Fraternal Order of Police Lodge No. 5 v. City of Philadelphia

• Decision Date: 31 October 1988
• Citation: 120 Pa.Cmwlth. 610,549 A.2d 1014
• Parties: FRATERNAL ORDER OF POLICE, LODGE NO. 5, and Carmen Christy and Augustine Pescatore and Leonard Garris, Appellants, v. CITY OF PHILADELPHIA, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1014

549 A.2d 1014

120 Pa.Cmwlth. 610

FRATERNAL ORDER OF POLICE, LODGE NO. 5, and Carmen Christy and Augustine Pescatore and Leonard Garris, Appellants, v. CITY OF PHILADELPHIA, Appellee.

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 16, 1988.

Decided Oct. 31, 1988.

Anthony J. Molloy, Jr., Mozenter, Molloy & Durst, Philadelphia, for appellants.

Ralph J. Teti, Chief Deputy City Sol., Philadelphia, for appellee.

Before BARRY, PALLADINO and McGINLEY, JJ.

PALLADINO, Judge.

The Fraternal Order of Police, Lodge No. 5 (FOP) and Carmen Christy, Augustine Pescatore, and Leonard Garris (Grievants) appeal an order of the Court of Common Pleas of Philadelphia County (trial court) denying their appeal from a decision of an arbitrator in favor of the City of Philadelphia (City). We affirm.

Grievants were employed as police officers by the City. On July 20, 1984, Grievants were advised by the City that they were the subjects of a criminal investigation and were suspended pending dismissal. The City subsequently formally dismissed Grievants, with such dismissal retroactive to July 20, 1984. The City dismissed Grievants because, during a federal criminal trial involving fifteen other police officers employed by the City, Grievants were identified as participants in a police bribery and corruption scheme.¹ Grievants were not named as defendants in the federal action. However, two government witnesses, testifying under a grant of immunity, stated that Grievants, along with the named defendants, had accepted bribes from certain vice figures in exchange for protection from enforcement of gambling and liquor laws.²

Grievants filed grievances pursuant to the provisions of the collective bargaining agreement to which FOP and the City were parties, asserting that their dismissals had not been for just cause.³ The City's Police Commissioner denied the grievances at the initial stage and the matter was submitted to arbitration. At the hearings held before the arbitrator, the City presented the testimony of the two witness from the federal trial who testified as to Grievants' involvement in the bribery scheme.⁴ Based upon the evidence presented, the arbitrator determined that the City had established just cause for dismissing Grievants. Grievants and FOP then petitioned the trial court to vacate the award of the arbitrator. By order dated January 22, 1987, the trial court confirmed the arbitrator's award.

On appeal to this court, FOP and Grievants contend that the arbitrator erred in failing to sustain the grievances, alleging that the City dismissed Grievants solely on the basis of hearsay testimony and that the City did not follow its own operating procedures in determining whether to dismiss Grievants. FOP and Grievants also argue that the arbitrator included in his decision factual matters beyond the scope of the grievances submitted.

Our scope of review of an Act 111⁵ arbitration award is in the nature of narrow certiorari. Thus, we are limited to reviewing the jurisdiction of the arbitrator, the regularity of the proceedings, constitutional questions, and excesses in the exercise of the arbitrator's powers. Appeal of Upper Providence Township, 514 Pa. 501, 526 A.2d 315 (1987); City of Carbondale v. Fraternal Order of Police Lodge 63, 109 Pa.Commonwealth Ct. 325, 531 A.2d 76 (1987). An error of law which does not so exceed the powers and authority of the arbitrator (such as a misinterpretation or misapplication of law affecting a term or condition of employment that did not require the doing of a prohibited act by the employer) is not alone grounds for reversal of an Act 111 arbitration award. Appeal of Upper Providence Township.

FOP and Grievants first argue that the City improperly dismissed Grievants on the basis of hearsay testimony. Specifically, FOP and Grievants contend that there was no competent evidence which could support a "just cause" dismissal on July 20, 1984. FOP and Grievants argue that, as of that date, the City's evidence consisted solely of the uncorroborated hearsay testimony of the two witnesses at the federal trial to which Grievants and the City were not parties. Although FOP and Grievants do not argue that the testimony of the witnesses taken before the arbitrator constituted hearsay, they allege that the arbitrator should have sustained the grievances because the City improperly relied on hearsay testimony.

The arbitrator in this case concluded that the City had met its burden of proof to establish just cause for the dismissal of Grievants. Arbitrator's Award at 9. Whether the arbitrator should have evaluated the City's evidence as it existed on July 20, 1984, rather than as it existed at the later hearings before the arbitrator, amounts to, at most, a mere error of law and is not grounds for reversal. Appeal of Upper Providence Township. So long as the arbitrator's award draws its essence from the terms of the collective bargaining agreement, this court should end its inquiry and should not intrude upon the domain of the arbitrator simply because it believes that the arbitrator's interpretation might be "wrong." Allegheny County Police Association v. Allegheny County, 100 Pa.Commonwealth Ct. 327, 514 A.2d 964 (1986), appeal dismissed as improvidently granted, 516 Pa. 17, 531 A.2d 1108 (1987).

FOP and Grievants also contend that the City failed to follow its own procedures in deciding whether to terminate Grievants and, therefore, treated Grievants unfairly. FOP and Grievants assert that in other cases in which City police officers were suspected of wrongdoing and implicated...