Venneri v. Allegheny County

• Decision Date: 14 March 1974
• Citation: 12 Pa.Cmwlth. 517,316 A.2d 120
• Parties: Anthony D. VENNERI et al., Appellants, v. The COUNTY OF ALLEGHENY et al., Appellees.
• Court: Pennsylvania Commonwealth Court

Page 120

316 A.2d 120

12 Pa.Cmwlth. 517

Anthony D. VENNERI et al., Appellants, v. The COUNTY OF ALLEGHENY et al., Appellees.

Commonwealth Court of Pennsylvania.

Argued Nov. 9, 1973.

Decided March 14, 1974.

Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, Pittsburgh, for appellants

Thomas H. M. Hough, Asst. City Sol. and Sp. Labor Counsel, Francis A. Barry, Co. Sol., Pittsburgh, for appellees.

Before KRAMER, WILKINSON, and BLATT, JJ.

OPINION

KRAMER, Judge.

This is an appeal filed by Anthony D. Venneri, Arthur Belotti, Stephen Korol, Leo Campbell, Marion Tucker, Robert Thompson and Raymond Goga (appellants) from an order of the Court of Common Pleas of Allegheny County dated December 7, 1972, in effect dismissing the appellants' complaint in mandamus against the County of Allegheny, Leonard C. Staisey, Thomas J. Foerster, William R. Hunt, M.D. and Eugene Coon (appellees).

This case had its genesis on January 20, 1971, when appellants, all being duly appointed deputy sheriffs of the County of Allegheny, notified the appellees in writing of their desire to engage in collective bargaining under the Act of June 24, 1968, P.L. 237, No. 111, 43 P.S. § 217.1 et seq. (hereinafter referred to as Act 111). The appellees refused to so bargain, and on March 19, 1971 the appellants notified the appellees of their intention to file for compulsory and binding arbitration under Act 111. Thereafter, on April 12, 1971, appellants filed a complaint in mandamus seeking a judgment which would command the appellees to appoint an arbiter in compliance with Section 4 of Act 111, 43 P.S. § 217.4. One of the appellees, namely the Sheriff, filed an answer, in effect, admitting that his deputy sheriffs were policemen within the meaning of Act 111. The remaining appellees filed preliminary objections denying that the appellants were policemen within the terms of that act.

After hearing oral argument, a judge of the Court of Common Pleas of Allegheny County rendered an opinion and order wherein the court took judicial notice that the appellants were policemen and granted summary judgment ordering the appellees to binding arbitration under Act 111. Upon appeal to this court, we vacated that order and remanded the case back to the Court of Common Pleas of Allegheny County for the development of an evidentiary record. See Venneri v. County of Allegheny, 5 Pa.Cmwlth. 105, 289 A.2d 523 (1972).

Thereafter the remaining appellees filed an answer, and a full evidentiary hearing was held before a second judge of the court below. Thereafter, a second opinion and order were filed on December 7, 1972, holding that the appellants and all deputy sheriffs of the County of Allegheny were not policemen within the intent and meaning of Act 111. The complaint was dismissed and this appeal was taken.

The sole issue presented on appeal is whether the deputy sheriffs of Allegheny County are 'policemen' within the meaning of Act 111.

In an action in mandamus, our scope of review is to determine whether the court below abused its discretion or committed an error of law. Initially, it is of some import to note that this case was remanded to the court below for the specific purpose of making findings with respect to the duties of deputy sheriffs in Allegheny County. Therefore, we need only determine whether there is sufficient evidence to support the court's finding that such deputy sheriffs are not policemen. We are not permitted to substitute our findings for those made by the court below and we may not reverse the lower court unless there is a clear abuse of discretion. See Porter v. Bloomsburg State College, 450 Pa. 375, 301 A.2d 621 (1973); Verratti v. Ridley Township, 416 Pa. 242, 206 A.2d 13 (1965). All parties are in agreement that the final resolution of the question of whether such deputy sheriffs are in fact policemen resolves the question of law presented, i.e. whether such deputy sheriffs come within the purview of Act 111.

