dissenting.
I dissent, and in support adopt the opinion of the Commonwealth Court, authored by Judge MacPhail and joined by Judge Colins and Senior Judge Rogers.
Unlike in County of Centre, Centre County Prison Board v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988) and Philadelphia Housing Authority v. Union of Security Officers #1, 500 Pa. 213, 455 A.2d 625 (1983), the misconduct of the employee, Mr. Albert McCardle, which gave rise to his discharge was accompanied by a mitigating factor reducing the employee’s culpability, i.e., his mental illness. The arbitrator considered the evidence of Mr. McCardle’s mental illness and found that his discharge was not based upon “just cause” because his conduct was mitigated by said mental illness. The majority holds that such an interpretation of “just cause” by the arbitrator was outside of the “essence” of the bargaining agreement because “the concepts of culpability and mitigation applicable in criminal law are not applicable to this area.” At 276. I agree with Mr. Justice Papadakos (in his concurring opinion in this case) and the Commonwealth Court that, contrary to the majority’s assertion, such concepts of mitigation and culpability are most certainly applicable to a grievance proceeding intended to determine whether there was “just cause” for discharge within the terms of the collective bargaining agreement and that an arbitrator acts within his or her authority in applying such concepts.
As the Commonwealth Court stated in distinguishing Philadelphia Housing Authority from the instant case:
It is true that in the case at bar we are also dealing with an employee whose integrity is at question. There is, however, an additional mitigating factor. The arbitrator found that Mr. McCardle was not responsible for his actions because of his mental state. We do not see how the discharge of a mentally ill individual can be said to be for “just cause.” In a humane society, public employers should foster the rehabilitation of such individuals. A discharge does not encourage rehabilitation. We feel *280that the arbitrator’s resolution of the problem was a prudent one. He held that the period from when Mr. McCardle was terminated until the time he started working in his new position should be considered a suspension with the period of time he underwent treatment to be converted to sick leave if he successfully completes his six month probationary period. While passing on the wisdom of the award is beyond our scope of review, we are constrained to comment that the arbitrator in this case acted wisely. His award most certainly meets the essence test.
The Board argues that at the time it terminated Mr. McCardle it did not know of his mental condition. This argument misses the point. The point is that Mr. McCardle was, according to the arbitrator, mentally ill. The arbitrator was justified in using information gleaned after Mr. McCardle’s termination in determining whether or not just cause existed at the time the termination took place. Such determinations of mental state are, of course, made in the area of criminal law quite frequently.
The Board points out that the award of an arbitrator will be set aside where the arbitrator exceeds the scope of issues presented to him by the parties, American Federation of State, County and Municipal Employees v. City of Beaver Falls, 74 Pa.Commonwealth Ct. 136, 459 A.2d 863 (1983). It argues that the arbitrator did so in this case. We disagree. The arbitrator decided precisely what was before him: whether Mr. McCardle had been discharged for just cause and what the remedy should be if he had not been so discharged.
In my opinion, the arbitrator’s award did indeed derive its essence from the collective bargaining agreement in determining that Mr. McCardle’s discharge was not for just cause and in crafting an appropriate remedy. Accordingly, I would affirm the Commonwealth Court.