Appeals of 3020-a: the Case of Jay Dubner v New York City Department of Education

A trier of fact in 3020-a, the Arbitrator, has actually two decisions to make in each and every case. One is, what was proven by the preponderance of evidence, and the Department of Education has this burden throughout the hearing. Two, what penalty shall be given for the proven Specifications?

When deciding penalty in 3020-a, all Arbitrators must look at prior history (this is for "progressive discipline") of the employee/Respondent, credibility of witnesses, and what is on the record as evidence. All arbitrators must take into consideration of the educator's remorse for what happened, and what he/she did to undo and bad acts in the past (did he/she go to class for pedagogical improvement? Did he/she go to rehabilitation if there was an alcohol/drug issue?)

Looking through appeals of 3020-a cases which, before 1994, went before the New York State Commissioner of Education, I found the case below, Jay A. Dubner v NYC DOE, where Dubner successfully appealed his termination as too harsh:

Appeal of JAY A. DUBNER from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerning charges brought against him by the Board of Education of the City School District of the City of New York.

Decision No. 13,021

(October 15, 1993)

Neal Howard Rosenberg, Esq., attorney for petitioner

Lawrence E. Becker, Esq., attorney for respondent, Katie R. Raab, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of conduct unbecoming a teacher and prejudicial to the good order, efficiency and discipline of the service, and authorizing termination from his position. The appeal must be sustained to the extent indicated.

Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York ("respondent") for nearly 15 years and, at the time of the events giving rise to this appeal, was serving in a non-classroom position in Community School District No. 17.

On May 8, 1989, petitioner was arrested, and by indictment filed May 25, 1989 in Supreme Court, Kings County, was charged with multiple felony counts of sale and possession of controlled substances. Petitioner was reassigned to a position with the Central Based Support Team (CBST).

On June 19, 1990, petitioner pled guilty in Supreme Court to criminal sale of a controlled substance in the third degree, a class B felony. On July 20, 1990, he was sentenced to an indeterminate sentence of 2 to 6 years in prison.

On November 30, 1990, the Chancellor submitted a charge to the board of education reciting the above conviction, alleging that it constituted conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service, and that it constituted substantial cause rendering petitioner unfit to continue as an employee. On December 5, 1990, the board found probable cause for such charge.

A hearing panel convened on May 24, 1991, pursuant to Education Law '3020-a, and heard testimony for a total of 8 days, concluding on February 27, 1992. The panel produced a record of approximately 800 pages of testimony. On April 1, 1992, the panel found petitioner guilty of the charge and authorized his dismissal, by a vote of 2-1. Petitioner was dismissed by formal action of the board of education on May 20, 1992.

This appeal was commenced on June 18, 1992, by service of the petition upon respondent board of education, and petitioner requested a stay of his dismissal. That stay was denied on June 30, 1992.

There can be little doubt as to the seriousness of the underlying offense. The superseding indictment charges petitioner with criminal possession and sale of cocaine on two separate occasions (both sales would be class A-II felonies punishable by 8 1/3 years to life in prison) and criminal possession of cocaine on a third occasion. Petitioner pled guilty to a single count of criminal sale of a controlled substance in the third degree, a class B felony, and received a sentence of 2 to 6 years in prison.

Petitioner contends that he was addicted to cocaine prior to his arrest, that his crime was directly related to his addiction and that he entered into a program of treatment. He claims that his treatment was successful, he has been successfully rehabilitated and has indeed performed his assigned work duties with respondent following his rehabilitation. He further claims that his dismissal violates '504 of the Rehabilitation Act of 1973. Petitioner asks that I reverse the hearing panel's finding as to guilt, and that I grant such other relief as may be proper under the circumstances.

Respondent contends that the disciplinary proceeding was in all respects correctly conducted and the penalty of termination of services is proper. Respondent claims that because of substantial adverse publicity at the time of petitioner's arrest and sentencing, it would be impossible for petitioner to discharge the duties of a teacher. Respondent further claims that the record does not establish that petitioner was addicted prior to his arrest, nor that his condition was in any way caused by addiction. Respondent further contends that the Rehabilitation Act is not applicable to the circumstances of this case.

