Appeal of Upper Providence Police Delaware County Lodge No. 27 Fraternal Order of Police from Award of Arbitrators

• Decision Date: 04 December 1985
• Citation: 93 Pa.Cmwlth. 272,502 A.2d 263
• Parties: In re APPEAL OF UPPER PROVIDENCE POLICE DELAWARE COUNTY LODGE # 27 FRATERNAL ORDER OF POLICE FROM AWARD OF ARBITRATORS. Appeal of UPPER PROVIDENCE TOWNSHIP. 1866 C.D. 1984.
• Court: Pennsylvania Commonwealth Court

Page 263

502 A.2d 263

93 Pa.Cmwlth. 272

In re APPEAL OF UPPER PROVIDENCE POLICE DELAWARE COUNTY

LODGE # 27 FRATERNAL ORDER OF POLICE FROM AWARD OF

ARBITRATORS.

Appeal of UPPER PROVIDENCE TOWNSHIP.

1866 C.D. 1984.

Commonwealth Court of Pennsylvania.

Argued June 3, 1985.

Decided Dec. 4, 1985.

D. Barry Gibbons, Gibbons, Buckley, Smith, Palmer & Proud, P.C., Media, for appellant.

Alexander A. DiSanti, Richard, DiSanti, Hamilton, Gallagher & Paul, Media, for appellee.

Before ROGERS and DOYLE, JJ., and BLATT, Senior Judge.

ROGERS, Judge.

The questions raised in this appeal are (1) whether a court of common pleas has jurisdiction During the year 1982, the appellant, Upper Providence Township, Delaware County (township), and the appellee, Upper Providence Police Delaware County Lodge # 27, Fraternal Order of Police (police), engaged in collective bargaining pursuant to Act 111 for a collective bargaining agreement effective January 1, 1983. An impasse was reached within the meaning of Section 4(a) of Act 111, 43 P.S. § 217.4(a), concerning the legality of an existing retirement benefit which had been conferred on police persons beginning in 1976 by several earlier agreements and one arbitration award. The disputed provision gave retirees "the full hospital and medical benefits in effect at the time of retirement (whether for service or disability) to continue annually after retirement until death; these benefits to be offset by any similar benefits received from the government or any other employment."

to hear an appeal from the decision of arbitrators in interest arbitration under Act 111 ¹ which raises only a question of the legality of the award and (2) if the common pleas court in this case had jurisdiction, whether it [93 Pa.Cmwlth. 274] correctly held that the arbitrators' decision was contrary to law. ²

The township's position was and is that the provision is illegal. The position of the police seems to have been that the township, having agreed to the provision should be estopped from asserting its illegality; the position of the police now is that the provision is perfectly legal. The parties agreed "to submit the issue of illegality of this benefit for consideration of the Board of Arbitrators."

By award made in late December, 1982, the arbitrators by vote of two to one continued the hospital and medical benefits during the calendar year 1983 but declared that they should not be in effect during the calendar year 1984. The parties agree that the decision of the majority of the arbitrators was that the provision of hospital and medical benefits was illegal.

The police appealed the award to the court of common pleas which first dismissed it for want of jurisdiction; but later, on application of the police, reconsidered and thereafter held that it had jurisdiction and that the arbitrators' award disallowing the disputed provision as illegal was contrary to law.

The township has appealed, contending, as we have first noted, that the court's final decision that it had jurisdiction was error, as was also the court's decision that hospital and medical benefits for retired police officers of Upper Providence Township are not contrary to law.

Section 7(a) of Act 111, 43 P.S. § 217.7(a), provides that "[t]he determination of the majority of the board of arbitration ... shall be final on the issue or issues in dispute and shall be binding upon the public employer and the policemen or firemen involved" and that "[n]o appeal therefrom shall be allowed to any court." The meaning of these provisions was explored in the Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969). The Pennsylvania Supreme Court there held that, Act 111 The appellant township relies on Washington Arbitration Case, positing that, having in its appeal below raised only the question of the legality of the arbitrators' award and none of the matters reviewable on narrow certiorari, the police had no right to appeal and the court no jurisdiction to review the award.

