News

February 11, 2009

Court to evaluate arbitration

Concerns raised about naming of neutral arbitrators without notice to defense attorneys.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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WILKES-BARRE – Citing questions that have been raised regarding arbitration hearings in Luzerne County, President Judge Chester Muroski on Tuesday directed Judge Hugh Mundy to review the process.

Muroski said he assigned Mundy, who administers civil court, to examine the process that is utilized to appoint neutral arbitrators to determine whether any revisions are needed.

The ruling was applauded by local attorney Robert Panowicz, who is among several attorneys who have raised concerns that some judges would appoint neutral arbitrators without providing notice to defense attorneys.

Arbitration panels consist of three attorneys who hear evidence and issue rulings in cases involving disputes over the amount of money a person injured in a car crash caused by uninsured or underinsured motorist is entitled to recoup from their own insurance carrier, Panowicz said. They can also hear other contract disputes – such as employment issues – if the contract has an arbitration clause.

In most instances, the plaintiff picks one attorney, the defense picks another and together they decide on a third, neutral arbitrator. If they cannot agree on the neutral, that person would be appointed by the court after a hearing at which both the defense and plaintiff attorneys are present, Panowicz said.

But Panowicz and other attorneys said there were often times when a Luzerne County judge would simply sign an order presented to him by the plaintiff’s attorney without providing the defendant’s attorney a chance to be heard on the matter.

“Sometime defense lawyers don’t even get notice there is a hearing on the motion to appoint an arbitrator,” said Brooks Foland, an attorney with Thomas, Thomas and Hafer in Harrisburg who has handled numerous arbitration cases in Luzerne and Lackawanna counties. “There have been times where the first notice I’d get was when I looked at the court order.”

Foland and Panowicz said that raised serious concerns among defense attorneys because they did not have an opportunity to challenge the appointment if they felt the neutral arbitrator had a conflict that could impact his or her impartiality.

“You want a person to be fair and impartial. If you don’t have any idea who the court is going to appoint, you don’t know that,” Panowicz said.

Panowicz said judges Mark Ciavarella and Michael Conahan – who are scheduled to plead guilty Thursday to charges they accepted more than $2.6 million in kickbacks from the owner and builder of a juvenile detention center – were among the judges who would often appoint arbitrators without allowing the defense to be heard.

Neither Conahan nor Ciavarella has been charged by federal authorities with any wrongdoing in connection with arbitration appointments. Muroski said he is not aware of any criminal investigation regarding that matter.

Panowicz said defense attorneys were suspicious when any judge, not just Conahan or Ciavarella, appointed a neutral arbitrator without the attorney’s input. But there was little they could do to challenge them because Luzerne County, unlike other counties, did not have a set procedure for the appointment of arbitrators. That meant it was left to the judge’s discretion.

“Could a judge be trying to help one of the attorneys who came before him? There were obviously some questions raised on that. The problem has been and continues to be that, without evidence there was any relationship between the judge and the practicing attorney, we can’t make that kind of accusation,” he said.

Panowicz said he’s hopeful Mundy will agree to establish a set procedure. That will ensure each side gets a fair shake, as well as clear away suspicion that has hung over the process for years.

“It’s absolutely a very good thing,” he said. “

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.

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