In re Appeal of Upper Providence Police Delaware County Lodge 27 Fraternal Order of Police From Award of Arbitrators

502 A.2d 263, 93 Pa. Commw. 272, 1985 Pa. Commw. LEXIS 1462

• Court: Commonwealth Court of Pennsylvania
• Decided: December 4, 1985
• Docket: Appeal, No. 1866 C.D. 1984
• Status: Published

Opinions

•Opinión by

Juoge Rogers,

The questions raised in this appeal are (1) whether a court of common (pleas has jurisdiction to- hear an appeal from the decision of ¡arbitrators in. interest arbitration under Act 111¹ which raises only a question of the legality of the ¡award ¡and (2) if the common ■pleas court in this case had jurisdiction, whether it correctly ¡held that the arbitrators’ decision was contrary to law.²

During the year 1982, the appellant, Upper Providence Township', Delaware 'County (township), and the appellee, Upper Providence Police Delaware County Lodge No. 27, Fraternal Order of Police (police), engaged in collective bargaining’ pursuant to Act 111 for a collective bargaining agreement effective January 1,1983. An impasse was reached within the meaning of ¡Section 4(¡a) of Act 111, 43 P.S. §217.4(a), concerning the legality of an existing retirement benefit which had been conferred on police persons beginning in 1976 by ¡several earlier agreements and one arbitration award. The disputed provision gave retirees “the full hospital and medical benefits in effect at the time of retirement (whether for ¡service or disability) to continue ¡annually after retirement ¡until death; these benefits to be offset by any similar benefits received from the government ¡or any other ¡employment. ’ ’

The township ’s position was and is that the provision is illegal. The position of the ¡police seems to have been that the township, having agreed to the provision should be estopped from asserting its illegality; the position of ,the police now is that the provision is perfectly legal. The parties agreed “to ¡submit the issue of illegality of this benefit for. ¡consideration of the Board of Arbitrators.”

By award made in late December, 1982, the arbitrators by vote of two to one continued the hospital and medical' benefits during the ¡calendar year 1983 but declared that they should not ,he in ¡effect during the calendar year 198.4. .The parties agree that the ¡decision .of the majority .of the arbitrators was that the provision ¡of hospital and medical benefits was illegal.

The police appealed the award to the court of common ¡pleas which first dismissed it for want of jurisdiction; but later, on application of the police, reconsidered and thereafter held that it had jurisdiction and that the arbitrators’ award ¡dis,alio,wing the disputed provision as illegal was contrary to law.

The township has appealed, contending, as we have first noted, that the court’s final decision that it had jurisdiction was error, as was ¡also the court’s ¡decision that hospital and medical benefits for retired police officers of Upper Providence Township are no.t contrary to law.

■Section 7(a) of Act 111, 43 P.S. §217.7(a), provides that ‘ ‘ [t]he determination of the majority of the board of arbitration . . . shall be final on the issue or issues in ¡dispute and ¡shall be binding upon the public employer ¡and the policemen or firemen involved” and that “ [n]o appeal therefrom ¡shall be allowed to any court. ’ ’ The meaning of these ¡provisions was explored in the Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969). The Pennsylvania Supreme Court there held that, Act 111 having declared awards of boards of arbitrators to be final and having forbidden appeals to any court, the ¡City of Washington, Rennsylvania-, ¡did not have the right to' app eal ,an award made by a- hoard of arbitrators ¡to the court of common pleas; ¡that the common pleas court had no jurisdiction of ¡such an appeal'; but that the Supreme ¡Court would entertain the City’s appeal as án ¡application for review in the nature of narrow certiorari pursuant to then Supreme ¡Court Rule 68y2.3 The Supreme' .Court observed that narrow certiorari permits review only of (.1) a question of jurisdiction, (¡2) the regularity of the proceedings, (3) questions of excess in the exercise of powers, and (4) constitutional questions; but then declared ¡that the ¡direction by arbitrators that the City perform .an illegal act, las was alleged, would be in excess of the powers, making it appropriate for the court to review the ¡disputed provision award for legality. The court concluded upon examination ¡that the provision was illegal and nullif held it.

The appellant township relies on Washington Arbitration Case, positing that, having in its appeal below raised ¡only ¡the question of the legality of the arbitrators’ award and none of the matters reviewaible on narrow certiorari, the police had no right to appeal . and the court no jurisdiction to' review the award.

