dissenting.
The Court in its opinion refuses to face the dispositive issue in this case: whether Section 703 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, No. 195, 43 P.S. § 1101.703 (Supp.1978) [herein PERA]1 prohibits the implementation of the arbitration procedure agreed upon by the parties in their collective bargaining agreement (“agreement”). The majority sidesteps this question, and instead addresses a question never tendered by the appellant. The Court holds that the City of Pittsburgh (“City”) may not assert a Section 703 defense “in order to avoid compliance with agreed upon arbitration procedure.” This estoppel theory, altogether novel in this Court’s decisions concerning Section 703, should not be the basis of today’s reversal of the lower courts. What Mr. Justice NIX said for the Court in Reed v. Sloan, 475 Pa. 570, 574 n. 4, 381 A.2d 421 (1977), is fully applicable here: “This issue is not properly before this Court, since it is not the issue raised by the appellant. Commonwealth v. Branham, 467 Pa. 605, 359 A.2d 766 (1976); Phillips H.F., Inc. v. Continental Bank, 467 Pa. 43, 354 A.2d 542 (1976); School Dists. of Deer Lakes & Allegheny Valley v. Kane, 463 Pa. 554, 345 A.2d 658 (1975); Benson v. Penn Central Transportation Company, 463 Pa. 37, 342 A.2d 393 (1975); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).”
In drafting the PERA, the General Assembly recognized that a number of potential subjects of collective bargaining were already regulated by other statutes. It obviously decided that the new procedures of the PERA were not to supersede the handling of such matters in the manner prescribed by preexisting legislation. Thus Section 703 was included in PERA in order to preclude the implementation *77of a provision in a collective bargaining agreement “in violation of, or inconsistent with, or in conflict with” such other legislation. This Court in the past has, I believe, circumvented the intended meaning of Section 703 by a kind of judicial legislation. In Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 510, 337 A.2d 262, 270 (1975), it construed that section to mean that an item is improperly included in a collective bargaining agreement only if that item is in violation of existing law. Relying upon State College, the Court in Board of Education v. Philadelphia Federation of Teachers, 464 Pa. 92, 346 A.2d 35 (1975), found that the discharge of a teacher as ordered by an arbitrator acting pursuant to a collective bargaining agreement, was not in violation of the School Code of 19492 notwithstanding that the School Code gives to local school boards the right to discharge teachers. Following the reasoning of State College and Philadelphia Teachers, the Court again found no violation of Section 703 in Milberry v. Board of Education, 467 Pa. 79, 354 A.2d 559 (1976), a case in which an unsatisfactory rating of a teacher was submitted to arbitration under the provisions of a collective bargaining agreement.
Although in the three cases cited above I disagreed with the Court’s analysis of the scope and intent of § 703 of PERA,3 the Court in each case was at least addressing the proper issue, namely, whether the collective bargaining agreement ran afoul of Section 703. Although the case at bar involves the same problem, the Court evades it, as stated above, by holding that the City of Pittsburgh as employer is estopped to raise the question. The majority suggests that because the City entered into a collective bargaining agreement containing an arbitration clause,4 the City’s subsequent *78failure to arbitrate the propriety of its discharge of the particular employee involved is indicative of a lack of good faith on the City’s part, and injected discord and distrust into the relationship between the City and its employees. This estoppel approach may be appropriate in unfair labor practice cases, but in my view it has no place in a case such as this where it is incumbent on the courts to decide whether or not the agreement in question is restricted in its operation by the restraints of Section 703.5
Because the majority, for reasons unclear to me, has not seen fit to address the merits of the case as briefed and argued by the parties and decided by the courts below, I need not consider the merits exhaustively in this opinion. I therefore merely sketch my reasons for believing that the Court is wrong in result as well as in rationale.
An integral part of the government of the City of Pittsburgh as a city of the second class is the civil service system, introduced over seventy years ago by the Civil Service Act, Act of May 23, 1907, P.L. 206, 53 P.S. § 23431 et seq. (1957). The primary purpose of civil service, of course, was to ensure that selection and retention of employees was based on merit, and to protect both prospective and present employees from the ravages of the spoils system. See, e. g., *79Geis’s Appeal, 341 Pa. 413, 19 A.2d 368 (1941). Thus the Civil Service Act contains elaborate provisions to guard against abuse in the hiring and firing of classified employees subject to the Act. Section 20 of the Act, 53 P.S. § 23453 provides that no employee subject to the Act “shall be removed, discharged or reduced in pay or position except for just cause . . . .” It is further provided that no civil service employee shall be discharged until he has been furnished a written statement of the reasons for such action and given the opportunity to make a written answer and furnish it to the removing officer.6
“Just cause” is not a defined term in the Civil Service Act, but its definition is found in the Rules of the Civil Service Commission of the City of Pittsburgh, (“the Commission”; see note 7, supra) adopted by the Commission as authorized by the Civil Service Act.7 The rules further provide that a dismissed employee shall have ten days within which to file *80an appeal with the Commission “alleging that his reduction or dismissal was made without just cause and/or that the provision of the Act of 23 May 1907 and/or the Rules of the Commission were not observed.” The Commission at its discretion determines whether or not a public hearing is warranted, and then proceeds to rule on the appeal.
