IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wage and Policy Committee of the :
City of Arnold Police Department, :
:
Appellant :
:
v. : No. 47 C.D. 2018
: Argued: October 15, 2018
City of Arnold, Pennsylvania :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 9, 2019
The Wage and Policy Committee of the City of Arnold Police
Department (Committee) appeals the December 6, 2017 order of the Westmoreland
County Court of Common Pleas (trial court) affirming an interest arbitration award
under Act 1111 between the Committee and the City of Arnold, Pennsylvania (City).
The Committee contends that the trial court erred in affirming the retroactive
1
The Policemen and Firemen Collective Bargaining Act, Act of June 24, 1968, P.L. 237,
as amended, 43 P.S. §§217.1–217.10 (commonly referred to as Act 111). “Generally, Act 111
establishes a right to collectively bargain concerning the terms and conditions of employment . . .
and is designed to alleviate labor strife in occupations involving critical government functions by,
inter alia, providing an expedited means of dispute resolution, with limited judicial intervention.”
Borough of Ellwood City v. Ellwood City Police Department Wage & Policy Unit, 825 A.2d 617,
621 (Pa. 2003) (citations omitted).
modification of minimum age and years-of-service pension eligibility requirements
declared by the panel majority. For the following reasons, we reverse and remand.
In relevant part, City of Arnold Pension Ordinance No. 3 of 1987
(Ordinance No. 3) provides that each eligible police officer “shall be entitled to
receive a pension benefit provided he has completed at least twenty-five (25) Years
of Continuous Service with the [City] and has attained age fifty-five (55).”
Reproduced Record (R.R.) at 14a. On April 11, 1988, the Committee and the City
adopted a memorandum of understanding (MOU) memorializing the following
agreement between the parties regarding police officer pensions:
The pension rights of Police Officers hired by the [City]
after January 1, 1988, shall be governed by Ordinance No.
3 of 1987, which was enacted on October 1, 1987, and
which complies with the terms and conditions of the
Municipal Pension Plan Funding Standard and Recovery
Act of the Commonwealth of Pennsylvania[, Act of
December 18, 1984, P.L. 1005, as amended, 53 P.S.
§§895-101 – 895-1131 (Act 205)].
R.R. at 20a.
In 1997, the City’s police pension plan was “amended and restated in
its entirety” by City of Arnold Pension Ordinance No. 6 of 1997 (Ordinance No. 6),
effective October 14, 1997. R.R. at 24a. Section 1.13 of Ordinance No. 6 provides:
“Normal Retirement Date” shall mean the date when [an
eligible employee] has attained age 50 and completed 20
years of service for Officers hired prior to January 1, 1988
and for Officers hired since January 1, 1988 when a
Participant has attained age 55 and completed 20 years of
service.
Id. at 25a. Thus, Ordinance No. 6 maintained attaining age 55 as an eligibility
requirement for police officers hired after January 1, 1988, but reduced the years-of-
2
service requirement from 25 to 20 years. Like Ordinance No. 3, Ordinance No. 6
contained provisions concerning compliance with Act 205, including the following:
PROVISIONS TO COMPLY WITH [ACT 205]
* * *
The Chief Administrative Officer of the Pension Plan shall
determine the financial requirements of the Plan on the
basis of the most recent actuarial report and shall
determine the minimum obligation of the [City] with
respect to funding the plan for any given Plan Year. . . .
Prior to the adoption of any benefit plan modification by
the [City], the Chief Administrative Officer of the
[pension plan] shall provide to [City Council] a cost
estimate of the proposed benefit plan modification. Such
estimate shall be prepared by an Approved Actuary, which
estimate shall disclose to [City Council] the impact of the
proposed benefit plan modification on the future financial
requirements of the Plan and the future minimum
obligation of the [City] with respect to the Plan.
R.R. at 36a.
Subsequently, the Committee and the City adopted a collective
bargaining agreement (CBA) covering years 2004 to 2008, followed by a CBA
effective for years 2009-2013.2 Both CBAs provide minimum 50 years of age and
20 years-of-service pension eligibility requirements, and both contain the same
language regarding the incorporation of pension benefits:
All pension benefits not in conflict with any sections of this
Article and adopted by ordinance and in existence at the
time of the signing of this Agreement are incorporated
2
In relevant part, Section 1 of Act 111, 43 P.S. §217.1, provides that policemen employed
by the Commonwealth or a political subdivision of the Commonwealth have the right to bargain
collectively with their public employers concerning the terms and conditions of their employment,
including pensions and other benefits, and the right to settle their disputes in accordance with the
Act.
