DONALD E. HAVILAND, JR. Appellant
KLINE & SPECTER, P.C.
from the Order Entered May 12, 2017 In the Court of Common
Pleas of Philadelphia County Civil Division at No(s):
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS [*], P.J.E.
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.
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 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
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.
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.
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
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.
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.
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.
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 (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.
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
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).
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 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.
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.
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