Petitioner asks that I reverse the hearing panel's finding as to guilt. I decline to do so. There is no question that petitioner is guilty of the underlying criminal charge. The record contains both the minutes of petitioner's plea on June 19, 1990, to a class B felony and a certificate of disposition duly executed by the Supreme Court Clerk. Conviction of this felony clearly constitutes conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service. Accordingly, there is no basis for reversing the panel's determination as to guilt.

With respect to the issue of penalty, Appeal of Board of Education of Community School District 19 (32 Ed Dept Rep 354), decided while this appeal was pending, is on point. In that case, I set forth a number of factors which must be considered when a respondent claims that his criminal offense was a result of an alcohol or drug-related problem. The factors are: (1) whether or not the drug-related arrest and conviction that formed the basis of the charges were the manifestation of respondent's substance abuse problem; (2) whether or not respondent has acknowledged his problem; (3) whether or not respondent has successfully undergone treatment for his problem; and (4) whether or not respondent demonstrates a capacity to carry out his duties due to his progress in the treatment program (32 Ed Dept Rep 354 at p. 357).

With respect to the first question, whether or not petitioner was addicted to drugs prior to his arrest, the record contains the testimony of fourteen persons, including petitioner. The critical time period, of course, is the time immediately prior to the arrest. With respect to that time period, only petitioner testified directly, and respondent produced no rebuttal of his claim that he was addicted then. Although petitioner arguably failed to produce certain relevant witnesses who could have bolstered his testimony, there is some question whether those witnesses were within his control, and I, therefore, decline to draw any unfavorable inference because of their failure to testify. Accordingly, there is sufficient evidence in the record to convince me that petitioner had a substance abuse problem prior to his arrest.

With respect to the second factor discussed in Community School District 19, the record offers sufficient evidence that petitioner acknowledged his drug addiction. On May 31, 1989 following his May 8, 1989, arrest, petitioner voluntarily entered a six-week inpatient drug treatment program at Gracie Square Hospital. Although petitioner admits initially denying he had a substance abuse problem, he later fully acknowledged and accepted his condition. This was validated by the testimony of a physician and a licensed drug counselor. Both testified that such denial is typical of patients new to recovery. According to these professionals, recovering addicts have a tendency to deny the existence of a substance abuse problem during the early stages of recovery in an attempt to minimize the severity of their condition. Once petitioner accepted his condition, he began to participate actively in treatment.

Petitioner makes the claim that his treatment has been successful, the third factor set forth in Community School District 19. That treatment consisted of not only a six-week inpatient drug treatment program, but participation for one year in an after-care program at the same hospital as an outpatient. During his incarceration, which lasted approximately 3 1/2 months, petitioner was involved in the Alcohol and Substance Abuse Treatment (ASAT) program sponsored by the New York State Department of Corrections, which consisted of group therapy and participation in Narcotics Anonymous meetings. Petitioner maintains that he attends Cocaine and Narcotics Anonymous meetings three or four times per week. As of January 1992, petitioner was enrolled in courses to become a drug and alcohol substance abuse counselor to assist other addicts in recovery. Based upon these facts, petitioner has demonstrated an earnest desire to be rehabilitated.

With respect to the question of petitioner's present capacity to carry out his duties, the record contains testimony from four of petitioner's current colleagues and supervisors in the administrative offices of the board of education. Witnesses referred to petitioner as an excellent employee. He was further described as very good at his job and on task prior to and following his May 8, 1989 arrest. Additional testimony revealed that petitioner performed duties as required, was very organized, focused, rarely absent and arrived for work on time. According to a supervisor, prior to petitioner's arrest, petitioner trained an assistant and overall, left the office in a better condition than he found it.

Following his May 1989 arrest and subsequent job reassignment in September 1989, petitioner testified he was only absent once. Petitioner further reveals that he worked when it was not required, often stayed late and worked on holidays and during summer vacations. At his position with the CBST, petitioner carried a case load approximately double that of his co-workers and also was assigned to special projects.

The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry out professional responsibilities (Matter of Bott v. Bd of Educ., 41 NY2d 265). After careful review of the lengthy testimony and numerous exhibits, I am unable to conclude that petitioner is unfit to teach. Moreover, petitioner has confronted his drug addiction and has, thus far, demonstrated success in overcoming it. Finally, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.