3
herein by reference into this Agreement including but not
limited to . . . Ordinance No. 3 of 1987, enacted October
1, 1987.
R.R. at 65a-66a, 96a-97a (emphasis added). Ordinance No. 6 was not among the 12
ordinances specifically identified in the CBAs. Id.
After the 2009-2013 CBA expired, it remained in force, as reflected in
an MOU executed by the parties on May 13, 2014,3 while the parties conducted
negotiations for a new CBA. After reaching an impasse, the parties timely and
jointly requested interest arbitration pursuant to Act 111.4
On June 23, 2014, prior to the interest arbitration, the Committee
processed a grievance for retired police officer Michael Ondo. Officer Ondo retired
on a deferred vested benefit and contested the City’s position that he would have to
wait an additional five years to collect his pension benefits. The City contended that
the officer had to attain age 55 and complete 20 years of service per Ordinance No.
6, while the Committee relied upon the CBA, which provided 50/20 age and years-
of-service eligibility requirements.
On August 11, 2014, the Committee requested a list of arbitrators;
thereafter, the parties agreed to place the grievance on hold while they negotiated a
resolution. No agreement was reached, and on April 8, 2016, the Committee again
notified the City that it was proceeding to arbitration. The parties subsequently
3
“Except as stated herein, any and all other terms, conditions, benefits, payments and/or
emoluments, as defined and identified in the current [CBA] as extended until the implementation
of the 2014-2018 [CBA] shall remain in full force and effect as they may relate to any new hire
Police Officer.” R.R. at 109a.
4
“Interest arbitration” is the dispute resolution process utilized when an employer and a
union are unable to agree on the terms of a potential collective bargaining agreement. Michael G.
Lutz Lodge No. 5 of Fraternal Order of Police v. City of Philadelphia, 129 A.3d 1221, 1222 n.2
(Pa. 2015).
4
agreed to place the matter on hold during the pendency of the Act 111 interest
arbitration. Supplemental Reproduced Record (S.R.R.) at 13b-14b.
Both the Committee and the City referenced pension benefits in their
statements of issues in dispute submitted to the arbitration panel for the contract
period beginning January 1, 2016.5 S.R.R. at 157b-59b, 160b-66b. The
Committee’s submission stated that “[t]he Unit is requesting that overtime be
calculated into Pensions.” S.R.R. at 159b. In relevant part, the City specifically
requested the following:
Article XVII, Pensions - Confirm the normal retirement
date for officers prior to January 1, 1988 and since in
accordance with Section 1.13 of the City of Arnold Police
Pension Plan as amended and restatement effective
October 14, 1997 [Ordinance No. 6] and establish the
minimum pension available under the Third Class City
Code[6] for any new hire with all officers contributing to
the maximum amount permitted under the Third Class
City Code.
S.R.R. at 164b (emphasis added). As noted above, Section 1.13 of Ordinance No. 6
defines normal retirement date as the date an officer attains age 55 and has completed
20 years of service.
5
Section 4(a) of Act 111, 43 P.S. §217.4(a) (emphasis added), provides that,
[i]f in any case of a dispute between a public employer and its
policemen or firemen employes the collective bargaining process
reaches an impasse and stalemate, or if the appropriate lawmaking
body does not approve the agreement reached by collective
bargaining, with the result that said employers and employes are
unable to effect a settlement, then either party to the dispute, after
written notice to the other party containing specifications of the
issue or issues in dispute, may request the appointment of a board
of arbitration.
6
Act of June 23, 1931, P.L. 932, as amended, 53 P.S. §§35101-39701.
5
The arbitration panel7 conducted a hearing, held several executive
sessions, and issued an award dated November 16, 2016.8 R.R. at 2a-9a. The panel’s
majority decision includes the following contested provision:
Article XVII, Pensions – The evidence demonstrates that
in 1987, the [City] adopted Ordinance No. 3 of 1987 in
accordance with the requirements in effect under [Act
205] establishing that for any officer hired on or after
January 1, 1988, the officer would need to complete at
least twenty-five (25) years of continuous service with the
employer and must attain the age of fifty-five (55) in order
to be eligible to receive a normal retirement pension
benefit. As a result, Article XVII should be drafted to
more clearly reflect this requirement for officers hired on
or after January 1, 1988 and the superannuation
requirements for those officers shall be a minimum of
twenty-five (25) years of service and a minimum age of
fifty-five [(55)]. Officers hired before January 1, 1988
were unaffected by the Ordinance Amendment and no
changes are intended by operation of this provision of the
Award for officers hired before January 1, 1988.
