J-A05018-18

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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.

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 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., McLAUGHLIN, 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 reasons that follow, we quash this appeal.

Haviland and the law firm Kline & Specter (K&S) have been involved in

a long and acrimonious series of disputes. In November 2001, K&S hired 

Haviland, who is an attorney, to manage its newly-formed Class Action 

Department. The employment agreement between Haviland and K&S 

(Employment Agreement) set forth the terms that would control the allocation

of client fees and costs 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 action matter in which he continued to act as 
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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 brandname prescription drug companies known as the PA-AWP and Lupron Blues

litigation.

In September 2006, Haviland left 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 Commonwealth’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-AWP 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

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1

 K&S prevailed against Haviland in the arbitration proceedings 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).
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On September 3, 2008, Haviland commenced this action by filing a 

praecipe to issue a writ of summons. On November 13, 2008, the trial court 

stayed the action pending the outcome of the arbitration proceedings in the 

aforementioned related dispute between the parties. On January 22, 2016,

following the arbitration award in the related 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 provides that the parties agreed to enforce the Employment 

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. On March 17, 2016, the trial court sustained in part and 

overruled in part the preliminary objections, remanding the matter to 

arbitration pursuant to Paragraph 10 of the Employment Agreement.
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Importantly, the trial court’s March 17, 2016 order required Haviland

and K&S to each appoint an arbitrator and provide notice to all parties of the 

individual selected 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 whom 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 

conflicts 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 5 
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(Bernstein Email, 1/20/17). Thus, Bernstein stated that he 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 employment 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. What 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 to 
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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 supervision 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 doubt 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 Exhibit 9 (Bernstein Email, 4/3/17). Bernstein maintained that he has 

taught at the law school since long before it was renamed the 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 disqualifying conflicts of 

interest. On May 12, 2017, the trial court denied Haviland’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 is 
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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 integrity 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 Bernstein’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 reasonably 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 appeal from a non-appealable order. On September 14, 

2017, this Court, by per curiam order, denied the application 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 

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2

 The trial court 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.
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arbitration from proceeding with [Bernstein] as the 

purported “neutral arbitrator,” because of his 

significant conflicts of interest, which he repeatedly 

resisted even disclosing.

Haviland’s Brief at 2.

Before discussing 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 acting as the neutral 

arbitrator is an interlocutory order that is not appealable as of right or as a 

collateral order. In his answer, Haviland responds by arguing that because he 

is appealing from an order denying a petition to enjoin Bernstein from acting 

as 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.” Commerce 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., 
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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, 2017 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 does not dispute 

this assessment. Rather, Haviland asserts 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 interlocutory 

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 follows: 

“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 interpret his 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 and 
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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 Orthopaedic 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 petition to enjoin and disqualify as a 

motion for the recusal of Bernstein as the neutral arbitrator in this matter.

The question of whether we have jurisdiction to review the merits of 

Haviland’s appeal turns on whether an order denying a pre-award petition 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 recusals of trial judges is

persuasive and instructive. 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 dismiss 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 over 
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their class 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 show cause as to why the appellants’ appeal should not 

be quashed as interlocutory. Id. at 229. This Court noted that the trial court’s 

“order denying [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 asserted 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 represented 

“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 decided.” 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 order denying the appellants’ motion for recusal was 

after the resolution of those motions and quashed the appeal. Id. at 230-31.3

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3

 Haviland asserts that Bridgeport Fire was an appeal from an order denying 

an injunction, and as such, this Court concluded that it was immediately 
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Indeed, this Court has routinely held that 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 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, 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, this Court has 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)4 of the 

Pennsylvania Rules of Appellate Procedure and that consequently, appeals 

from such orders are premature. Krieg, 743 A.2d at 511.

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appealable 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 claim will be irreparably lost.

Pa.R.A.P. 313.
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Therefore, 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 application 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 

confirmation 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.
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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 an order denying a motion 

or petition seeking the recusal or disqualification of an arbitrator.5

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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 Act 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 

provisions 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)
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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 

appealable 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

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6

 We also note that Haviland did not seek an appeal pursuant to Pennsylvania 

Rule of Appellate Procedure 312, which governs interlocutory appeals by 

permission. See Pa.R.A.P. 312.