City of Pittsburgh v. Fraternal Order Police, Fort Pitt Lodge No. 1

• Decision Date: 22 May 2017
• Docket Number: No. 18 WAP 2016,18 WAP 2016
• Citation: 161 A.3d 160
• Parties: CITY OF PITTSBURGH, Appellee v. FRATERNAL ORDER OF POLICE, FORT PITT LODGE NO. 1, Appellant
• Court: Pennsylvania Supreme Court

161 A.3d 160

CITY OF PITTSBURGH, Appellee

v.FRATERNAL ORDER OF POLICE, FORT PITT LODGE NO. 1, Appellant

No. 18 WAP 2016

Supreme Court of Pennsylvania.

ARGUED: November 1, 2016

DECIDED: MAY 22, 2017

Gretchen Kirstin Love, Esq., Campbell Durrant Beatty Palombo & Miller, P.C., for Pennsylvania Municipal League, Amicus Curiae.

Eric Carl Stoltenberg, Esq., Lightman Welby & Stoltenberg, LLC, for Fraternal Order of Police, Fort Pitt Lodge No. 1, Appellant.

Joshua Martin Bloom, Esq., Joshua M. Bloom and Associates, P.C., for International Association of Fire Fighter, Local No. 1, Appellant Amicus Curiae.

Wendy Kobee, Esq., City of Pittsburgh Law Department, Alex Michael Lacey, Esq., Clifford B. Levine, Esq., Alice Birmingham Mitinger, Esq., Cohen & Grigsby, P.C., for City of Pittsburgh, Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE MUNDY

In this discretionary appeal, we consider whether a home rule municipality may amend its home rule charter¹ to eliminate mandatory subjects of bargaining as defined by the Police and Firemen Collective Bargaining Act, commonly known as Act 111, 43 P.S. §§ 217.1 –217.10 ; the Pennsylvania Labor Relations Act ("PLRA"), 43 P.S. §§ 211.1 –215.5 ; and applicable case law.

Appellant, the Fraternal Order of Police, Fort Pitt Lodge No. 1 ("FOP") is the exclusive collective bargaining representative for the police officers of Appellee, the City of Pittsburgh ("City"), pursuant to Act 111 and the PLRA.

The FOP and the City are parties to a collective bargaining agreement that ran from January 1, 2010 through December 31, 2014. Section 18(S) of the agreement provides, in relevant part:

If, during the term of this agreement ... the Pennsylvania State Legislature enacts legislation relating to ... residency requirements for police officers in cities of the second class, the parties may reopen the contract to negotiate and/or arbitrate under these limited conditions. The Panel shall retain jurisdiction to address such issues if agreement cannot be reached by the parties.

Agreement, 1/01/10–12/31/14, at 92.

The City is subject to the Policemen's Civil Service Act (for Cities of the Second Class), 53 P.S. §§ 23531 –23540, which prior to October 24, 2012, provided:

A person applying for appointment shall not be required to be a resident of the city at the time of application for original appointment. The person shall, however, be required to become a bona fide resident of the city at the time of the employment, and city residency must be maintained for the entire period of employment.

53 P.S. § 23532 (repealed).

However, the General Assembly repealed the residency mandate on October 24, 2012, through the enactment of Act 195 of 2012, which now provides, "[a] city of the second class may require a police officer to become a bona fide resident as a condition of employment." 53 P.S. § 23532.

In light of Act 195, the parties met to bargain the residency issue. Because they were unable to reach an agreement, the arbitration panel was reconvened, and held hearings on June 28, 2013 and September 23, 2013. At the commencement of the first hearing, the City objected to the arbitrability of the residency issue. N.T. Hrg, 6/28/13, at 5. On July 29, 2013, the City submitted a brief to the panel on this topic. Meanwhile, on July 23, 2013, the Pittsburgh City Council passed a resolution to place a referendum on the upcoming general election ballot asking the voters whether the City's home rule charter should be amended to require all City employees and officials, including police and fire personnel, to maintain their domicile within the City. Voters approved the home rule charter amendment on November 5, 2013.

On March 14, 2014, the arbitration panel issued a Supplemental Interest Arbitration Award, which provided that the City-only residency requirement would immediately discontinue and be replaced with the following provision: "Officers shall be required to reside within a twenty-five (25) air-mile radius from the City–County Building." Supplemental Interest Arbitration Award, 3/14/14, at 4. One member of the three-member panel dissented.

The City filed a timely petition for review in the Allegheny County Court of Common Pleas, seeking to vacate the supplemental award because the panel acted without jurisdiction and exceeded its authority under Act 111.