R.R. at 5a (emphasis added). The award does not address Ordinance No. 6.
The partial arbitrator for the Committee issued a dissent, challenging
the implementation of the 55/25 age and years-of-service pension eligibility
requirements as a unilateral action by the City on a mandatory subject of collective
7
The arbitration panel consisted of William Miller, Jr., Esq., as the neutral arbitrator,
Michael Palombo, Esq., the City-appointed arbitrator, and Ronald Retsch, Esq., the arbitrator
appointed by the Committee.
8
The copy of the arbitration award submitted as part of the record indicates that the City’s
arbitrator signed on October 31, 2016, the Committee’s arbitrator signed on November 4, 2016,
and the neutral arbitrator signed on November 16, 2016. The Committee inconsistently identifies
the award as dated either November 11, 2016 or November 16, 2016 in different portions of its
brief. Committee’s Brief at 7, 26, 35. The trial court opinion identifies the arbitration award as
“dated November 11, 2017.” Committee’s Brief, Appendix A-1 at 6. However, the record reflects
that November 16, 2016 is the correct date. R.R. at 7a.
6
bargaining that was both inconsistent with the terms of the parties’ CBA and
impermissibly retroactive. Id. at 8a.
On December 15, 2016, the Committee filed a petition to review/vacate
the arbitration award with the trial court, asserting that: (1) the arbitrators lacked
jurisdiction to modify pension eligibility requirements retroactively; (2) the
retroactive modification violated the constitutional rights of police officers
employed by the City since January 1, 1988; and (3) the arbitration panel exceeded
its powers under Act 111 as to any modification to the police pension effective prior
to January 1, 2016, which is the effective date for the issues in dispute submitted to
the panel and the effective date of the interest arbitration award. S.R.R. at 4b-26b.
On December 6, 2017, the trial court issued an opinion and order
denying the Committee’s petition. The trial court first noted that the pension benefits
established in Ordinance No. 3 were in accord with Act 205 and agreed to by the
parties in the April 11, 1988 MOU. Additionally, subsequent CBAs between the
parties expressly incorporated Ordinance No. 3 and the MOU by reference. The trial
court noted the Committee’s assertion that Ordinance No. 3 was superseded by
Ordinance No. 6 in 1997 and again by the parties’ CBAs. However, the trial court
determined that no evidence was offered to establish that Ordinance No. 6 complied
with the requirements of Act 205, and none of the CBAs specifically incorporates
Ordinance No. 6. The trial court acknowledged that the jurisdiction of the arbitration
panel was limited to the issues raised, but determined that the City’s letter of
September 10, 2015, “included the pension benefit age/service requirement issue.”
Trial court op. at 5. Thus, the trial court rejected the Committee’s argument that the
arbitration panel exceeded its jurisdiction.
7
The trial court further concluded that the award does not require the
City to perform an illegal act, stating that the award “simply clarifies the minimum
age/service requirements for pension benefits eligibility in light of the statutory
requirements of Act 205, Ordinance No. 3 of 1987, and the MOU of April 11, 1988.”
Trial court op. at 5. According to the trial court, “the evidence established that
[Ordinance No. 3] is the only lawfully executed ordinance” related to the minimum
age and service requirements for pension benefits eligibility. Id. Consequently, the
trial court concluded that an award declaring that the requirements of Ordinance No.
3 govern does not compel the performance of an illegal act.
Finally, the trial court rejected the Committee’s assertion that the
retroactive application of the 55/25 age and years-of-service eligibility requirements
to all hires from January 1, 1988, unconstitutionally impairs the contractual rights of
existing employees. In doing so, the trial court relied on our decision in Millcreek
Township Police Association v. Millcreek Township, 960 A.2d 904, 911 (Pa.
Cmwlth. 2008) (constitutional concerns are raised when there are unilateral changes
in contractual benefits, not changes that are entered by mutual agreement in a
contract or by an Act 111 panel). The trial court stated that the award is not the
result of a unilateral change but, rather, the culmination of a statutory process in
which the Committee actively participated.