Anyone familiar with the development of public employes' collective bargaining rights in this Commonwealth realizes that prior to 1947, public employes were prohibited from engaging in strikes against their public employers. Furthermore, there were no statutory provisions for collective bargaining with respect to public employes. The Act of June 30, 1947, P.L. 1183, as amended, 43 P.S. § 215.1 et seq. (commonly referred to as the Anti-Strike Act) provided some statutory redress for grievances through the creation of conciliation panels. The award of the conciliation panel, however, was not binding upon the public employer. In Erie Firefighters Local No. 293 v. Gardner, 406 Pa. 395, 178 A.2d 691 (1962), our Supreme Court held that such arbitration awards were not binding upon a public employer, and that even if such provisions were made binding by statute, they would be in violation of Article III, Section 20 ¹ of the Pennsylvania Constitution, P.S. Thereafter, the Constitution was amended on November 7, 1967, so that Article III, Section 31 presently reads:

'The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever. Notwithstanding the foregoing limitation or any other provision of the Constitution, the General Assembly may enact laws which provide that the findings of panels or commissions, selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding upon all parties and shall constitute a mandate to the head of the political subdivision which is the employer, or to the appropriate officer of the Commonwealth if the Commonwealth is the employer, with respect to matters which can be remedied by administrative action, and to the lawmaking body of such political subdivision or of the Commonwealth, with respect to matters which require legislative action, to take the action necessary to carry out such findings.'

Pursuant to this constitutional amendment, Act 111 was passed by the Legislature. The first section of Act 111, 43 P.S. § 217.1 reads:

'Policemen or firemen employed by a political subdivision of the Commonwealth . . . shall, through labor organizations or other representatives designated by fifty percent or more of such policemen or firemen, have the right to bargain collectively with their public employers concerning the terms and conditions of their employment, including compensation, hours, working conditions, retirement, pensions and other benefits, and shall have the right to an adjustment or settlement of their grievances or disputes in accordance with the terms of this act.'

Nowhere in the Act is the term 'policemen' specifically defined, nor is there any reference whatsoever to 'deputy sheriffs'. In upholding the constitutionality of Act 111, our Supreme Court in Harney v. Russo, 435 Pa. 183, 255 A.2d 560 (1969), noted that the panels or commissions provided for under Article III, Section 31 must adhere to the mandates of the enabling legislation.

In order to round out the public employes collective bargaining picture, we must refer to the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, No. 195, 43 P.S. § 1101.101 et seq. (hereinafter referred to as Act 195). Act 195, by its terms, obviously was intended to cover all other public employes within the Commonwealth. Generally speaking, Act 195 is similar to Act 111. There are, however, two notable exceptions; (1) Act 195 generally does not provide for compulsory and binding arbitration, and (2) it does permit limited strikes under certain circumstances. Section 805 of Act 195, 43 P.S. § 1101.805, however, creates an exception to the general provisions of Act 195 and is relevant to this Opinion. That section reads:

'Notwithstanding any other provisions of this act where representatives of units of guards at prisons or mental hospitals Or units of employes directly involved with and necessary to the functioning of the courts of this Commonwealth have reached an impasse in collective bargaining and mediation as required in section 801 of this article has not resolved the dispute, the impasse shall be submitted to a panel of arbitrators whose decision shall be final and binding upon both parties with the proviso that the decisions of the arbitrators which would require legislative enactment to be effective shall be considered advisory only.' (Emphasis added.)

In this case, the appellants contend that they are policemen under Act 111 and this contention is admitted in the answer of the Sheriff-appellee. The remaining appellees, however, contend that deputy sheriffs are court-related employes and therefore subject to Act 195. As already indicated, the court below agreed with the remaining appellees (the County Commissioners).

The court below, in its opinion, delved deeply into the historical development of the sheriff's office, noting that the office antedates the Magna Carta. The lower court pointed out that a sheriff in this Commonwealth has been described as 'the principal conservator of the peace within his bailiwick'. See Commonwealth v. Vandyke, 57 Pa. 34, 39 (1868); Comonwealth v. Martin, 7 Pa.Dist.Rep. 219, 224--225 (1898); Charge to Grand Jury of Venango County, 23 Pa.C.C. 667, 668 (1900) ².

The record discoses that prior to the present sheriff's tenure of office, the operation of the sheriff's office was almost entirely related to court activities. The present sheriff has changed the scope of direction the operation of his office so as to include broader police work. There are 102 deputy sheriffs in Allegheny County. The office is regimented in the traditional military-police method of command. The deputy sheriffs wear uniforms, carry...