Writing for the trial court, Judge Robert J. Colville noted that an arbitration panel may direct a municipality to do anything that it is lawfully empowered to do. Relying on Township of Moon v. Police Officers of the Township of Moon , 508 Pa. 495, 498 A.2d 1305 (1985), Judge Colville determined that residency is a term and condition of employment for police officers and is thus a matter within the jurisdiction and authority of an Act 111 arbitration panel. Because the Act 195 amendments placed residency within the City's control, an interest arbitration award could modify the residency requirement.

The trial court also rejected the City's argument that the interest arbitration award was unconstitutional because it required the City to act in a manner contrary to the amended home rule charter. Judge Colville noted that a home rule charter "cannot supersede Act 111, a statewide statute." Trial Ct. Op., 7/9/14, at 10. In support of this conclusion, the court relied on Section 2962(c) of the Home Rule Charter Law, which provides that a municipality is precluded from exercising "powers contrary to, or in limitation or enlargement of, powers granted by statutes which are applicable in every part of this Commonwealth." 53 Pa.C.S. § 2962(c)(2). The trial court noted that "Act 111 is a statute applicable to all municipalities throughout the Commonwealth." Trial Ct. Op., at 11. The trial court further noted that Section 2962(c)(5) of the Home Rule Charter Law prohibits a home rule municipality from enacting "any provision inconsistent with any statute heretofore enacted prior to April 13, 1972 affecting the rights, benefits or working conditions of any employee of a political subdivision of this Commonwealth." 53 Pa.C.S. § 2962(c)(5). Because the General Assembly enacted Act 111 in 1968, and it affects the rights, benefits and working conditions of municipal employees by allowing them to bargain or arbitrate to set the terms of their employment, the trial court concluded that the home rule charter cannot restrict the scope of collective bargaining issues under Act 111, including residency. Accordingly, the trial court affirmed the supplemental interest arbitration award.

The City appealed, and a divided en banc Commonwealth Court reversed. Writing for the majority, Judge Bonnie Brigance Leadbetter, noted that the General Assembly, through the Home Rule Charter Law, gave home rule municipalities broad powers "to undertake any action they desired, and that such action should be upheld unless it was specifically denied by the Constitution, a statute or the home rule charter itself." City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1 , 129 A.3d 1285, 1288 (Pa. Cmwlth. 2016). After observing that a home rule charter is the equivalent of a constitution, the court relied on Spencer v. City of Reading Charter Bd ., 97 A.3d 834, 840 (Pa. Cmwlth. 2014) for the proposition that "provisions of a home rule charter have the force and status of an enactment of the legislature." City of Pittsburgh , 129 A.3d at 1289. The court concluded that no statewide law prohibits the home rule charter from requiring the City's employees to live within its borders. It explained that although Act 111 allows an arbitrator to impose any non-managerial conditions and conditions of employment, unless removed from discussion or award by other laws, "an arbitration panel can only award that which the public employer, in this case, the City, its Mayor and its Council, have the power to agree to and nothing more." Id. at 1290. Because the residency requirement is included in the home rule charter, which "has the force and status of an enactment of the General Assembly," id. , City officials lost the ability to bargain away residency requirements. Accordingly, the arbitrators' award would require the City to commit an illegal act.

In reaching this conclusion, the court partially overruled its opinion in City of Wilkes–Barre v. City of Wilkes–Barre Police Benevolent Association , 814 A.2d 285 (Pa. Cmwlth. 2002), in which it held that "[w]hen Act 111 applies, neither a home rule charter, nor an enactment by a home rule municipality may change the ability to bargain about residency." Id. at 290. The majority faulted the City of Wilkes–Barre court for failing to recognize that a home rule charter has the force and effect of a state statute, thus superseding general Act 111 requirements for bargaining over terms and conditions of employment.

Judge Robert Simpson filed a dissenting opinion, joined by Judge Kevin Brobson and Judge Anne E. Covey, noting that where a conflict exists between a statute of general application such as Act 111 and a home rule charter provision, the state statute prevails. Judge Simpson observed that he would have reached this result even without City of Wilkes–Barre because the limitations placed on home rule municipalities by the Home Rule Charter Law, and the application of the principles of express preemption, indicate the General Assembly intended state statutes of general application to supersede inconsistent home rule municipality enactments. The dissenting opinion further stated that the majority erred by citing Spencer for the proposition that a home rule charter provision is the equivalent of a state statute. Rather, the dissenting opinion noted that Spencer held "a home rule charter provision has the force and effect of an enactment of the municipality's legislative body." City of Pittsburgh , 129 A.3d at 1293 (Simpson, J. dissenting).

We granted allocatur to consider whether a home rule municipality may amend its home rule charter to...