On appeal to this Court, the Committee argues that the arbitration panel
exceeded its powers and lacked jurisdiction to issue a modification of pension
benefits retroactively affecting officers hired prior to January 1, 2016. In this regard,
the Committee contends that the issues submitted by the City were too broad to
provide fair notice that it was seeking retroactive modification of pension eligibility
requirements. The Committee further asserts that the arbitration award violated
8
police officers’ constitutional rights by unilaterally and retroactively modifying
officers’ vested pension benefits, and that the arbitration panel exceeded its powers
by issuing an award that compelled the performance of an illegal act.9
The City counters that the arbitration panel did have jurisdiction to issue
its award because the City properly submitted age and length-of-service pension
eligibility requirements as issues for arbitration. The City further argues that the
arbitration award did not unconstitutionally modify police officers’ vested pension
rights retroactively, but merely clarified existing pension eligibility requirements.
Relatedly, the City asserts that, as the mutually agreed-upon result of arbitration, the
award could not constitute a unilateral modification of vested pension rights. The
City also argues that the record does not confirm that Ordinance No. 6 was enacted
in compliance with Act 205.
Initially, we note that, “judicial review of an Act 111 interest arbitration
award is proper only within the limited realm of narrow certiorari.” Michael G. Lutz
Lodge No. 5, of Fraternal Order of Police v. City of Philadelphia, 129 A.3d 1221,
1227 (Pa. 2015) (citation omitted). “Under this narrow certiorari scope of review, a
court may review arbitration awards only to consider questions concerning: (1) the
jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of
the arbitrator’s power; and (4) deprivation of constitutional rights.” Id.
We first address the Committee’s assertion that the arbitration panel
lacked authority to consider an issue that was not raised in the City’s demand for
arbitration. Pennsylvania courts have repeatedly affirmed that an arbitration panel
9
The Committee also asserts that the panel majority impermissibly awarded a modification
of pension benefits without first requiring a cost study pursuant to Act 205. Committee’s brief at
31.
9
exceeds its authority when it addresses issues that were not properly submitted in
accordance with Section 1 of Act 111.10 See, e.g., Michael G. Lutz Lodge No. 5, 129
A.3d at 1230-31; City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge
No. 1, 850 A.2d 846, 853-54 (Pa. Cmwlth. 2004), vacated in part, 886 A.2d 682 (Pa.
2005); Arbitration Between Lower Yoder Township Police & Lower Yoder
Township, 654 A.2d 651, 654 (Pa. Cmwlth. 1995) (en banc).
In Lower Yoder Township, after the parties reached an impasse in their
negotiations for a new collective bargaining agreement, the Lower Yoder Township
Police notified the township of its intent to proceed to arbitration. The notice for
binding arbitration stated that the following issues were in dispute:
(a) Compensation and Wages;
(b) Working Conditions, including maintenance of
cruisers and other police equipment;
(c) Retirement Pensions and Other Benefits;
(d) Shift Differentials;
(f) [sic] Length of Contract;
(g) Department Manning;
(h) Extra Shift Scheduling;
(i) Uniforms;
(j) Weapons;
10
Although this principle has sometimes been framed as an excess of arbitrators’
jurisdiction, our Supreme Court has clarified that:
The distinction between authority and jurisdiction is subtle but
important. As our Court has explained, “Jurisdiction and power are
not interchangeable . . . [j]urisdiction relates solely to the
competency of the particular court or administrative body to
determine controversies of the general class to which the case then
presented for its consideration belongs. Power, on the other hand,
means the ability of a decision-making body to order or effect a
certain result.” [Riedel v. Human Relations Commission of the City
of Reading, 739 A.2d 121, 124 (Pa. 1999)].
Michael G. Lutz Lodge No. 5, 129 A.3d at 1225 n.2.
10
(k) Sick Days;
(l) Any other matters presented to the Board of Arbitrators
that are appropriate under 43 P.S. Sec. 217.1.
654 A.2d at 653. As in the present case, no record was made of the arbitration
proceeding by either party. Id.
The issues on appeal to this Court were whether the arbitrators
exceeded their authority in creating provisions for: (1) a three-year contract term;
(2) a guaranteed wage/no layoff clause; and (3) the creation of the rank of lieutenant.
