispute this assessment. Rather, Haviland assert s that the order is appealable under Rule 311(a), which governs appeals as of right from interlocutory orders, as an order denying an injunction. Rule 311(a)(4) permits an int erlocutory appeal as of right taken from an order “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions.” Pa.R.A.P. 311(a)(4). Haviland titled his motion seeking the recusal of Bernstein as foll ows: “Plaintiff Haviland’s Petition For A Preliminary Or Special Injunction To Enjoin And Disqualify Mark I. Bernstein From Acting As The ‘ Neutral ’ Arbitrator.” Petition to Enjoin and Disqualify, 4/20/17. Although Haviland asks this Court
to interp ret h is petition to enjoin and disqualify as a request for injunctive relief, our review of the petition reveals that Haviland sought nothing more than for the trial court to order the disqualification or recusal of Bernstein as arbitrator. See id. This Court has held that “[f]or purposes of considering timeliness of appeals we must look beyond the title to the contents andJ

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substance of the motion in order to characterize it.” Maliszewski v. Rendon , 542 A.2d 170 n.1 (Pa. Super. 1988); see also Bucks Orthopaed ic Surgery Assocs., P.C. v. Ruth , 925 A.2d 868, 871 (Pa. Super. 2007); Walt Med. v. Electro - Nucleonics , 583 A.2d 492, 494 n.2 (Pa. Super. 1990); Fortune/Forsythe v. Fortune , 508 A.2d 1205, 1208 (Pa. Super. 1986). Accordingly , we characterize Haviland ’s pe tition to enjoin and disqualify as a motion for the recusal of Bernstein as the neutral arbitrator in this matter

. T he question of whether we have jurisdiction to review the merits of Haviland ’s appeal turns on whether an order denying a pre - award petitio n to disqualify an arbitrator is an appealable non

- final order. Although we have been unable to locate a case directly on point, we conclude that the case law addressing the interlocutory nature of pre

- trial recusal s of trial judges is persuasive and inst ructive. See Sheehan v. Nationwide Ins. Co. , 779 A.2d 582, 584

- 85 (Pa. Super. 2001) (analogizing the recusal of arbitrator to the recusal of a trial judge); see also 231 Pa. Code § 1302(e) (stating that any arbitrator “who would be disqualified for any reason that would disqualify a judge under the Code of Judicial Conduct shall immediately withdraw as an arbitrator”). In support of its position that we should dismis s Haviland ’s appeal as interlocutory, K&S relies on this Court’s decision in In re Bridgeport Fire Litigation , 51 A.3d 224 (Pa. Super. 2012)

. In Bridgeport Fire , the appellants filed a motion seeking the recusal of the trial judge presiding overJ

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their cla ss action litigation, which the trial court denied after its approval of the settlement agreements

. Id. at 227

- 28. On appeal from that order, this Court issued a rule to sho w cause as to why the appellant s ’ appeal should not be quashed as interlocutory. Id. at 229. This Court noted that the trial court’s

“ order de nying [Certain Class Plaintiffs’ ] motion for recusal appears to be premature since an order on a motion for recusal is an interlocutory order for purposes of an appeal .” Id. The appellants as serted that if the appeal from the order denying their motion for recusal was not ripe for review, it would never be reviewable because all of the issues in the case had been resolved. Id. This Court initially agreed with the appellants that the case rep resented “a ‘somewhat anomalous situation’ in that the trial court’ s order denying the motion to recuse was not filed until after final judgment was entered in this case and the appeals from the final judgment and all prior interlocutory orders were decide d. ” Id. The panel observed, however, that there were still several motions relating to the settlement of the class action lawsuit awaiting the trial court’s determination. Id. at 230. Thus, this Court held that the appropriate time for review of the or der denying the appellants’ motion for recusal was after the resolution of those motions and quashed the appeal

. Id. at 230

- 31. 3

_________________ __________ ______ ____ _______ 3 Haviland asse rts that Bridgeport Fire was an appeal from an order denying an injunction, and as such, this Court concluded that it was immediatelyJ

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Indeed, t his Court has routinely held that a pre - trial motion seeking to recuse a judge from further pr oceedings is not a final order. See In re Bridgeport Fire Litig. , 51 A.3d at 229 (“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, 5 11 (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 , this Court has stated that an appeal from the denial of a pre

- tri al motion to recuse does not fall w ithin any of the categori es listed in Rules 311 (Interlocutory Appeals as of Right) or 313 (Collateral Orders) 4 of the Pennsylvania Rules of Appellate Procedure and that consequently, appeals from such orders are premature

. Krieg , 743 A.2d at 511.

