Appeal from an Order of Board of Arbitration in case of In the Matter of the Arbitration Between Cheltenham Township Police Department and Cheltenham Township, AAA Case No. 14-39-0796-71J. Appeal transferred from the Supreme Court of Pennsylvania to the Commonwealth Court of Pennsylvania, February 9, 1972.
Gilbert P. High, Jr., with him Samuel H. High, Jr., Walton Coates, and High, Swartz, Roberts & Seidel, for appellant.
Stanley M. Shingles, with him Fineman and Fineman, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
Following unsuccessful collective bargaining, pursuant to the Act of June 24, 1968, P.L. , No. 111 (Act 111), 43 P.S. § 217.1, appellant, Cheltenham Township, and appellee, Cheltenham Police Department, submitted the issues in dispute to binding arbitration as provided by Section 4 of Act 111, 43 P.S. § 217.4. On December 21, 1971, the Board of Arbitration made the award now being challenged in part by appellant. Appellant filed a Petition for Certiorari in the Supreme Court of Pennsylvania under Rule 68-1/2 which was granted on February 9, 1972. The Order granting the Petition also transferred the matter to this Court for disposition on the merits.
The award of the Board of Arbitration was unanimous and contained seventeen Articles. Article XVI provided that all disputed requests made by either party, other than those specifically granted or denied in whole or in part, were denied. Appellant, Cheltenham Township, challenges four of the Articles dealing with four disputed requests. We will treat them separately.
"Each member of the bargaining unit shall be eligible for retirement at age fifty-three (53), if he has completed twenty-five (25) years of service." Section 1 of Act 111, 43 P.S. § 217.1, specifically includes retirement within the permissible scope of collective bargaining. Thus, as a legitimate term or condition of employment, a dispute over matters of retirement can be submitted to an Act 111 arbitration panel. Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969).
While we conclude that the subject of this Article was properly before the arbitrators, our review must also determine whether the terms of Article VI will require the appellant to "perform any duty or take some action which is impliedly or specifically prohibited by the statutory law governing its affairs". Allegheny County Firefighters, Local 1038, International Association of Firefighters v. Allegheny County, 7 Pa. Commonwealth Ct. 81, 86, 299 A.2d 60, 62 (1973). The pertinent statutory law, Section 3 of the Act of May 29, 1956, P.L. 1804 (1955), as amended, 53 P.S. § 769, provides: "Each ordinance or resolution establishing a police pension fund shall prescribe a minimum period of total service in the aggregate of twenty-five years . . . and shall fix the age of the members of the force at fifty-five years, or, if an actuarial study of the cost shows that such reduction in age is feasible, may fix the age of the members of the force at fifty years, after which they may retire from active duty. . . ." (Emphasis supplied.) Assuming the statute permits retirement age to be fixed at any point between age fifty (50) and age fifty-five (55), by candid admission of both parties in their briefs, as well as at oral argument, no actuarial study was made to determine that the reduction to age fifty-three (53) was feasible. Therefore, to compel the appellant to implement Article VI of the award in the absence of an actuarial study showing the feasibility of the retirement age of fifty-three (53) would contravene an express statutory requirement. Therefore, the Award of the Board of Arbitration contained in Article VI must be set aside.
Article VIII. Residency Requirement
"A. On and after January 1, 1972, all present members of the bargaining unit may reside outside of the Township limits, ...