We began our analysis by observing as follows:
An interest arbitration award under Act 111 can embrace
only those issues which the party requesting arbitration
has specified in the written notice of arbitration. Section
4 of Act 111, 43 P.S. §217.4(a), clearly states that interest
arbitration can be triggered only by a party giving written
notice to the other party “containing specifications of the
issue or issues in dispute . . . .” Section 4 of Act 111 is a
codification of the longstanding common law rule that
arbitrators must decide all the issues presented to them,
and only those issues, Dickerson v. Rorke, 30 Pa. 390
(1858), and “every presumption is made in favor of the
award . . . .” Finch v. Lamberton, 62 Pa. 370, 373 (1870).
See also Carr v. Joyce, 74 D. & C.2d 288, 293-94 (1975)
(applying these principles to Act 111). The importance of
the specification of issues is underscored by Section 5 of
Act 111, 43 P.S. §217.5, which requires that the notice by
the Police under Section 4, specifying the issues, must be
“served upon the head of the governing body of the local
unit involved.” That requirement of formal service attests
to the importance of identifying in advance the issue to be
subject to interest arbitration.
654 A.2d at 653-54.
In Lower Yoder Township, we first concluded that the arbitrators did
not exceed their powers by awarding a three-year contract term because the police
raised the issue of the length of the contract in the notice of binding arbitration. Next,
11
we determined that the guaranteed wage/no layoff clause was a resolution of the
issue of compensation and wages also raised by police in the notice.
However, we concluded that “no issue listed in the notice . . . can fairly
be construed to embrace the creation of a new position of officer rank.” 654 A.2d at
654. We explained that, “[a]s a principle of fairness, Act 111 requires that both
parties have advance notice of the issues which are at stake.” Id. We held that,
because the issue was not raised in the notice of arbitration, “the [arbitrators] had no
jurisdiction under Act 111 to consider creating a new position, and, accordingly, the
arbitrators exceeded their powers in this respect.” Id.
Subsequently, in City of Pittsburgh v. Fraternal Order of Police, Fort
Pitt Lodge No. 1, we considered whether an interest arbitration panel lacked
jurisdiction to issue an award requiring the City of Pittsburgh to continue to offer
current health care providers to union (FOP) members. The trial court granted the
City of Pittsburgh’s petition to vacate that section of the arbitration award, holding
that the arbitrators lacked jurisdiction to address the issue because the FOP had not
given the City of Pittsburgh notice of that demand as required by Section 4(a) of Act
111.
In our analysis, quoting Lower Yoder Township, we again stressed the
importance of the notice provision in Act 111. 850 A.2d at 853.
While the FOP argues that it raised the issue of the identity
and number of insurance providers that the [City of
Pittsburgh] must offer its employees and retirees in Issue
# 5, nowhere contained within that issue or any of the other
issues does the FOP raise a demand regarding the identity
and the number of insurance providers that the [City of
Pittsburgh] must offer its employees and retirees. While
there are certain times when an issue may be subsumed in
another issue such as in City of Wilkes-Barre v. City of
Wilkes-Barre Police Benevolent Association, 814 A.2d
12
285 (Pa. Cmwlth. 2002), where we held that an employer’s
notice of four proposals to curb health care costs was
sufficient to allow the arbitrators to a change of plan with
the same insurer, where a demand is a major one or cannot
be fairly subsumed within an issue, it must be specifically
raised. . . . [See Philadelphia v. Fraternal Order of
Police, Lodge No. 5, 561 A.2d 1312 (Pa. Cmwlth. 1989)].
Because an interest arbitration award under Act 111 may
only embrace those issues which the party requesting the
arbitration has specifically raised in the notice of
arbitration or that are fairly considered as subsumed within
those issues, and the FOP failed to raise this issue before
the Board, the trial court properly determined that the
Board exceeded its jurisdiction and vacated that portion of
the Board’s award.
850 A.2d at 854 (emphasis added). We note that in the present appeal, the
importance of the minimum age and years-of-service eligibility requirements as a
subject of collective bargaining is reflected in the provisions of the parties’ CBAs,
City ordinances amending the pension plan, and, currently, the pending grievance
arbitration, in which neither party asserts the application of Ordinance No. 3.
In Michael G. Lutz Lodge No. 5, following the expiration of the CBA
between the City of Philadelphia (city) and the Michael G. Lutz Lodge No. 5 of the
Fraternal Order of Police (Union), the parties proceeded to interest arbitration.