The police contend that Act 111 arbitration .awards are now reviewable by ¡courts for errors ¡of law; that Section 501(a) of the Act of ¡October 5,1980, P.L. 693, added the Uniform Arbitration Act to Title 42 of Pennsylvania Consolidated Statutes, as Sub,chapter A of Chapter 73, Arbitration. 42 Pa. O. ¡S. §7302 provides relevantly:

§7302. Scope of subchapter

(d) . Special application.—

.(1) Paragraph (2) shall foe- applicable where: ' .

. (ái) A political subdivisión submits a controversy with, an employee or a representative of employees to arbitration.

' (iii) Any person has been required, .by law to submit or to ¡agree to submit a controversy to ■arbitration pursuant to this subehapter.

■. (2) "Where this paragraph is applicable a .court in reviewing an arbitration award pursuant to this subehapter shall, notwithstanding any other provision of this subehapter, modify or ¡correct the ¡award where the .award is contrary to law and is such that had it been a verdiet of .a jury .the court .wlould -have entered- a different, judgment or. a judgment notwithstanding. the -verdict.

The plain meaning of the quoted parts of Section 7302 is that where a political subdivision -submits a-controversy to ¡arbitration, ,a court in reviewing the arbitration award shall modify or correct the award where it ■is contrary to law. .The Act of 1980 postdates Act 111, and Washington Arbitration Case, interpreting the meaning and effect of that Act’s provisions that arbitrators’ awards shall be final .and that no appeal shall be allowed to ¡any court. Hence, the limitations upon court review imposed ,by Act 111 are overthrown; and courts reviewing arbitration awards under Act 111 may “modify ¡or’ correct the award .where the award is contrary to law and is such that had it been a verdict Of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.”

-The township contends that ¡an Official Source Note to 42 Pa. C. S. §7302 demonstrates that the General- Assembly .did not intend to disturb narrow certiorari ,as the scope of judicial review ,of Act 111 arbitrations. The Note reads:

Compare Act of April 25,1927 (P.L. 381, No. 248), §16 (5 PjS. §176). ¡Subsection (c) is intended as a codification of Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975). Subsection (d) is intended to preserve without change the .scope of review which presently exists over awards of arbitrators such as those appointed under the Act of June 24, 1968 (P.L. 237, No. 111) (43 P.S. §217.1 et ¡seq.). See Act of April 25,1927 (P.L. 381, No. 248), §U(d) (5 P,S. §171 (d)).

We seriously doubt that the authors of ,the Note had review on narrow certiorari in mind in composing this Note because the focus of the Note is ¡on Section 11(d) of the Act of April 25,1927, of which subsection (d) 2 of Section 7302 is a Chinese copy. The case of Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975), referred to in the Note, principally held that the Act of April 25, 1927, had not been repealed by the Arbitration of Claims Act of 1937 so' that the arbitration in that case had been properly conducted under the Act of April 25,1927. Scope of judicial review was not a subject of decision or discussion in that case. Therefore the comment of the Note that Section 3702 was meant as a codification ¡of Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc. suggests that the authors 'meant that it was the Act of April 25, 1927, including Section 11(d), which was thereby codified. Moreover, we are satisfied that the ¡authors ’ comment that subsection (d)'of Section 7302 was “intended to preserve without change the scope of review which presently exists .over awards of arbitrators such as those appointed under” Act 111, ¡was simply unmindful of Washington Arbitration Case; and that by the “scope of review which .presently exists” they meant the scope of review of arbitrations provided by Section 11(d) of the Act of April 25, 1927. This is demonstrated by the citation .of that subsection of that Act which immediately follows the reference to Act 111.

In any case the Statutory .Construction Act at 1 Pa. C. S. §1939 requires that the text of the statute shall control in the event of conflict between its text and comment of any entity which had a hand in drafting it. If the Note does mean to say that narrow certiorari remains the scope of review of awards of arbitrators under Act 111, it is- inconsistent with .the text of Section 7302(d) (2) and must be disregarded.

It is important to write at this point that the central holding of Washington Arbitration Case — that an award of arbitrators under Act 111, or any other Act, may not mandate that a governing body carry out an illegal act — .remains viable. That ruling has been often reaffirmed and emphatically so in Chirico v. Board of Supervisors for Newtown Township, 504 Pa. 71, 74, 470 A.2d 470, 472 (1983).

