Fort Wayne Patrolman's Benev. Ass'n, Inc. v. City of Fort Wayne

• Decision Date: 25 August 1980
• Docket Number: No. 3-877A214,3-877A214
• Parties: 107 L.R.R.M. (BNA) 3051 The FORT WAYNE PATROLMAN'S BENEVOLENT ASSOCIATION, INC., Plaintiff-Appellant, v. The CITY OF FORT WAYNE, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1295

408 N.E.2d 1295

107 L.R.R.M. (BNA) 3051

The FORT WAYNE PATROLMAN'S BENEVOLENT ASSOCIATION, INC. Plaintiff-Appellant, v. The CITY OF FORT WAYNE, Defendant-Appellee.

No. 3-877A214.

Court of Appeals of Indiana, Fourth District.

Aug. 25, 1980.

Rehearing Denied Oct. 15, 1980.

See 411 N.E.2d 630.

Stephen L. Williams, Snouffer, Haller & Colvin, Fort Wayne, for plaintiff-appellant.

William N. Salin and Larry J. Burke, Carol A. Angel, Associate City Atty., Fort Wayne, for defendant-appellee.

CHIPMAN, Judge.

Fort Wayne Patrolman's Benevolent Association, Inc., (PBA) appeals from a grant of summary judgment in favor of the City of Fort Wayne. The PBA argues the trial court's judgment should be reversed because it was premised upon an erroneous interpretation of the Public Employee Labor Relations Act, Ind.Code 22-6-4-1 to 22-6-4-13 (hereinafter, the Act). The PBA also argues that since this Act was declared unconstitutional by our Supreme Court after the entry of summary judgment herein, ¹ this judgment should be reversed. According to the PBA, summary judgment should be entered, instead, in its favor since the PBA takes the position it is entitled to judgment as a matter of law.

Because we agree with the trial court that there are no genuine issues as to any material facts and that the City of Fort Wayne is entitled to judgment as a matter of law, we affirm the trial court's entry of summary judgment in favor of the City of Fort Wayne and its denial of the PBA's motion for summary judgment. We also affirm the court's judgment in so far as it held the collective bargaining agreement entered into by the former Mayor of Fort Wayne and representatives of the PBA was void.

Judgment affirmed.

Granting a motion for summary judgment is proper only when the pleadings and other matters filed with the court reveal there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Rules of Trial Procedure, Trial Rule 56(C); Randolph v. Wolff, (1978) Ind.App., 374 N.E.2d 533; Johnson v. Motors Dispatch, Inc., (1977) Ind.App., 360 N.E.2d 224. A material fact is one which tends to facilitate the resolution of any of the issues either for or against the party having the burden of persuasion on that issue. Stuteville v. Downing, (1979) Ind.App., 391 N.E.2d 629. In determining whether such a genuine issue In the case at bar, neither party contends there is any genuine issue of material fact. According to the PBA, "the inquiry on appeal is confined to questions of law," which when properly resolved, show the PBA is entitled to judgment in its favor as a matter of law. After reviewing the record, we find we are constrained to disagree with the PBA.

of material fact exists, the facts set forth by the opponent must be taken as true, and all doubts are resolved against the proponent of the motion. Crase v. Highland Village Value Plus Pharmacy, (1978) Ind.App., 374 N.E.2d 58. Even though there are conflicting facts and inferences on some elements of a claim, summary judgment may be proper where there is no dispute or conflict regarding a fact which is dispositive of the litigation. Stuteville v. Downing, supra; Hayes v. Second National Bank of Richmond, (1978) Ind.App., 375 N.E.2d 647.

The record shows that on August 8, 1975, Ivan Lebamoff, as Mayor of the City of Fort Wayne, entered into a Recognition Agreement with the PBA, under the terms of which the City of Fort Wayne purportedly recognized the PBA as the collective bargaining representative of all Fort Wayne patrolmen. Approximately two months later, on October 7, 1975, the Fort Wayne Common Council passed a resolution approving the Recognition Agreement between the Mayor and the PBA. This resolution provided:

"WHEREAS, heretofore the City of Fort Wayne, Indiana by its Mayor has recognized that Fort Wayne Patrolman's Benevolent Association, Inc. represents a majority of those officers of the Fort Wayne, Indiana Police Department, both uniform and non-uniform, holding the rank of Patrolman, but expressly excepting civilian employees of said Fort Wayne Police Department; and,

WHEREAS, a copy of said Agreement is attached hereto and marked Exhibit A; ² and,

WHEREAS, Fort Wayne Patrolman's Benevolent Association, Inc. has requested the Common Council of the City of Fort Wayne to join in said recognition by the Mayor of the City of Fort Wayne of said Patrolman's Benevolent Association, Inc.; and,

