dissenting.
I respectfully dissent on several grounds.
Of major concern is my disagreement with the majority’s reevaluation of the standard of judicial review over Act 1111 grievance arbitration awards. The reasons for my disagreement over this issue have already been expressed in my dissent in Pennsylvania State Police v. Pennsylvania State *283Troopers’ Association (Betancourt), 159 Pa.Commonwealth Ct. 489, 633 A.2d 1278 (1993), and further elaboration here is not necessary.
Beyond that, however, I strongly disagree with other portions of the majority opinion, the first over the City’s argument that the arbitrator exceeded his authority by deciding a constitutional issue.
In that section of the arbitrator’s award discussing procedural issues, the arbitrator refers to the Grievant’s “due process rights,” which could mean rights which would be based on constitutional provisions. Later in this section, however, the arbitrator refers to the Grievant’s “contractual due process rights,” which in that context must mean rights which arise from the provisions of the collective bargaining agreement (CBA), i.e., the “contract,” and through it the Philadelphia Home Rule Charter and the Civil Service Regulations. Thus, by the imprecise use of these terms the arbitrator has created confusion over the basis of his decision.
Clearly, the arbitrator would not have the authority to determine whether the Grievant’s constitutional rights had been violated. City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 140 Pa.Commonwealth Ct. 235, 592 A.2d 779, petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991) (Boykins). But that is not what occurred here, and Boykins is distinguishable from the facts in the appeal now before us.
In Boykins, the only issue submitted to the arbitrator was whether the City complied with the suspension and dismissal procedures set forth in the Philadelphia Home Rule Charter and the Philadelphia Civil Service Regulations, which were incorporated by reference into the City’s collective bargaining agreement with the FOP. Despite that, the arbitrator found that Boykins’ suspension and placement into custody without a prior opportunity for a hearing on the departmental charges violated Boykins’ constitutional due process rights and he reinstated Boykins with back pay.
*284The Court of Common Pleas of Philadelphia County affirmed the arbitrator’s award and the City then appealed to this Court, arguing that the arbitrator exceeded his authority in ruling on the constitutional question of whether the City violated Boykins’ due process rights. This Court agreed and Judge Pellegrini wrote:
[T]he collective bargaining agreement limits the arbitrator’s authority to determining whether the City was in compliance with the Charter and the Regulations, and not whether the City has violated any constitutional rights. Because the arbitrator in the present appeal did not rule on whether the City complied with the suspension and dismissal procedures set forth in the collective bargaining agreement, but instead ruled on the due process issue raised by the FOP, an issue that was not before the arbitrator in the bifurcated arbitration proceeding, the arbitrator exceeded his authority under the collective bargaining agreement. Accordingly, the trial court should have vacated the arbitration award.
Boykins, 140 Pa.Commonwealth Ct. at 241, 592 A.2d at 782 (footnote omitted).2
Boykins, then, is distinguishable from the instant case and is not controlling because here, by any fair reading of the arbitrator’s entire decision, it is obvious that the arbitrator grounded his interpretation of the rights afforded to Grievant on the notice provisions of the CBA, the Charter and the Regulations, and not on the Constitution, and in fact the arbitrator quoted from a then recent opinion of this Court, City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 125 Pa.Commonwealth Ct. 625, 558 A.2d 163 (1989) (Young) as authority for his decision.
In Young, the arbitrator framed the issue as, “[w]hether Angela Young was discharged for just cause? If not, what shall the remedy be?” Id. at 627 n. 2, 558 A.2d at 164 n. 2. *285The essential underlying facts in Young are identical to the essential underlying facts in this appeal, and the identical issue was raised there that is raised here: was the grievant afforded “contractual due process.” The arbitrator there, as here, answered that question in the negative and found that there had been such violations. Based on such a finding the arbitrator there, as here, concluded that “just cause did NOT exist for Grievant’s discharge.” Id. at 630, 558 A.2d at 165.3 Judge Palladino in Young incisively reviewed the award and wrote:
The arbitrator essentially determined that mitigating factors as well as procedural errors could be considered in evaluating whether “just cause” for Grievant’s discharge did or did not exist. (Emphasis added.)