With respect to the nature of the penalty imposed, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 665, affd 56 NY2d 700; Shurgin v. Ambach, supra). It is within the Commissioner's authority to reduce a penalty (Matter of Board of Education of the Center Moriches UFSD, 22 Ed Dept Rep 113). In that case, the Commissioner determined that despite a panel's finding of incompetence, termination was not necessary as recommended by the hearing panel. In Appeal of the Board of Education of the Malverne UFSD (29 Ed Dept Rep 363, affd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371), I substituted my judgment for that of the panel, reducing the penalty imposed.

In the case before me, the panel has recommended that petitioner be terminated. However, the record supports the conclusion that petitioner suffered from drug addiction prior to his arrest, acknowledged his problem, sought treatment that has been successful and is capable of carrying out his professional responsibilities. Termination of petitioner's services under these circumstances would be unduly harsh.

I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of his actions and to serve as a deterrent to any future similar actions.

Finally, petitioner's reliance on '504 of the Rehabilitation Act (20 U.S.C. '794) is misplaced. Assuming without deciding that petitioner qualifies as an "individual with a disability" as defined by 20 U.S.C. '706(8), and that '794 is otherwise applicable, it is clear that the disciplinary action taken here by respondent was not taken "solely by reason of his or her disability." Disciplinary action was taken as a result of petitioner's commission of a class B felony. Where an employee is disciplined for criminal activity, the Rehabilitation Act has no application (Richardson v. United States Postal Service, 613 F. Supp. 1213; Franklin v. United States Postal Service, 687 F. Supp. 1214). Where a teacher commits a crime, one may also question whether that teacher is an "otherwise qualified individual" for purposes of 20 U.S.C. '794, but such speculation is unnecessary given the circumstances of the case.

In view of this disposition, it is unnecessary to consider or discuss the other contentions of the parties.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner be suspended without pay for a period of two (2) years, commencing May 20, 1992, and terminating May 19, 1994.

END OF FILE

Arbitration Defined

The submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award—a decision to be issued after a hearing at which both parties have an opportunity to be heard.

Arbitration is a well-established and widely used means to end disputes. It is one of several kinds of Alternative Dispute Resolution, which provide parties to a controversy with a choice other than litigation. Unlike litigation, arbitration takes place out of court: the two sides select an impartial third party, known as an arbitrator; agree in advance to comply with the arbitrator's award; and then participate in a hearing at which both sides can present evidence and testimony. The arbitrator's decision is usually final, and courts rarely reexamine it.

Traditionally, labor and commerce were the two largest areas of arbitration. However, since the mid-1970s, the technique has seen great expansion. Some states have mandated arbitration for certain disputes such as auto insurance claims, and court decisions have broadened into areas such as Securities, antitrust, and even employment discrimination. International business issues are also frequently resolved using arbitration.

Arbitration in the United States dates to the eighteenth century. Courts frowned on it, though, until attitudes started to change in 1920 with the passage of the first state arbitration law, in New York. This statute served as a model for other state and federal laws, including, in 1925, the U.S. Arbitration Act, later known as the Federal Arbitration Act (FAA) (9 U.S.C.A. § 1 et seq.). The FAA was intended to give arbitration equal status with litigation, and, in effect, created a body of federal law. After World War II, arbitration grew increasingly important to labor-management relations. Congress helped this growth with passage of the Taft-Hartley Act (29 U.S.C.A. § 141 et seq.) in 1947, and over the next decade, the U.S. Supreme Court firmly cemented arbitration as the favored means for resolving labor issues, by limiting the judiciary's role. In the 1970s, arbitration began expanding into a wide range of issues that eventually included prisoners' rights, medical malpractice, and consumer rights. In 2003, all 50 states had modern arbitration statutes.

Arbitration can be voluntary or required. The traditional model is voluntary, and closely linked to contract law: parties often stipulate in contracts that they will arbitrate, rather than litigate, when disputes arise. For example, unions and employers almost always put an arbitration clause in their formal negotiations, known as collective bargaining agreements. By doing so, they agree to arbitrate any future employee grievances over wages, hours, working conditions, or job security—in essence, they agree not to sue if disagreements occur. Similarly, a purchaser and a provider of services who disagree over the result of a business deal may submit the problem to an arbitrator instead of a court. Mandatory arbitration is a more recent phenomenon. States such as Minnesota, New York, and New Jersey have enacted statutes that force disputes over automobile insurance claims into this forum. In addition, courts sometimes order disputants into arbitration.