Section 14 of the panel’s award concerned advance notification and the rate of
compensation payable to police officers for court appearances:
Effective January 1, 2010, officers who do not receive
notice at least 48 hours in advance of the time they are
directed to appear for a required court appearance, other
than a preliminary hearing, scheduled for a date the officer
is not scheduled to work, shall be paid a minimum of 4
hours of overtime at a rate of 2.5 times the employee’s
regular rate.
129 A.3d at 1223.
13
The panel took the unusual step of retaining jurisdiction to resolve any
disputes that arose regarding implementation of its award. Such a dispute did arise
when the City of Philadelphia Police Department (Department) declared that if an
officer was given at least 48 hours prior notification of a court appearance on a
scheduled day off, and the case was continued until the next day, the officer would
not be entitled to the overtime. The Union filed grievances, arguing that the
Department did not comply with the interest arbitration award. While the grievances
were pending, the Union sought an immediate hearing before the interest arbitration
panel.
Eleven days before the hearing, the city submitted a proposal seeking a
determination that it be permitted to provide officers notice of court appearances
electronically, through a telephone number or email. This request marked a
departure from prior practice, under which a police officer’s platoon commander
typically was required to notify the officer in person. An officer who did not comply
with such notice could have been subjected to discipline.
The parties disputed whether the interest arbitration panel had
jurisdiction or authority to grant the city’s request. The matter eventually was
resolved by our Supreme Court, which granted allocator to address “the breadth of
an interest arbitration panel’s authority to address a question which was not
bargained over and not directly at issue before the panel in the prior interest
arbitration award,” over which the panel had retained jurisdiction. Id. at 1225.
Specifically, the parties disputed whether the manner of notification of court
appearances was an issue properly before the panel.
The court first explained that
the threshold question for us is whether this issue
implicates any of the four permissible areas of inquiry
14
allowed under narrow certiorari. We recently answered
that question in [Department of Corrections v.
Pennsylvania State Corrections Officers Association, 12
A.3d 346, 356 n.15 (Pa. 2011)], wherein we held that “[a]n
award pertaining to an issue that was not placed in dispute
before the board also reflects an excess of the arbitrators’
powers,” citing Appeal of Upper Providence Police, [526
A.2d 315, 322 n.5 (Pa. 1987)]. As the question of waiver
implicates the narrow certiorari prong regarding the
excess of an arbitrator’s powers, we may consider the
substance of the underlying issue of whether the
arbitration panel exceeded its authority when it considered
the proper manner of notification of police officers
regarding court appearances under narrow certiorari
review.
129 A.3d at 1227-28.
After setting forth the relevant law, the court held that “an interest
arbitration award under Act 111 may embrace only those issues which the submitting
party has specifically raised in the notice of arbitration, or which are reasonably
considered as subsumed within those issues.” 129 A.3d at 1230. Quoting Marple
Township v. Delaware County F.O.P. Lodge 27, 660 A.2d 211, 215 (Pa. Cmwlth.
1995), the Supreme Court explained:
[A]n arbitrator does not have a roving commission to do
what he or she believes is necessary to put everything
right, to construct a “better agreement.” Arbitrators are
required to address the issues submitted within the context
of the positions of the parties and effectuate the relief
requested, not to reform the collective bargaining
agreements.
Michael G. Lutz Lodge No. 5, 129 A.3d at 1230. Applying those legal principles,
the court concluded that the parties neither bargained to impasse over the specific
issue of the manner of notification nor raised it before the arbitration panel. Further,
whereas the initial interest arbitration award did not address the manner in which
15
notice to officers would be provided, the subsequent award “made drastic changes
to the existing and long-standing notification procedure.” Id. at 1231. The Supreme
Court held:
The manner of notification is not implicit in, nor
inherently commingled with, the distinct issue of notice
compensation. Indeed, the requirements regarding the
timing of notification and increased compensation for
court appearances may be achieved without a change to
the manner of notification. Thus, we hold that the Panel
exceeded its authority in addressing the manner of
notification.
Id.
Here, the City maintains that the age and length-of-service
requirements were raised in its statements of issues in dispute submitted to the panel.
However, throughout its argument that its written notice was sufficient, the City
omits any reference to the qualifying language set forth in its written statement of
the issues, i.e., “in accordance with Section 1.13 of the City of Arnold Police Pension
Plan as amended and restatement effective October 14, 1997 [Ordinance No. 6].”
