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CARY J. SKILES AND CHARLES W. COLSON v. CITY LANCASTER (05/24/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 24, 1976.

CARY J. SKILES AND CHARLES W. COLSON, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED EMPLOYEES OF THE FIRE DEPARTMENT OF THE CITY OF LANCASTER, APPELLANTS
v.
THE CITY OF LANCASTER, ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Lancaster County in case of Cary J. Skiles and Charles W. Colson, Individually and on Behalf of All Similarly Situated Employees of the Fire Department of the City of Lancaster v. The City of Lancaster, Julia F. Brazil, Thomas P. McElwee, Benjamin H. High, Jack B. Metzger, Eugene W. Rhinier, Howard M. Sager, Kenneth I. Witmer, Richard M. Scott, Samuel Loss and Earl Schmuckler, No. 69 April Term, 1974.

COUNSEL

Richard Kirschner, with him Richard H. Markowitz, Stephen C. Richman, Robert S. Pearlstein, and Markowitz & Kirschner, for appellants.

Stephen J. Weglarz, with him Michael J. Lotito, and Barley, Snyder, Cooper & Mueller, for appellees.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr. did not participate. Opinion by Judge Blatt. Judge Kramer did not participate in this decision in this case.

Author: Blatt

[ 24 Pa. Commw. Page 581]

This is an appeal from a decision of the Court of Common Pleas of Lancaster County, dated July 11, 1975, which sustained the defendant's preliminary objections to the plaintiff's class action petition for a Writ of Mandamus and dismissed the petition. The City of Lancaster (City) and Local 319, International Association of Firefighters, AFL-CIO (Union) had entered into collective bargaining negotiations and, pursuant to Section 4 of Act 111,*fn1 had submitted the question of wage parity between

[ 24 Pa. Commw. Page 582]

    city firemen and city policemen to binding arbitration. The decision of the Board of Arbitrators, dated December 17, 1974, provided a salary schedule for firemen which was fifty dollars less per year than the equivalent classification for policemen with respect to longevity increments.*fn2

The appellants*fn3 here filed an action in mandamus to have the city equalize the salaries of firemen pursuant to City Ordinance 315-1/2, dated November 2, 1943, which provides, inter alia, that

"the compensation and salaries of employees of the Lancaster City Fire Department be equalized with the compensation and salaries of other civil service employees now employed by the City of Lancaster, Pa."*fn4

[ 24 Pa. Commw. Page 583]

The court below, in a comprehensive opinion by Judge W. Hensel Brown, ruled that it lacked subject matter jurisdiction and sustained the preliminary objections, finding that the instant action was, in effect, an appeal from the Act 111 arbitration panel's award and that, therefore, the appeal procedure was governed by Pa. R.J.A. No. 2101, which provides as follows:

"(a) Review of an award of arbitrators appointed in conformity with an Act of Assembly to arbitrate a dispute between a public employer and employee shall be sought excusively in the Commonwealth Court. The application for review shall be filed within thirty (30) days after the date of the award of the arbitrators."

It is clear that any review of the arbitrator's award must be taken pursuant to this rule. In DeCarbo, DeSanzo, Brest and Leymarie v. Elwood City, 3 Pa. Commonwealth Ct. 569, 572, 284 A.2d 342, 343 (1971), we held that

"[s]section 7(a) of [Act 111], 43 P.S. ยง 217.7(a), clearly provides that '[t]he determination of the majority of the board of arbitration thus established shall be final on the issue or issues in dispute and shall be binding upon the public employer and the policemen or firemen involved. . . . No appeal therefrom shall be allowed to any court. . . .' In Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969), it was held that where an appeal is prohibited by statute, or the decision of a panel is stated to be final, an appeal will lie to the Supreme Court only in the nature of a narrow certiorari, and the subjects of review are: (1) the question of jurisdiction; (2) the regularity of the proceedings before the panel; (3) questions of excess in exercise of powers; and (4) constitutional questions."

In Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA),

[ 24 Pa. Commw. Page 58417]

Pa. Commonwealth Ct. 231, 235, 331 A.2d 921, 923 (1975), we held that Pa. R.J.A. No. 2101

"was intended to at least afford judicial review of arbitration awards issued under the provisions of [Act 111], requiring binding arbitration in labor disputes between police and firemen and their employing political subdivision upon impasse in the collective bargaining process. . . . It seems clear that Pa. R.J.A. No. 2101 is intended to afford a limited right to seek judicial review of arbitration awards issued under that statute as being 'an award of arbitrators appointed in conformity with an Act of Assembly to arbitrate a dispute between a public employer and employe.'"

Inasmuch as appellants here failed to file an appeal pursuant to Pa. R.J.A. No. 2101 the lower court properly dismissed their petition.

The appellants argue, of course, that they do not seek to overturn or to review the arbitration award, but to enforce an independent city ordinance through the action of mandamus. We agree with the court below

"that such an assertion is entirely inconsistent with the institution of this action and plaintiffs' position to date. It is inconceivable to this Court, that when a complaint (which itself pleads the award) seeks relief which is inconsistent and contrary to a binding Act 111 arbitration award and a party to that award is attempting not to be bound thereby, that such an award is not being overturned, reviewed or appealed. Without question the plaintiffs are asking this Court to review and overturn a binding arbitration award issued pursuant to Act 111. Such request is clearly an appeal from said arbitration award in the guise of a mandamus action." (Emphasis in original.)

The appellants further argue that the authorities cited for the proposition that appeals from awards of arbitrators must be taken pursuant to Pa. R.J.A. No. 2101 do

[ 24 Pa. Commw. Page 585]

    not apply here because they deal with situations where the award is "excessive" and here the award has not gone "far enough" in ordering relief, the salary levels granted being less than those which the union demands (i.e. "parity" with the police salaries). It is contended, therefore, that, because the instant case deals with an allegedly deficient award, a fortiori, the award is not in excess of the power conferred upon the arbitrator by law,*fn5 so that Pa. R.J.A. No. 2101 is not applicable and an action in mandamus is appropriate. It is obvious that this contention fails to recognize that a board of arbitrators acts in excess of its authority whenever it grants an improper award, without regard to whether the award is challenged as being "excessive" or "deficient."

We, therefore, issue the following

Order

And Now, this 24th day of May, 1976, the order of the Court of Common Pleas of Lancaster County, dated July 11, 1973, is affirmed and the appellant's appeal is hereby dismissed.

Judge Kramer did not participate in this decision in this case.

Disposition

Affirmed.


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