[J-8-2015] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
MICHAEL G. LUTZ LODGE NO. 5, OF : No. 42 EAP 2014
THE FRATERNAL ORDER OF POLICE, :
: Appeal from the Order of
Appellant : Commonwealth Court entered on
: January 2, 2014 at No. 114 CD 2013,
: affirming the Order entered on
v. : December 27, 2012 in the Court of
: Common Pleas, Philadelphia County,
: Criminal Division at No. 2165 October
CITY OF PHILADELPHIA, : Term 2011.
:
Appellee : ARGUED: May 5, 2015
DISSENTING OPINION
MR. JUSTICE EAKIN DECIDED: December 21, 2015
The instant question is whether notification procedures were reasonably
subsumed within the issues properly submitted to the arbitration panel. That Panel,
then the Court of Common Pleas, and then a majority of the Commonwealth Court en
banc all reasoned that the manner of notification was subsumed, and thus properly
submitted and addressed by the Panel, in response to challenges to implementation of
the 2009 Award. As I cannot find such a conclusion was unreasonable, I would affirm.
The Majority dismisses the lower courts’ “somewhat technical reasoning” that
the manner of notification was at issue in 2009. See Majority Slip Op., at 18. The Panel
explicitly retained jurisdiction in Section 22 of the 2009 Award, and thus the FOP
properly asked the Panel to resolve issues surrounding implementation of Section 14 of
the award. The FOP’s dissatisfaction with the result claims the relief granted went
beyond the relief requested, but interest arbitration panels are not limited to granting the
relief requested by the party raising the issue. See City of Philadelphia v. Int’l Ass’n of
Firefighters, Local 22, 999 A.2d 555, 565 (Pa. 2010) (explaining arbitration panels’
authority to decide issues presented by parties).
The Majority claims timing of the notification and premium overtime
compensation are entirely distinct from the manner of notification and thus not
reviewable by the Panel. Certainly timing and manner are not synonymous, but neither
are they unrelated. The 2009 Award explicitly provided consequences for failing to
comply with the policy on time and manner of notice, demonstrating the two issues are
intertwined. Further, implementation of the 2009 Award’s new residency requirements,
allowing certain officers to live outside the city limits, would have an obvious effect on
the logistics of notice. If the Department were now obliged to send uniformed officers to
wherever an officer lives, the operational and financial costs to the City could be
significant; without modification, it could mean taking officers off patrols to drive outside
the City simply to hand-deliver court notices.1 In this day of technological sophistication
and ubiquitous cell phones and messaging, the manner of notice, particularly given the
bargained-for expansion in geographic distribution of those to whom notice is given,
seems a proper matter for the Panel — I cannot find that connection unreasonable.
In my view, the Panel did not exceed its authority in determining the manner of
notification because the question is logically subsumed by issues regarding
implementation of the 2009 Award. Accordingly, I would affirm the Commonwealth
Court’s order, and must respectfully dissent.
1 If, in the alternative, the police department were to unilaterally use non-uniformed
personnel in place of uniformed officers for such deliveries, the FOP could challenge
such a change as improper removal of bargaining unit work through an unfair labor
practice charge, as delivery by uniformed personnel has long been the practice.
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