_________________ __________ ______ ____ _______ appeal able as of right. Answer to Application to Dismiss, 8/21/17, at 11. Clearly, as discussed above, this is not what occurred in Bridgeport Fire

.
4 Rule 313 provides:

(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court. (b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the cl aim will be irreparably lost. Pa.R.A.P. 313.J

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T herefo re, we hold that an order denying a motion seeking the recusal or disqualification of an arbitrator , as with an order denying the recusal of a trial judge, is not a final order or an interlocutory order appealable as of right

or a collateral order. This conclusion comports with Section 7320 of the Uniform Arbitration Act, which governs appeals from court orders in arbitration matters. Section 7320 provides as follows:

(a) General rule. -- An appeal may be taken from: (1) A court order denying an ap plication to compel arbitration made under section 7304 (relating to proceedings to compel or stay arbitration). (2) A court order granting an application to stay arbitration made under section 7304(b). (3) A court order confirming or denying confirmatio n of an award. (4) A court order modifying or correcting an award. (5) A court order vacating an award without directing a rehearing. (6) A final judgment or decree of a court entered pursuant to the provisions of this subchapter. (b) Procedure. -- The appeal shall be taken in the manner, within the time and to the same extent as an appeal from a final order of court in a civil action.J

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42 Pa.C.S.A. § 7320. Nowhere does Section 7320 state that, under the Uniform Arbitration Act, an appellant may appeal a n order denying a motion or petition seeking the recusal or disqualification of an arbitrator. 5

_________________ __________ ______ ____ _______ 5 As mentioned above, the Employment Agreement provides that any issue relating to the enforcement of the agreement is to be governed by the Arbitration Act of 1927, 5 P.S. § 161 et seq. The Arbitration Act of 1927 was repealed and replaced by the Pennsylvania Uniform Arbitration Act of 1980 , 42 Pa.C.S.A. §§ 7301

- 7320. Despite the repeal of the 1927 Act , “parties remain free to agree to proceed according to the 1927 Act.” See Pantellis v. Erie Ins. Exch. , 890 A.2d 1063, 1065 (Pa. Super. 2006)

. Nevertheless, this Court has held that the 1980 ACT controls the manner and time for taking arbitration appeals. We explained:

[E]ven if the parties are in agreement that this matter was to be resolved under the 1927 Act, that agreement does not, and cannot, dictate which act governs the taking of an appeal. Section 175 of the 1927 Act has been repealed, and Section 7320 of the 1980 Ac t now controls the manner and time for the taking of statutory arbitration appeals. Cf. Seay v. Prudential Prop [.] and Cas [.] Ins. Co. , [] 543 A.2d 1166 ([Pa. Super.] 1988) (where terms of insurance contract called for arbitration in accordance with provi sions of 1927 Act, 42 Pa.C.S.[A.] § 7320 still governed appealability of order confirming arbitration award). Moreover, a review of 5 P.S. § 175 of the 1927 Act reveals that it closely tracks the language of 42 Pa.C.S.[A.] § 7320. Hence, were we to find that the provisions of the 1927 Act govern the taking of this appeal, we would nonetheless reach the same result infra

. Dunlap by Hoffman v. State Farm Ins. Co. , 546 A.2d 1209, 1210 (Pa. Super. 1988)J

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Accordingly , because the trial court’s May 12, 2017 denying Haviland ’s petition to disqualify Bernstein is not a final order or an interlocutory order appealabl e as of right or a collateral order , 6 we do not have jurisdiction to review the merits , and therefore quash the appeal. Appeal quashed. Case remanded . Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/22/18

_________________ __________ ______ ____ _______ 6 We also note that Haviland did not seek an appeal pur suant to Pennsylvania Rule of Appellate Procedure 312 , which governs interlocutory appeals by permission. See Pa.R.A.P. 312.