having declared awards of boards of arbitrators to be final and having forbidden appeals to any court, the City of Washington, Pennsylvania,[93 Pa.Cmwlth. 276] did not have the right to appeal an award made by a board of arbitrators to the court of common pleas; that the common pleas court had no jurisdiction of such an appeal; but that the Supreme Court would entertain the City's appeal as an application for review in the nature of narrow certiorari pursuant to then Supreme Court Rule 68 1/2. ³ The Supreme Court observed that narrow certiorari permits review only of (1) a question of jurisdiction, (2) the regularity of the proceedings, (3) questions of excess in the exercise of powers, and (4) constitutional questions; but then declared that the direction by arbitrators that the City perform an illegal act, as was alleged, would be in excess of their powers, making it appropriate for the court to review the disputed provision award for legality. The court concluded upon examination that the provision was illegal and nullified it.

The police contend that Act 111 arbitration awards are now reviewable by courts for errors of law; that Section 501(a) of the Act of October 5, 1980, P.L. 693, added the Uniform Arbitration Act to Title 42 of Pennsylvania Consolidated Statutes, as Subchapter A of Chapter 73, Arbitration. 42 Pa.C.S. § 7302 provides relevantly:

§ 7302. Scope of subchapter

....

(d) Special application.--

(1) Paragraph (2) shall be applicable where:

....

(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.

(iii) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter.

(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

The plain meaning of the quoted parts of Section 7302 is that where a political subdivision submits a controversy to arbitration, a court in reviewing the arbitration award shall modify or correct the award where it is contrary to law. The Act of 1980 postdates Act 111, and Washington Arbitration Case, interpreting the meaning and effect of that Act's provisions that arbitrators' awards shall be final and that no appeal shall be allowed to any court. Hence, the limitations upon court review imposed by Act 111 are overthrown; and courts reviewing arbitration awards under Act 111 may "modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict."

The township contends that an Official Source Note to 42 Pa.C.S. § 7302 demonstrates that the General Assembly did not intend to disturb narrow certiorari as the scope of judicial review of Act 111 arbitrations. The Note reads:

Compare Act of April 25, 1927 (P.L. 381, No. 248), § 16 (5 P.S. § 176). Subsection (c) is intended as a codification of We seriously doubt that the authors of the Note had review on narrow certiorari in mind in composing this Note because the focus of the Note is on Section 11(d) of the Act of April 25, 1927, of which subsection (d) 2 of Section 7302 is a chinese copy. The case of Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975), referred to in the Note, principally held that the Act of April 25, 1927, had not been repealed by the Arbitration of Claims Act of 1937 so that the arbitration in that case had been properly conducted under the Act of April 25, 1927. Scope of judicial review was not a subject of decision or discussion in that case. Therefore the comment of the Note that Section 7302 was meant as a codification of Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc. suggests that the authors meant that it was the Act of April 25, 1927, including Section 11(d), which was thereby codified. Moreover, we are satisfied that the authors' comment that subsection (d) of Section 7302 was "intended to preserve without change the scope of review which presently exists over awards of arbitrators such as those appointed under" Act 111, was simply unmindful of Washington Arbitration Case; and that by the "scope of review which presently exists" they meant the scope of review of arbitrations provided by Section 11(d) of the Act of April 25, 1927. This is demonstrated by the citation of that subsection of that Act which immediately follows the reference to Act 111.

Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 336 A.2d 609 (1975). Subsection (d) is intended to preserve without change the scope of review which presently exists over awards of arbitrators such as those appointed under the Act of June 24, 1968 (P.L. 237, No. 111) (43 P.S. § 217.1 et seq.). See Act of April 25, 1927 (P.L. 381, No. 248), § 11(d) (5 P.S. § 171(d)).

In any case the Statutory Construction Act at 1 Pa.C.S. § 1939 requires that the text of the statute shall control in the event of conflict between its text and comment of any entity which had a hand in drafting it. If the Note does mean to say that narrow certiorari remains the scope of review of awards of arbitrators under Act 111, it is inconsistent with the text of Section 7302(d)(2) and must be disregarded.

It is important to write at this point that the central holding of Washington Arbitration Case --that an award of arbitrators under Act 111, or any other Act, may not mandate that a governing body carry out an illegal act--remains viable. That ruling has been often reaffirmed and emphatically so in Chirico v. Board of Supervisors for Newtown Township, 504 Pa. 71, 74, 470...