Allegheny County Deputy Sheriffs' Ass'n v. Pennsylvania Labor Relations Board

DISSENTING OPINION BY

Judge BROBSON.

The Pennsylvania Supreme Court held “that deputy sheriffs of counties of the second class are police officers falling under Act lll.[1]” Allegheny Cnty. Deputy *13Sheriffs’ Ass’n v. Pa. Labor Relations Bd., 615 Pa. 126, 136, 41 A.3d 839, 846 (2012) (emphasis added). The majority, however, concludes that “deputy sheriffs in counties of the second class are not police officers for whom collective bargaining rights are conferred by Act 111.” (Maj. Op. at 12 (emphasis added).) Because the majority’s holding is inconsistent with the Pennsylvania Supreme Court’s decision in this case, I respectfully dissent.

I acknowledge, as the majority does, footnote 8 of the Supreme Court’s decision, in which the Supreme Court noted the unresolved argument of Intervenor Allegheny County (County) that “it would be unconstitutional for the Deputy Sheriffs to be afforded Act 111 police officer status.” Allegheny Cnty. Deputy Sheriffs’ Ass’n, 615 Pa. at 137 n. 8, 41 A.3d at 847 n. 8. The Supreme Court chose not to address that argument because we did not address it in our prior opinion and because the Supreme Court did not accept the issue for review. Id. The Supreme Court then noted in the same footnote its decision to “remand the matter” to us, id., and further noted in the body of its opinion that “this matter is remanded to [the Commonwealth Court] for proceedings consistent with this opinion.” Id. at 137, 41 A.3d at 846 (emphasis added).

Respectfully, I do not believe the majority’s conclusion that deputy sheriffs of counties of the second class (Deputy Sheriffs) are not police officers falling under Act 111 is consistent with the Pennsylvania Supreme Court’s opinion holding that they are. This begs the question — for what purpose did the Supreme Court remand this matter to us? I believe that on remand, we have been instructed to evaluate the merit of the County’s constitutional arguments in light of the Supreme Court’s decision that Deputy Sheriffs, because they are defined as police officers under Section 2162 of the Municipal Police Education and Training Law (MPETL)2 and Section 103 of the Crimes Code,3 benefit from the protections and rights afforded under Act 111.

To be clear, the Pennsylvania Supreme Court held that the General Assembly, by choosing to include Deputy Sheriffs in the statutory definitions of “police officer” in the MPETL and Crimes Code, intended Deputy Sheriffs to be eligible for Act 111 rights and protections like any other police officer in this Commonwealth. Id. (noting “[t]he pains the legislature took to specifically single out these particular law enforcement personnel”). It, therefore, is not within our purview to ignore the General Assembly’s intent to reach an alternative definition of “police officer” for purposes of Act 111. See 1 Pa.C.S. § 1921(a) (“[T]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.”). The Pennsylvania Labor Relations Board (PLRB) in this matter held that the Deputy Sheriffs are not police officers within the meaning of Act 111 and thus denied the petition of the Allegheny County Deputy Sheriffs’ Association (Association) for certification to represent the Deputy Sheriffs as police officers under Act 111. In light of the Pennsylvania Supreme Court’s decision, the PLRB’s reasoning can no longer be used to justify its decision to deny certification to the Association.

The question now on remand is whether the County has advanced a constitutional argument that would support affirmance of the PLRB’s decision to deny certification on alternative grounds. In its brief follow*14ing remand, the County relies on Article III, Section 32 of the Pennsylvania Constitution,4 which prohibits the General Assembly from passing special or local laws benefitting particular political subdivisions or classes of persons, over others similarly-situated. See Pa. Turnpike Comm’n v. Commonwealth, 587 Pa. 347, 363-64, 899 A.2d 1085, 1094 (2006).

An example of a successful “special law” challenge to legislation is DeFazio v. Civil Service Commission of Allegheny County, 562 Pa. 431, 756 A.2d 1103 (2000), which is cited by the majority. In that case, the sheriff of Allegheny County initiated an equity action in the Court of Common Pleas of Allegheny County, challenging the constitutionality of legislation that applied only to the hiring and promotion procedures for and political activities of sheriffs employees only in counties of the second class. The trial court held that such legislation, targeted only at counties of the second class, was unconstitutional because it violated Article III, Section 32 of the Pennsylvania Constitution. Our Supreme Court affirmed: “In this ease, [the legislation] bearfs] no relationship to the status of Allegheny County’s second class classification or to any unique characteristic of the office of sheriff in a second class county.” DeFazio, 562 Pa. at 438, 756 A.2d at 1106.

DeFazio would certainly support an argument that any legislation that grants special treatment to the Deputy Sheriffs should be held unconstitutional. But this case is not a DeFazio-type challenge to a particular piece (or pieces) of legislation. Unlike the plaintiff in DeFazio, the County here does not argue that Act 111 is unconstitutional under Article III, Section 32. Nor does the County contend that we should declare Section 2162 of the MPETL and Section 103 of the Crimes Code unconstitutional as granting favored treatment to the Deputy Sheriffs over the deputy sheriffs in other counties of the Commonwealth. Indeed, the County deftly avoids a direct attack on the constitutionality of either Act 111 or the sections of the MPETL and Crimes Code that define police officer to include the Deputy Sheriffs. Instead, the County employs the constitutional prescription against local and special laws as a statutory construction device, urging us on remand to construe “police officer” for Act 111 purposes to exclude the Deputy Sheriffs, because to do otherwise would be to afford special status to the Deputy Sheriffs.

If the General Assembly’s intent as to the meaning of the term police officer for purposes of Act 111 were still in doubt, the County’s resort to the Pennsylvania Constitution to ascertain legislative intent would be appropriate. See 1 Pa.C.S. § 1922(3) (providing that in ascertaining legislative intent, courts should presume “[t]hat the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth”). Here, however, in light of the Supreme Court’s decision in this matter, the meaning of police officer for purposes of Act 111 is no longer in dispute. It includes the Deputy Sheriffs. We cannot now, even under the guise of the Pennsylvania Constitution, ascribe a contrary legislative intent.

For purposes, then, of this appeal from the PLRB decision, we are left only to determine whether the Deputy Sheriffs, who are police officers, are entitled to the rights and protections afforded under Act 111. Because all police officers in this Commonwealth are so entitled, and be*15cause there is nothing unconstitutional about Act 111 in terms of affording police officers (or “policemen,” as used in Act 111) those rights and protections,5 the PLRB erred in not granting the Association’s petition for certification. Unless and until the sections of the MPETL and Crimes Code that define police officers as including the Deputy Sheriffs are amended or declared unconstitutional (possibly under Article III, Section 32 of the Pennsylvania Constitution), the Deputy Sheriffs, as police officers, fall within the scope of Act 111.

For these reasons, I would reverse the PLRB’s decision and remand with direction that the PLRB grant the Association’s petition for certification.

Judge McGINLEY joins in this dissenting opinion.

. The Policemen and Firemen Collective Bargaining Act, Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1 to .10, is commonly referred to as Act 111.

. 53 Pa.C.S. § 2162.

. 18 Pa.C.S. § 103.

. I agree with the majority’s rejection of the County’s constitutional argument based on Article III, Section 31 of the Pennsylvania Constitution. (Maj. Op. at 12 n.ll.)

. See Pa. Const, art. Ill, § 31; see also Harney v. Russo, 435 Pa. 183, 255 A.2d 560 (1969) (holding Act 111 valid under Pennsylvania Constitution).