WHEREAS, the Common Council of the City of Fort Wayne after due consideration NOW THEREFORE BE IT RESOLVED: That the Common Council of the City of Fort Wayne, Indiana hereby joins in the Mayor's recognition of Fort Wayne Patrolman's Benevolent Association, Inc. as the exclusive bargaining representative for the officers in the units described in attached Exhibit A hereto, and does further approve said Exhibit A attached hereto.

of the matter has concurred in said recognition of said Fort Wayne Patrolman's Benevolent Association, Inc., as the collective bargaining representative for the Police Officers in the units described in said attached Exhibit A hereto;

Following recognition of the PBA as the collective bargaining representative for patrolmen, the Mayor, through his representatives entered into a process of collective bargaining with the PBA which culminated on November 25, 1975, when a collective bargaining agreement was reached. This agreement was designed to determine the wages, hours, and working conditions of Fort Wayne patrolmen. It was allegedly executed for the City of Fort Wayne by two negotiators and approved by the Mayor.

In January 1976 a new mayoral administration assumed office and thereafter notified the PBA it was disaffirming the collective bargaining agreement:

This letter is written to you on behalf of the City of Fort Wayne in connection with the purported contract dated November 24, 1975, but signed November 25, 1975, by Messrs. Raymond E. Nelson and James M. Huntine, negotiators for the City of Fort Wayne and approved by Ivan A. Lebamoff, former Mayor of the City of Fort Wayne. This purported contract also was signed by . . . individuals representing the Patrolmen's Benevolent Association, Indiana Chapter # 1.

As you know, this purported contract has not been adopted, ratified, nor executed by the Board of Safety, nor by the Common Council of the City of Fort Wayne. No funds have been appropriated to provide for the financial benefits contemplated over and above the present salary and benefits schedule.

The purpose of this letter is to formally notify you that the contract is disaffirmed by Mayor Armstrong prior to the contract being submitted to the Board of Safety and the Common Council of the City of Fort Wayne. That action of the former Mayor of the City of Fort Wayne in approving said contract and the action of the negotiators for the City of Fort Wayne in executing said contract is hereby revoked.

The dispositive issue is whether the City had the right to refuse compliance with this agreement.

The PBA contends the collective bargaining agreement was a valid and binding contract, the validity of which the City should have been estopped from denying. According to the PBA, as a matter of law, it is entitled to summary judgment in its favor upholding the validity and enforceability of this agreement. It argues governmental entities have the implicit authority to recognize exclusive bargaining representatives of public employees including policemen, to bargain collectively with such representatives, and to enter into valid and binding collective bargaining agreements.

The trial court held the collective bargaining agreement was void based upon its interpretation of the legislature's intent in excluding policemen from the Act. The court concluded the exclusion of policemen from the Act's provisions for collective bargaining between public employees and their governmental employer was intended to operate as a prohibition upon police participating in collective bargaining; consequently, the court declared the collective bargaining agreement was void and entered summary judgment in favor of the City on April 20, 1977.

It is apparent the court's entry of summary judgment was based upon its interpretation of the Act. July 12, 1977, the Indiana Supreme Court held this Act, IC 22-6-4-1 to 22-6-4-13, was unconstitutional.

Indiana Education Employment Relations Board v. Benton Community School Corporation, (1977) Ind., 365 N.E.2d 752. This decision came approximately one month after the PBA's motion to correct errors had been denied. On appeal, the City argues that since the PBA failed to challenge the constitutionality of the Act in the trial court, any issue regarding its constitutionality may not be addressed now on appeal, including addressing the question the PBA poses regarding what effect the Indiana Supreme Court's holding in Benton should have upon this entry of summary judgment. We note that while an attack upon the constitutionality of a statute may not be first launched at the appellate level, Linville v. Shelby County Plan Commission, (1972) Ind., 281 N.E.2d 884; In re Wardship of Bender, (1976) Ind.App., 352 N.E.2d 797, since allegations of error must be properly raised in the trial court in order to be preserved for appellate review, Southerland v. Calvert, (1974) Ind.App., 320 N.E.2d 803, this maxim is inapposite to the situation at bar. There clearly is a distinction between arguing we should find a statute unconstitutional as opposed to asking us to recognize that a statute has been declared unconstitutional while a case was awaiting appellate review. In the former case we are being asked to find the law void; in the latter, we are merely being asked to be cognizant of its voidance. In arguing we should decide this case in light of Benton, we do not believe the PBA has improperly raised a constitutional challenge for the first time on appeal.

The City has also asserted...