In theory, arbitration has many advantages over litigation. Efficiency is perhaps the greatest. Proponents say arbitration is easier, cheaper, and faster. Proponents also point to the greater flexibility with which parties in arbitration can fashion the terms and rules of the process. Furthermore, although arbitrators can be lawyers, they do not need to be. They are often selected for their expertise in a particular area of business, and may be drawn from private practice or from organizations such as the American Arbitration Association (AAA), a national non-profit group founded in 1926. Significantly, arbitrators are freer than judges to make decisions, because they do not have to abide by the principle of stare decisis (the policy of courts to follow principles established by legal precedent) and do not have to give reasons to support their awards (although they are expected to adhere to the Code of Ethics for Arbitrators in Commercial Disputes, established in 1977 by the AAA and the American Bar Association).

These theoretical advantages do not always hold up in practice. Even when efficiency is achieved, some critics argue, the price is a lower quality of justice, and it can be made worse by the difficulty of appealing an award. The charge is frequently made that arbitration only results in "splitting the baby"—dividing awards evenly among the parties. The AAA roundly rejects this claim. Yet even arbitrators agree that as arbitration has become increasingly formal, it sometimes resembles litigation in its complexity. This may not be an inherent problem with the process as much as a result of flawed use of it. Parties may undermine arbitration by acting as lawyers do in a lawsuit: excessively demanding discovery (evidence from the other side), calling witnesses, and filing motions.

Ultimately, the decision to use arbitration cannot be made lightly. Most arbitration is considered binding: parties who agree to arbitration are bound to that agreement and also bound to satisfy any award determined by the arbitrator. Courts in most jurisdictions enforce awards. Moreover, they allow little or no option for appeal, expecting parties who arbitrate to assume the risks of the process. In addition, arbitration is subject to the legal doctrines of Res Judicata and Collateral Estoppel, which together strictly curtail the option of bringing suits based on issues that were or could have been raised initially.

Res judicata means that a final judgment on the merits is conclusive as to the rights of the parties and their privies, and, as to them, operates as an absolute bar to a subsequent action involving the same claim, demand, or Cause of Action.Collateral estoppel means that when an issue of ultimate fact has been determined by a valid judgment, that issue cannot be relitigated between the same parties in future litigation. Thus, often the end is truly in sight at the conclusion of an arbitration hearing and the granting of an award.

The FAA gives only four grounds on which a court may vacate, or overturn, an award: (1) where the award is the result of corruption, Fraud, or undue means; (2) where the arbitrators were evidently partial or corrupt; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing or hear pertinent evidence, or where their misbehavior prejudiced the rights of any party; and (4) where the arbitrators exceeded their powers or imperfectly executed them so that a mutual, final, and definite award was not made. In the 1953 case Wilkov. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168, the U.S. Supreme Court suggested, in passing, that an award may be set aside if it is in "mani-fest disregard of the law," and federal courts have sometimes followed this principle. Public policy can also be grounds for vacating, but this recourse is severely limited to well-defined policy based on legal precedent, a rule emphasized by the Supreme Court in the 1987 case United Paperworkers International Union v. Misco, 484U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286.

The growth of arbitration is taken as a healthy sign by many legal commentators. It eases the load on a constantly overworked judicial system, while providing disputants with a relatively informal, inexpensive means to solve their problems. One major boost to arbitration came from the U.S. Supreme Court, which held in 1991 that Age Discrimination claims in employment are arbitrable (Gilmer v. Inter-state/Johnson Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26). Writing for the majority, Justice byron r. white concluded that arbitration is as effective as a trial for resolving employment disputes. Gilmer led several major employers to treat all employment claims through binding arbitration, sometimes as a condition of employment.

Arbitration clauses have become a standard feature of many employment contracts. This has led to conflicts concerning the applicability of these clauses when an employee seeks to sue an employer for a Civil Rights violation under Title VII of the Civil Rights Act of 1964, as amended by the civil rights act of 1991. A provision of this law addressed, for the first time, the arbitration of Title VII claims. Section 118 of the act states that the parties could, "where appropriate and to the extent authorized by law," choose to pursue alternative dispute resolution, including arbitration, to resolve their Title VII disputes. Since its enactment, the federal courts have been required to determine what this clause means in practice. For example, in the securities industry disputes arose over whether employers could require their employees to waive their right to bring a Title VII claim in court. The circuit courts of appeal have uniformly ruled that Congress did not mean to preclude compulsory arbitration of Title VII claims.

