Fraternal Order of Police Lodge No. 5 v. City of Philadelphia

Concurring Opinion by

Judge Palladino:

: While I concur in the result reached in this case, I write separately because the majority’s discussion of whether property rights are implicated in the context of a transfer is unnecessary to the resolution of this matter.

In this case, the arbitrator determined that the Department’s administration of polygraph tests to all applicants wishing to be transferred into the SIU did not violate the parties’ collective bargaining agreement. *143FOP contended on appeal that the arbitrator exceeded his powers because the award would allow the Department to perform an illegal act (i.e., the award would allow the Department to act outside of its authority). FOPs argument is premised upon the Pennsylvania Supreme Court’s decision in DeVito v. Civil Service Commission of the City of Philadelphia, 404 Pa. 354, 172 A.2d 161 (1961), as well as this court’s holding , in Marion v. Green, 95 Pa. Commonwealth Ct. 210, 505 A.2d 360 (1986), allocatur denied, 514 Pa. 633, 522 A.2d 560 (1987).1 Taken together, DeVito and Marion stand for the proposition that a police department may not dismiss or refuse to reinstate a police officer based upon that officer’s refusal to submit to a polygraph, unless civil service regulations have been promulgated which require him to submit to the test. Based upon these cases and the cited provision of the Philadelphia Home Rule Charter, FOP contends that, in the absence of regulations, the Department lacks the legal authority to require police officers seeking a transfer into .SIU to submit to a polygraph.

The arbitrator in the instant case recognized the issue of the "legality” of the polygraph requirement. However, the arbitrator resolved this issue by distinguishing Marion and noted that applicants for SIU positions are current employees who were not seeking to exercise rights to reinstatement. Further; the arbitrator stated that applicants for SIU positions are required to take a polygraph only if they voluntarily determine *144that they wish to be employed in that unit. Finally, the arbitrator determined that “failure to take the examination would not, apparently, result in a deprivation of employment.” Arbitrators Award at 23-25. Accordingly, the arbitrator denied FOP’s grievance.

As the majority correctly states, our scope of review of an Act 1112 arbitration award is in the nature of narrow certiorari. Thus, we are limited to reviewing the jurisdiction of the arbitrator, the regularity of the proceedings, constitutional questions, and excesses in the exercise of the arbitrators powers. See Appeal of Upper Providence Township, 514 Pa. 501, 526 A.2d 315 (1987); Dunmore Police Association v. Borough of Dunmore, 107 Pa. Commonwealth Ct. 306, 528 A.2d 299 (1987). However, an error of law which does not so exceed the powers and authority of the arbitrator (such as a misinterpretation or misapplication of law affecting a term or condition of employment that did not require the doing of a prohibited act by the public employer) is not alone grounds for reversal of an Act 111 arbitration award. Appeal of Upper Providence Township.

By concluding that the decision in Marion was not dispositive in the context of a voluntary transfer, the arbitrators award constitutes, at most, an error of law. So long as the arbitrators award draws its essence from the terms of the collective bargaining agreement, this court should end its inquiry and should not intrude upon the domain of the arbitrator simply because it believes that the arbitrators interpretation might be “wrong.” Allegheny County Police Association v. County of Allegheny, 100 Pa. Commonwealth Ct. 327, 514 A.2d 964, allocatur granted, 514 Pa. 637, 522 A.2d 1106 (1986). Likewise, I believe that the majority has en*145gaged in an unnecessary and independent evaluation of the reasons why a transfer should be distinguished from reinstatement, dismissal, or promotion.3

FOP also cites Section 7-401(m) of the Philadelphia Home Rule Charter, 351 Pa. Code §7.7-401(m), which states that civil service regulations shall provide for transfer from one position to a similar position in the same class and level of responsibility. The arbitrators award does not address this specific provision nor is this provision mentioned in the “Position of the Union” section of the arbitrators decision.

Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§217.1-217.10.

The majority states that the decision in this case is in accord with our decision in Hatfield Township v. Stanley, 113 Pa. Commonwealth Ct. 258, 537 A.2d 63 (1988). However, Stanley did not arise in the context of an Act 111 arbitration. Judicial review in Stanley was therefore not circumscribed by the standards enunciated in Appeal of Upper Providence Township.