The City focuses its argument on an alleged lack of evidence that
Ordinance No. 6 was enacted in compliance with Act 205, implicitly challenging the
validity of Ordinance No. 6. Relying on City of Allentown v. International
Association of Fire Fighters Local 302, 122 A.3d 492 (Pa. Cmwlth. 2015), rev’d on
other grounds, 157 A.3d 899 (Pa. 2017), and Municipality of Monroeville v.
Monroeville Police Department Wage Committee, 767 A.2d 596 (Pa. Cmwlth.
2001), the City asserts that the arbitrator had authority to affirm the invalidity of
Ordinance No. 6, even if police officers were adversely affected.
However, because the issue of notice required by Act 111 was not
implicated in either of these cases, they are not relevant to our analysis. Indeed,
while the City argues that the Committee failed to preserve the issue of the validity
16
of Ordinance No. 3, the City fails to identify language in its statement of issues
challenging the validity of Ordinance No. 6, the ordinance that the City identified in
its arbitration request.
In rebuttal to the Committee’s assertion that the retroactive
modification of pension eligibility requirements was an impairment of contractual
rights in violation of Article I, Section 17 of the Pennsylvania Constitution, Pa.
Const. art. I, §17, the City maintains: (1) the award did not violate police officers’
constitutional rights by retroactively diminishing pension benefits because the award
is the result of Act 111 interest arbitration; (2) the award clarified, rather than
modified, retirement eligibility requirements; and (3) the clarification was in
accordance with Act 205. Again, the City’s arguments stray from the essential fact
that its statement of the issues in dispute does not mention Act 205 or Ordinance No.
3, but expressly refers to the application of Ordinance No. 6 and does not contest its
validity. In light of this deficiency of notice, the award’s retroactive change in
pension benefit eligibility requirements “was not a change entered into by mutual
agreement or by an Act 111 panel.” The trial court erred in concluding otherwise.
Following Michael G. Lutz Lodge No. 5, City of Pittsburgh, and Lower
Yoder Township, we hold that, by applying the terms of Ordinance No. 3 to resolve
the parties’ dispute over age and years-of-service pension eligibility requirements,
the interest arbitration panel considered an issue that was not submitted to the panel
nor reasonably subsumed within the issue presented, which was the normal
retirement date for officers in accordance with Section 1.13 of Ordinance No. 6.
S.R.R. at 164b.
As we did in City of Pittsburgh and Lower Yoder Township, we again
emphasize the importance of the notice provision in Section 4(a) of Act 111, which
17
provides that interest arbitration can be triggered only by a party giving written
notice to the other party “containing specifications of the issue or issues in dispute,”
43 P.S. §217.4(a). We conclude that the plain language of the issue submitted by
the City does not fairly or reasonably embrace the consideration or application of
Ordinance No. 3. Moreover, we note that the age and years-of-service pension
eligibility requirements is an issue of major importance to the parties, as manifested
by the parties’ prior conduct, and, therefore, it is an issue that must be specifically
raised in a written demand for arbitration. City of Pittsburgh, 850 A.2d at 854.
Consequently, we hold that, by failing to confine its award to the issues in dispute,
the panel exceeded its authority11.
Accordingly, we reverse the trial court’s order as it affirms the portion
of the arbitration panel’s award retroactively modifying the minimum age and years-
of-service pension eligibility requirements under Ordinance No. 3. The trial court
shall remand this matter to the arbitration panel to consider the disputed issue as
submitted by the City, which was confirmation of the normal retirement date for
officers prior to January 1, 1988 and since in accordance with Section 1.13 of
Ordinance 6.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
11
It is well settled that, “when a case raises both constitutional and non-constitutional
issues, a court should not reach the constitutional issue if the case can properly be decided on non-
constitutional grounds.” Ballous v. State Ethics Commission, 436 A.2d 186, 187 (Pa. 1981.)
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wage and Policy Committee of the :
City of Arnold Police Department, :
:
Appellant :
:
v. : No. 47 C.D. 2018
:
City of Arnold, Pennsylvania :
ORDER
AND NOW, this 9th day of August, 2019, the order of the
Westmoreland County Court of Common Pleas (trial court), dated December 6,
2017, is REVERSED in part, and the matter is REMANDED to the trial court with
instructions to remand to the arbitration panel for a determination of pension benefit
eligibility requirements in accordance with the foregoing opinion.
Jurisdiction relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge