Chirico v. Board of Sup'rs for Newton Tp.

• Decision Date: 22 February 1984
• Docket Number: Nos. 66,s. 66
• Citation: 470 A.2d 470,504 Pa. 71
• Parties: James CHIRICO, Thomas Newby, III Brian McNeill, Appellants-Appellees, v. BOARD OF SUPERVISORS FOR NEWTON TOWNSHIP, Appellee-Appellant. E.D. 1982 and 67 E.D. 1982.
• Court: Pennsylvania Supreme Court

Page 470

470 A.2d 470

504 Pa. 71

James CHIRICO, Thomas Newby, III Brian McNeill, Appellants-Appellees, v.BOARD OF SUPERVISORS FOR NEWTON TOWNSHIP, Appellee-Appellant.

Nos. 66 E.D. 1982 and 67 E.D. 1982.

Supreme Court of Pennsylvania.

Argued Oct. 24, 1983.

Decided Dec. 30, 1983.

Reargument Denied Feb. 22, 1984.

[504 Pa. 72] Alexander A. DiSanti, Media, for appellants in No. 66 and for appellees in No. 67.

Joanne R. Denworth, Philadelphia, for appellant in No. 67 and for appellee in No. 66.

Thomas L. Wenger, Harrisburg, for amicus, Pa. State Assoc. of Twnsp.Supervisors.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION

NIX, Justice.

These appeals raise two issues: 1) may a dispute regarding the interpretation of a provision of an arbitration award be resolved in an action in mandamus for enforcement of the arbitration award, and 2) may the question of an alleged illegal provision in an arbitration award be addressed in the enforcement action when no appeal was taken from the issuance of the award.The Commonwealth Court, 63 Pa. Cmwlth. 591, 439 A.2d 1281, held that the remedy for resolution of disputes regarding interpretation of an arbitration award is further arbitration.We agree and affirm.The Commonwealth Court also held that it is fatal not to appeal from an arbitration award asserted to be illegal.Under the instant facts, we disagree and reverse.

I.

Following an impasse in collective bargaining between the Newton Township Police Department(Department) and the Board of Supervisors for Newton Township(Township), a board of arbitrators was appointed pursuant to the Act of June 24, 1968, P.L. 237, N. 111, 43 P.S. 217.1, (Act 111).The board entered an award on December 27, 1974, establishing the terms and conditions of employment for the police officers for the calendar year 1975(1975 award).On May 5, 1975, the Department filed a complaint in mandamus in the court of common pleas to compel the Township to implement certain provisions of the 1975 award.While this action was pending, on November 29, 1975, another board of arbitrators entered an award for the calendar year 1976(1976 award), which was incorporated into the instant action by an amended complaint.Neither party filed an appeal from either of these awards.

The court of common pleas, after interpreting the meaning of the phrase "vacation week", refused to enforce certain ambiguous provisions of the awards to the extent that such provisions in its opinion were contrary to law.

The Department appealed to the Commonwealth Court from that part of the trial court's order interpreting "vacation week".The Township cross-appealed from the trial court's determination regarding the legality of certain provisions in the awards.The Commonwealth Court held that the common pleas court did not have jurisdiction to interpret a provision of an award, because interpretation is within the province of the arbitrators.The Commonwealth Court also held that the defense of illegality of award provisions may not be raised outside the appeals process.That Court thus reversed the trial court's refusal to enforce certain aspects of the provisions alleged to be illegal.

II.

Considering the issue presented by the cross-appeal first, we reaffirm this Court's well-settled position regarding the enforcement of an illegal provision of an arbitration award.In this Commonwealth arbitration panels may not mandate that a governing body carry out an illegal act.Conley v. Joyce, 482 Pa. 263, 269, 393 A.2d 654, 657(1978), Washington Arbitration Case, 436 Pa. 168, 177, 259 A.2d 437, 442(1969).See, City of York v. Reihart, 475 Pa. 151, 379 A.2d 1328(1977).See alsoGrottenthaler v. Pennsylvania State Police, 488 Pa. 19, 410 A.2d 806(1980)(dictum).The 1975 award provided for the payment of sixty-five percent of salary for a non-service connected disability pension.¹The 1976 award established, prior to an actuarial study, elective retirement at age fifty-three, after twenty-five years of service.²The Township's defense of illegality was directed against the claim for enforcement of these provisions.It was argued by the Township that the Act of May 29, 1956, P.L.(1955)1804 § 5, as amended, 53 P.S. § 771, which provides the authority for disability pensions for police, is limited to service connected disabilities.³The lower court reasoned that section 771 did not preclude such non-service-connected disability pensions and thus such pensions may be mandated to the limit set forth in the section.The Commonwealth Court refused to consider the question of illegality and ascribed therefore the fact that the Township had not filed an appeal from the arbitration award which it deemed to be fatal under the law of Poiarkoff v. Town Council, Borough of Aliquippa, 39 Pa. Commonwealth Ct. 604, 396 A.2d 75(1979).Poiarkoff chose to follow the Commonwealth Court's earlier distinction ⁴ between the language in Washington Arbitration Case, supra, 436 Pa. at 173, n. 3, 259 A.2d at 440, n. 3⁵ and the nature of the alleged illegality raised in Harney v. Russo, 435 Pa. 183, 255 A.2d 560(1969)(constitutionality of Act 111 raised by way of a defense in a mandamus action).In DeCarbo v. Elwood City, 3 Pa. Commonwealth Ct. 569, 284 A.2d 342(1971), that Court saw a meaningful distinction between attempting to negate, by modification, the provision of an award or the award itself and a frontal attack on the Act based on constitutional grounds.On appeal in this Court, the Department relies upon Pa.R.J.A. 2101(a)⁶ which was in effect at the time of the issuance of both awards.It chose not to rely upon the Commonwealth Court's basis of Poiarkoff v. Town Council, Borough of Aliquippa, supra.The Department urges that the exclusivity of the Commonwealth Court's jurisdiction to hear appeals from arbitration awards under Pa.R.J.A. 2101(a) precludes consideration of the illegality question in a mandamus action.It rests primarily upon Skiles v. City of Lancaster, 24 Pa. Commonwealth Ct. 580, 358 A.2d 131(1976).That reliance is misplaced however.In Skilesthe plaintiff/firemen brought an action in mandamus to compel compliance with a city ordinance that mandated equalization of the salaries and compensation of fire department employees and other civil service employees.An arbitration award, pleaded in the complaint, had violated the ordinance by awarding the firemen $50.00 less than had been awarded policemen for longevity increments.No appeal had been taken from the award.The Commonwealth Court held that the plaintiffs were improperly attempting to obtain review of the award by their action in mandamus based upon the city ordinance.Thus, Skiles did not expand Pa.R.J.A. 2101(a) to vitiate a defense of illegality of an arbitration award in a mandamus action.Rather, Skiles prohibited mandamus as an alternative action for a party dissatisfied with an arbitration award; it did not eliminate a defense to a mandamus action.

The party charging illegality here does not seek review by instituting an action in mandamus.Rather the Township defends on the ground it cannot be required to carry out an illegal act.

At this juncture we reemphasize that:

[A]rbitrators may not mandate that a governing body carry out an illegal act.Grottenthaler v. Pennsylvania State Police, supra;Washington Arbitration Case436 Pa. 168, 259 A.2d 437(1969).However, as recognized in Grottenthaler, supra, a distinction must be drawn between situations where an arbitration panel attempts to mandate a governing body, over its objection, to carry out an illegal act and situations where the governmental unit employer attempts to belatedly avoid compliance with a term of a bargaining agreement it voluntarily agreed to during the bargaining process, and thereby secure an unfair advantage in the bargaining process.

Fraternal Order of Police v. Hickey, 499 Pa. 194, 199, 452 A.2d 1005, 1008(1982)(plurality opinion).

In Hickey, mandamus was sought to enforce a collective bargaining agreement provision voluntarily agreed to by the City of Scranton during the bargaining process.We held that good faith bargaining is not met by permitting the governmental employer to avoid its obligations by subsequently raising the question of legality of the agreed to provision; thus, the governmental employer is estopped from raising the defense.Here the contested provisions were as a result of an arbitration award and not an agreement voluntarily entered into by the parties.Thus, there is no basis for applying the equitable principle of estoppel when the provision sought to be enforced is an award provision.Therefore, when a party to an award of an arbitration panel seeks to have enforcement of an alleged illegal provision of such an award, the courts of this Commonwealth may not enforce that provision without a determination as to its legality.

III.

We next consider the contention of the Department that the Commonwealth Court erred in holding that the arbitrator, not the common pleas court, has jurisdiction over the dispute involving the interpretation of the phrase "vacation week".

Article 8 of the 1975 award specified the police officer's entitlement to one to five weeks of vacation, depending upon length of service.The term "week", for vacation purposes was not defined in the award in 1975, although it was defined in the 1976 award.

For many years, the scheduling of the police officers had been done according to a rotating schedule involving an eight-day cycle, the police officers being scheduled to work six days and then having two days off.It had, admittedly, long been the practice of the township to provide vacation during a six-day work week.Immediately after the start of the 1975 calendar year, the township changed the practice and allowed the police to take their vacations only during weeks in which they were scheduled to work five days.The...