I cannot accept the argument of the appellant that an arbitration of a grievance concerning a dismissal on the ground that just cause was absent is merely a supplementary or intermediate step in the civil service procedure, for there is nothing to prevent a grievance being filed at any stage of the civil service proceeding, whether before or after the dismissal has occurred, or before or after an appeal has been taken and decided. Moreover, the contract at issue here provides (Section 6, Record at 14a) that the arbitrator’s award shall be “final and binding upon the employee involved and upon the parties to this Agreement . . . .” Thus, what I said in Board of Education, supra, is pertinent:
“The action of the [Civil Service Commission on appeal] would then have been an exercise in futility, for the entire case would then be referred to arbitrators; the arbitrators would sit, in effect, as a super [civil service commission] in a matter of [employe] discipline and dismissal, but not subject to the provisions of the [Civil Service Act and Commission rules] governing the action of [city officials], and not subject to appeal.” 464 Pa. at 115-16, 346 A.2d at 48.
Finally, any argument that arbitration under the collective bargaining agreement is permitted with respect to the propriety of a dismissal of a classified employee must, I submit, evaporate in light of the unmistakably clear declaration of exclusivity contained in the Civil Service Act itself:
“It is intended by this act to furnish a complete and exclusive system for the appointment, promotion, reduction, transfer, removal or reinstatement of all officers, clerks, laborers and other employes in the civil service of cities of the second class in this commonwealth.” Act of May 23, 1907, P.L. 206, § 28, 53 P.S. § 23461.
*81Thus I conclude that this is not a case where the matter as to which a grievance is filed and the arbitration sought is supplementary to and not a substitution for a statutory scheme antedating PERA. See Milberry, supra, 467 Pa. at 85, 354 A.2d at 563 (concurring opinion). Rather, the case at bar involves an attempted procedure in direct contravention of a preexisting statutory scheme, a procedure therefore interdicted by Section 703. See Board of Education, supra, 464 Pa. at 108, 346 A.2d at 45 (dissenting opinion).
Accordingly, I would affirm the order of the Commonwealth Court.
. Section 703 provides:
“The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters.”
. Act of March 10, 1949, P.L. 30, art. V, §§ 510, 514, 24 P.S. §§ 5-510, 5-514 (1962).
. See State College, supra, 461 Pa. at 513 n. 1, 337 A.2d at 271 n. 1 (concurring opinion); Board of Education, supra, 464 Pa. at 108, 346 A.2d at 45 (dissenting opinion); Milberry, supra, 467 Pa. at 85, 354 A.2d at 563 (concurring opinion).
. Section 903 of PERA, 43 P.S. § 1101.903, reads in relevant part:
“Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is *78mandatory. The procedure to be adopted is a proper subject of bargaining with the proviso that the final step shall provide for a binding decision by an arbitrator or a tri-partite board of arbitrators as the parties may agree.”
. Given the language of Section 703, which anticipates that a provision may find its way into a collective bargaining agreement, the implementation of which might violate or be in conflict or inconsistent with a statute other than PERA, it is difficult to see how the City can be held culpable for allowing such a provision in the agreement. At all events, the City cannot be said to have waived its right to argue in this Court that the dismissal in question was not subject to arbitration. It expressly reserved, in the management rights clause of the agreement (Section 3), the right to discipline and discharge employees. It stipulated, however, that any such action would be only “for just cause, as defined in the Civil Service Law” (Record at 9a). Without deciding whether this provision is dispositive of the merits of the arbitrability dispute, it at least does not preclude the City’s right so to argue.
. Section 20 also provides that a copy of the statements of the employer’s reasons for discharge and of the written answer of the employee shall be furnished to the civil service commission and entered on its records.
Section 2 of the Civil Service Act provides for “a civil service commission in each city of the second class, consisting of three commissioners to be appointed by the mayor.” 53 P.S. § 23432.
. Section six of the Civil Service Act gives the commission the authority to “prescribe, amend and enforce rules and regulations for carrying into effect the provisions of this act.” 53 P.S. § 23436.
Rule X of the rules of the Commission in effect at the time of the discharge here in question (1973) provided that “a just cause may be, inter alia,
(A) Physical or mental disability.
(B) Delinquency, misconduct, incompetence, or inefficiency.
(C) Lack of work, abolition of position, or failure of City to provide salary therefor.
(D) Termination of vacancy which was occasioned by leave of absence granted for military or other national defense duty.”
The Commission’s rules have been revised as of October, 1976, but no change of substance has been made in this portion of Rule X. The prefatory note by the Commission to the new rules mentions the enactment of PERA and the Civil Rights Acts of 1964, as amended. The note then states that the revised rules “preserve the principles of equal opportunity employment and sound labor-management relations.” Civil Service Statutes, as amended, and Rules Governing the Civil Service of the City of Pittsburgh, 1976.