The Equal Employment Opportunity Commission (EEOC) has contended that employment arbitration clauses do not prohibit the EEOC from filing an action against an employer for a civil rights violation. The Supreme Court agreed in Equal Employment Opportunity Commission v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002), holding that the EEOC could seek damages on behalf of an employee. The commission could also seek injunctive relief to change a company's discriminatory methods. In so ruling, the Court resolved an issue that had divided the circuit courts of appeal.

The employee in question was fired from his job at the Waffle House after he suffered a seizure. He filed a claim with the EEOC, arguing that his rights under Title I of the Americans with Disabilities Act (ADA) had been violated. Under this act, the EEOC has the authority to bring its own enforcement actions against employers and to seek reinstatement, backpay, and compensatory and Punitive Damages on behalf of an employee. Moreover, the ADA makes no exception for arbitration agreements, nor does it even mention arbitration. Therefore, the EEOC, which had not signed an arbitration agreement with the employer, was free to pursue its claims in court. The Court also concluded that the general policies surrounding the ADA, and the EEOC's enforcement arm, justified the pursuit by the EEOC of victim-specific relief. It stated that punitive damages "may often have a greater impact on the behavior of other employers than the threat of an injunction."

The Supreme Court also has validated the enforceability of arbitration awards relating to Collective Bargaining agreements. In Eastern Associated Coal Corporation v. United Mine Workers of American, District 17, 531 U.S. 57, 121S.Ct. 462, 148 L.Ed.2d 354 (2000), the issue involved a labor arbitrator who ordered an employer to reinstate an employee who had twice tested positive for marijuana use. The employer filed a lawsuit in federal court seeking to have the arbitrator's decision vacated, arguing that the award went against a public policy against the operation of dangerous machinery by workers who test positive for drugs.

The Court unanimously agreed that the employee should be reinstated. The Court made it clear that the question was not whether the employee's drug use itself violated public policy, but whether the agreement to reinstate him did so. However, the Court also pointed out that the public policy exception is a narrow one. Based on these principles, the Court ruled that the reinstatement did not violate public policy, as the award did not condone drug use or its impact on public safety. In addition, the arbitrator placed conditions on the employee's reinstatement, which included suspension of work for three months without pay, participation in a substance abuse program, and continued random drug testing. The fact that the employee was a recidivist did not tip the balance in favor of discharge.

Further readings

Crowley, Thomas. 1994. "The Art of Arbitration Advocacy." Hawaii Bar Journal (September).

Culiner, Helen. 1994. "Practical Guidelines for Lawyers Representing Clients in Arbitration Proceedings Today." Dispute Resolution Journal (September).

Deye, James, and Lesly Britton. 1994. "Arbitration by the American Arbitration Association." North Dakota Law Review (spring).

Nolan-Haley, Jacqueline M. 2001. Alternative Dispute Resolution in a Nutshell. 2d ed. St. Paul, Minn.: West Wadsworth.

Ware, Stephen J. 2001. Alternative Dispute Resolution. St. Paul, Minn.: West Wadsworth.

Cross-references

Alternative Dispute Resolution.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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arbitration n. a mini-trial, which may be for a lawsuit ready to go to trial, held in an attempt to avoid a court trial and conducted by a person or a panel of people who are not judges. The arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute. To avoid clogged court calendars the parties often agree to have the matter determined by a panel such as one provided by the American Arbitration Association (which has a specific set of rules), a retired judge, some other respected lawyer, or some organization that provides these services. Usually contract-required arbitration may be converted into a legal judgment on petition to the court, unless some party has protested that there has been a gross injustice, collusion or fraud. Many states provide for mandatory arbitration of cases on a non-binding basis in the hope that these "mini-trials" by experienced attorneys will give the parties a clearer picture of the probable result and lead to acceptance of the arbitrator's decision. (See: arbitrator)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

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arbitration noun adjudgment, adjustment, appraisal, arbitrage, arbitrium, assessment, decision, decree, determining of a controversy, finding, intercession, interjacence, intermediation, intervention, judgment, rapprochement, resolution,settlement
Associated concepts: advisory arbitration, arbiiration agreement, arbitration and award, arbitration award, arbitration clause, arbitration provision, arbitrators, binding arbitration, compulsory arbitration, grievance arbitration, innerest arbitration, proceeding to confirm arbitration award, voluntary arbitration

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See also: adjudication, collective bargaining, intercession, mediation, negotiation, reconciliation

Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton. Used with permission of The McGraw-Hill Companies, Inc.