Id.
It was this very language from Young which the arbitrator quoted in his decision at page 15. Moreover, the arbitrator here, as if to reinforce the mitigating factors beyond the “contractual due process” violations, further stated that if his decision was reversed on the “contractual due process” grounds, the Grievant was still not discharged for just cause. One must conclude, therefore, that the instant case is analogous to Young, not to Boykins, and that Young is controlling with respect to this issue.
Next, I take issue with the majority’s statement that: Once having found that the charged conduct occurred, there was just cause for the penalty chosen by the City under their Disciplinary Code, which allowed it to impose discipline up to dismissal. The arbitrator, under the incorporated Civil Service law, is not permitted to alter the penalty imposed by the City once the conduct relied on as just cause is found and was required to affirm the City’s decision to discharge Grievant. Because the Agreement requires the arbitrator to confirm the City’s action once just cause is found, under the ‘essence test’ standard of review, his *286attempt to alter the penalty was an' error of law and cannot rationally flow from the essence of the bargaining agreement.
(Majority opinion at p. 282, footnote omitted).
I maintain that the arbitrator decidedly should not review the issues placed before him under the “Civil Service law” because (a) the Civil Service law was never incorporated into the collective bargaining agreement in this respect and (b) if such were the case, why bother to arbitrate the grievance; why not simply use the available civil service disciplinary procedures already in existence? The pertinent terms of the CBA with respect to the City Charter and Civil Service Regulations are as follows:
XIX. GRIEVANCE AND ARBITRATION PROCEDURE A. Definition
6. Discipline cases may be grieved or submitted to Civil Service at the election of the employee, to the extent that the Civil Service Commission has jurisdiction.
D. Election of Remedies
The remedy set forth herein is provided as an alternative to the procedures set forth in Civil Service Regulations and the Home Rule Charter. Should an employee elect an avenue of redress other than the procedure contained herein, he/she shall waive the contractual right to pursue a grievance through this procedure, and in no event shall the matter be arbitrable. Should an employee elect to pursue the matter through the procedure contained herein, he/she shall waive the right to pursue the matter through the procedures provided by the Civil Service Regulations and the Philadelphia Home Rule Charter. The decision of an arbitrator shall be final and binding on all parties and the employee and/or FOP shall not pursue any other avenue of redress. (Emphasis added.)
The above language demonstrates, in my view, a “clear bright line” distinction between civil service disciplinary proce*287dures on the one hand and dispute resolution by arbitration on the other. These differences were fully explored and explained in City of Philadelphia v. FOP Lodge No. 5, 129 Pa.Commonwealth Ct. 392, 565 A.2d 1232 (1989) (Wilson). Arbitration is, in the words of the CBA, the “alternative to the procedures set forth in [the] Civil Service Regulations.” I would further maintain that that distinction encompasses fundamental differences that center precisely on the standard that an Act 111 arbitrator first applies, and, thereafter, the judicial standard of review that this Court applies to an appeal, ie., narrow certiorari vs. the “manifestly unreasonable” or essence test.4 Nowhere is that fundamental difference better illustrated than here, where the arbitrator found that “the grievant, Gary Wakshul, was not discharged for just cause” (Award, 3(a)), while this Court applies its “own brand of industrial justice”5 and ever widening scope of judicial review and has itself determined that “once having found that the charged conduct occurred, there was just cause for the penalty chosen by the City.”
. Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1-217.10.
. This Court then went further and determined that Boykins was afforded the procedural protections mandated by the Due Process Clause and that the City did not violate his constitutional rights by suspending him prior to notification of the departmental charges and opportunity to respond to the charges.
. The arbitrator concluded: "The suspension and dismissal of Grievant ... was not based on just cause and is nullified because it denied Grievant due process when it denied Grievant notice and an opportunity to reply.”
. At oral argument, the City conceded that the scope of review is in the nature of narrow certiorari and not the essence test as argued in its brief.
. See United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960).