Having concluded that the trial court had jurisdiction to review the arbitrators’ decision for error of law, we pass now to the township ’s contention that the trial court erred in deciding that the hospital and medical benefits in question were not contrary to law. The township relies on Saffren v. Board of Supervisors for Newtown Township, 65 Del. Co. 310 (1978), and Pottstown Police Association v. Pottstown Borough, 75 D. & C. 2d 331 (1975), the .first holding that certain pension benefits conferred by arbitrators violated a police pension fund limitation imposed on boroughs, towns and townships having more than three police- officers by Section 5 .of the Act of May 29,1956, P.L.- (1955). 1804, as amended', 53 -PjS. §771; and the second -holding that ,similar benefits violated -Section •1202( 37) of the Borough Code, ■ Act .of ■ February 1, 1966, P.L: (1965) . 165.6, as amended, 5.3 P.S. §46202 (37), in effect forbidding the púnchase •• of insurance for retired employees, A provision identical to Section 702, cl. XIII, of the Second Class Township Code, Act of May 1,. 1933, P.L. 103, as amended, 53 P.S. .§65713. Neither of the municipality parties-to those cases .wias .under the governance of a Home Rule Charter adopted pursuant - to the Home Rule Charter and Optional Plans Law, ■ Act of April 13, 1972, P.L. 184, as amended, 53 P.S. §§1-101 .through 1-1309 (HRCOP). .Upper Providence Township is a home rule charter municipality.

.... .Section 302(a) of HRCOP, 53 P.S. §l-302(a), pro- , yides. that home rule- charters shall not give any power contrary to, or in limitation of o-r enlargement of powers granted by acts of the General Assembly which are .applicable to a .class or classes of. municipalities -with respect to ten named subjects. None of these subjects is, and none bears upon,, pension.benefits. In -addition, subsection (ib) of (Section 302 of HRCOP provides that “no,municipality shall , . -. (ii) exercise powers eontrary to, or in limitation or enlargement of powers .granted by acts .of the General Assembly which are ..applicable in. every part of the Commonwealth.’’ Section 5 of the Act of May 29, 1956, limiting the amount of pension benefits to one-half of. retirement, salary, which the Saffren court held rendered the benefit in that case illegal is applicable to boroughs, towns, - and townships maintaining a -police force of three or more full-time members; it is not therefore applicable in every part of the Commonwealth and hence not apposite here. Neither is. the Borough.Code upon which the Pottstown Police Association-ome rested nor the Second Class ¡Township Code, upon which the township relies, applicable in every part of the Commonwealth. On this point, we return to Washington Arbitration Case, where Justice, later Chief Justice, Roberts, .after observing that “ [iw]e are well aware of the fact that the legislative policy precluding the payment of premiums such as those involved in this case [for hospitalization insurance for the families of employees] may be weak indeed,”' cited as evidence of such weakness the Optional Third Class City Charter Law giving “a ¡broader range of power” to that class of municipality. 436 Pa. at 178, 259 A.2d at 443.

The parties have briefed and argued the question of whether .the common pleas court properly declared by dictum that Section 302(b) (iii) of HRCOP, 53 P.S. §l-302(b) (iii), providing that “no municipality shall ... he .given the power [by its charter] to diminish the rights or privileges of any former municipal employe” forbade Upper Providence Township from terminating these benefits which had been conferred by earlier collective bargaining- agreements and arbitration award. This question is not gérmane because the township was not here seeking to ¡diminish benefits of former employees; it was seeking through bargaining to obtain- a contriaot in which .the benefits might he eliminated in future ns unlawful.

Order affirmed.

Order

And Now, this 4th day of December, 1985, the order of -the Court ¡of Common Pleas of Delaware County in ¡the above-captioned matter is affirmed.

Judge Bi/att concurs in the result only.

1 Act of June 24, 1968, ¡P.L. 237, 43 P.S. §§217.1-217.10, popularly known as Act 111, providing policemen; and. firemen the right to bargain collectively with their public ’ employers' concerning the terms and conditions 'of 'their employment. •■'■ '

2 The appellant, Upper Providence Township, Delaware 'County, also submitted a question to the effect that the appellee POP Lodge No. 27, having agreed that the arbitrators should decide the issue of the legality of the provision of hospital benefits to retired police persons, is estopped from appealing the arbitrators’ decision. The appellant cites the case of Fraternal Order of Police v. Mickey, 499 Pa. 194, 452 A.2d 1005 (1982), and the cases cited by Chief Justice Nix in his opinion in that ease. The holding of Mickey was that the public employer Was ©stopped from arguing that a clause of a collective bargaining agreement to which it had agreed was illegal. If the parties to this case had agreed to the provision of hospital and medical benefits to retired police persons ¡should be provided, Mickey would require ¡that the township should be estopped from disavowing it on the ground -of illegality. Here the parties could not and did not agree ¡but submitted the provision to arbitration as Act 111 required.

3 Rule 68% is now emtio died to Ba. R.A.P. 3309.