DISSENTING OPINION BY
Judge SMITH-RIBNER.I respectfully dissent from the majority’s conclusion that this Court must affirm the decision of the Court of Common Pleas of Westmoreland County that declined to set aside an arbitrator’s award that required the City of Lower Burrell (City) to calculate a retiring police officer’s pension benefit in a manner that violates the twin provisions of the City’s ordinance and of the applicable statute. In my view the reasoning of the Court in the factually very similar case of Czekanski v. Ford City Borough, 148 Pa.Cmwlth. 417, 611 A.2d 791 (Pa.Cmwlth.1992), should be adopted and applied in the present matter.
As the majority acknowledges, in Czek-anski a police officer who was retiring in 1988 received backpay pursuant to a 1985 award compensating him for a period of forced retirement that he successfully challenged. The borough refused to include the backpay award in the officer’s pension calculation, and his union declined to take the matter to arbitration. The officer filed a petition for declaratory judgment in the court of common pleas, and the court sustained a preliminary objection and dismissed the case for lack of jurisdiction. This Court affirmed the trial court’s dismissal and also stated that, even though the officer received his backpay award during the applicable averaging period under the ordinance of the final thirty-six months of his employment, the award represented income that was earned outside that period, and the borough properly excluded it. The majority declines to follow the reasoning of Czekanski because the statement there concerning the propriety of excluding the backpay award in the pension calculation was dictum and because the present review is pursuant to the narrow certiorari scope of review applicable to cases involving the Act commonly known as “Act 111,” Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1 — 217.10.
I agree that Czekanski was decided on the procedural issue of the correctness of the trial court’s dismissal for lack of jurisdiction. Nevertheless, the reasoning in Czekanski concerning treatment of the backpay award remains cogent and persuasive. As the majority notes, the local provision at issue here, City Ordinance Section 141.06(d), provides that for an eligible officer “the basis of the apportion*439ment of the pension shall be determined by the rate of the monthly pay of the member at the time of retirement or the highest average annual salary which the member received during any five years of service before retirement, whichever is the higher,” and this provision tracks the language of the applicable statute, Section 4303(a) of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 39303(a).
In this case the City used the figure representing “the rate of monthly pay of the member at the time of retirement,” which it calculated according to its practice described by the City of Lower Burrell Wage and Policy Committee of determining the monthly pay at the time of retirement by dividing the member’s “Form W-2” earnings for the previous year by twelve. Although Lieutenant Baker received payment for the previously awarded 100 days of compensatory time near the time of his retirement, this amount plainly had nothing to do with “the rate of monthly pay of the member at the time of retirement,” whether determined by the City’s unchallenged averaging practice or by looking at Lieutenant Baker’s literal final monthly rate of pay. In addition, the compensatory time payment was compensation earned outside the period of “any five years of service preceding retirement” specified in the Ordinance and in The Third Class City Code, and the payment equally had nothing whatsoever to do with “the highest average annual salary” that the officer received during the five-year averaging period.
I agree that if the award related to compensation earned during the averaging period, it should be considered. But there is no question that in this case it did not. The majority refers to this as a distinction of form rather than substance, but I believe that the legislature and the City established a very clear substantive requirement in regard to pension calculation. Wages that an officer received outside the averaging period are not considered, even though deductions were made from them. An award relating to compensatory time earned outside the averaging period may not be considered without violating the plain language of the Ordinance and the statute.
Nevertheless, the majority concludes that the Court must affirm because its review is restricted to narrow certiorari, which limits a reviewing court to considering questions concerning: “(1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator’s powers; and (4) deprivation of constitutional rights,” under Pennsylvania State Police v. Pennsylvania State Troopers’ Ass’n (Betancourt), 540 Pa. 66, 79, 656 A.2d 83, 90 (1995). This case involves the third consideration, namely, whether there was an excess of the arbitrator’s authority. The majority points out that in the case of Pennsylvania State Police v. Pennsylvania State Troopers Ass’n (Smith), 559 Pa. 586, 741 A.2d 1248 (1999), the Supreme Court affirmed a determination that arbitrators’ decisions reinstating two State Police Troopers despite egregious misconduct could not be disturbed under narrow cer-tiorari review. I note, however, that Smith is distinguishable from the present case in one crucial respect, even though the Supreme Court there upheld reinstate-ments that it implicitly characterized as “extremely distasteful.” Smith, 559 Pa. at 590 n. 3, 741 A.2d at 1251 n 3.
One of the cases decided in Smith involved an off-duty trooper who assaulted a former girlfriend, threatening her with his service weapon, and who pleaded guilty to simple assault and making terroristic threats. The other case involved an off-duty trooper who left a department store *440with goods worth $27.58 for which he had not paid, and a charge for a summary offense of retail theft was withdrawn upon his agreement to pay $177 as restitution and a civil recovery penalty. After discussing the holding and the rationale of Betancourt, the Supreme Court held that the arbitrators in Smith did not exceed their powers. The court expressly noted that, although members of municipal police departments are dismissed from service when they have been convicted of a felony or a misdemeanor, 53 Pa.C.S. § 2164, there was apparently no similar proscription applicable to State Troopers. Smith, 559 Pa. at 593 n. 6, 741 A.2d at 1252 n. 6. Therefore, the arbitrators’ directions to reinstate the troopers did not require the State Police to violate a statute.
In Smith the Supreme Court referred to the discussion of the “excess of an arbitrator’s powers” prong of narrow certiorari review in Betancourt. The court noted that it had held that “‘[a]n arbitrator’s powers are limited. He or she may not mandate that an illegal act be carried out; he or she may only require a public employer to do that which the employer could do voluntarily.’ ” Smith, 559 Pa. at 592-593, 741 A.2d at 1252 (quoting Betancourt, 540 Pa. at 79, 656 A.2d at 90). There is a degree of tension between this principle and the proposition, also stated in Betanc-ourt and repeated in Smith, that a mere error of law would be insufficient to support a court’s decision to reverse an Act 111 arbitrator’s award. Nevertheless, in the present case the arbitrator’s award requires the City to do that which it could not do voluntarily, namely, to include in the pension calculation wages that do not represent final monthly pay or an average annual pay from a period within five years of retirement. In my view the arbitrator exceeded his powers when he directed this violation of the Ordinance and the statute, and his award should be set aside on that point.