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ARBITRATION, practice. A reference and submission of a matter in dispute concerning property, or of a personal wrong, to the decision of one or more persons as arbitrators. 
     2. They are voluntary or compulsory. The voluntary are, 1. Those made by mutual consent, in which the parties select arbitrators, and bind themselves by bond abide by their decision; these are made without any rule of court. 3 Bl. Com. 16. 
     3.-2. Those which are made in a cause depending in court, by a rule of court, before trial; these are arbitrators at common law, and the award is enforced by attachment. Kyd on Awards, 21. 
     4.-3. Those which are made by virtue of the statute, 9& l0 Will. III., c. 15, by which it is agreed to refer a matter in dispute not then in court, to arbitrators, and agree that the submission be made a rule of court, which is enforced as if it had been made a rule of court; Kyd on Aw. 22; there are two other voluntary arbitrations which are peculiar to Pennsylvania. 
     5.-4. The first of these is the arbitration under the act of June 16, 1836, which provides that the parties to, any suit may consent to a rule of court for referring all matters of fact in controversy to referees, reserving all matters of law for the decision of the court, and the report of the referees shall have the effect of a special verdict, which is to be proceeded upon by the court as a special verdict, and either party may have a writ of error to the judgment entered thereupon 
     6.-5. Those by virtue of the act of 1806, which authorizes "any person or persons desirous of settling any dispute or controversy, by themselves, their agents or attorneys, to enter into an agreement in writing, or refer such dispute or controversy to certain persons to be by them mutually chosen; and it shall be the duty of the referees to make out an award and deliver it to the party in whose favor it shall be made, together with the written agreement entered into by the parties; and it shall be the duty of the prothonotary, on the affidavit of a subscribing witness to the agreement, that it was duly executed by the parties, to file the same in his office; and on the agreement being so filed as aforesaid, he shall enter the award on record, which shall be as available in law as an award made under a reference issued by the court, or entered on the docket by the parties." 
     7. Compulsory arbitrations are perhaps confined to Pennsylvania. Either party in a civil suit or action,, or his attorney, may enter at the prothonotary's office a rule of reference, wherein be shall declare his determination to have arbitrators chosen, on a day certain to be mentioned therein, not exceeding thirty days, for the trial of all matters in variance in the suit between the parties. A copy of this rule is served on the opposite party. On the day. appointed they meet at the prothonotary's, and endeavor to agree upon arbitrators; if they cannot, the prothonotary makes out a list on which are inscribed the names of a number of citizens, and the parties alternately strike each one of them from the list, beginning with the plaintiff, until there are but the number agreed upon or fixed by the prothonotary left, who are to be the arbitrators; a time of meeting is then agreed upon or appointed by the prothonotary, when the parties cannot agree, at which time the arbitrators, after being sworn or affirm and equitably to try all matters in variance submitted to them, proceed to bear and decide the case; their award is filed in the office of the prothonotary, and has the effect of a judgment, subject, however, to appeal, which may be entered at any time within twenty days after the filing of such award. Act of 16th June, 1836, Pamphl. p. 715. 
     8. This is somewhat similar to the arbitrations of the Romans; there the praetor selected from a list Of citizens made for the purpose, one or more persons, who were authorized to decide all suits submitted to them, and which had been brought before him; the authority which the proctor gave them conferred on them a public character and their judgments were without appeal Toull. Dr. Civ. Fr. liv. 3, t. 3, ch. 4, n. 820. See generally, Kyd on Awards; Caldwel on Arbitrations; Bac. Ab. h.t.; 1 Salk. R. 69, 70-75; 2 Saund. R. 133, n 7; 2 Sell. Pr. 241; Doct. Pl. 96; 3 Vin. Ab. 40; 3 Bouv. Inst. n. 2482.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.