John R. DeAngelis, Pittsburgh, for appellant.
James S. Ruffner, Craig & Ruffner, Aliquippa, Thomas H. M. Hough, Lucchino, Gaitens & Hough, Pittsburgh, for appellee.
Lewis F. Adler, J. R. Colton, Harrisburg, for amicus curiae.
Thomas H. Lane, John D. Thrush, Sp. Counsel for Com. of Pennsylvania, Harrisburg, for intervenor appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Nix, J., did not participate in the consideration or decision of this case. Roberts and Manderino, JJ., filed concurring opinions.
We granted allowance of appeal in this case to consider two questions of public employee labor law to which we adverted but left unresolved in an earlier opinion.*fn1 First, does the Arbitration Act of 1927, 5 P.S. §§ 161-181, apply to arbitrations conducted pursuant to collective bargaining agreements governed by the Public Employee Relations Act of 1970 ("PERA"), Act of July 23, 1970, P.L. 563, No. 195, Art. I, § 101 et seq., 43 P.S. §§ 1101.101-1101.2301 (Supp.1976-77); and second, if so, what is the standard of judicial review applicable where the arbitrator's award is based on an interpretation of the collective bargaining agreement?*fn2
It is unnecessary at this point to give the particulars of the dispute giving rise to this appeal. Suffice it to say that pursuant to a retrenchment program, the appellee-College discharged two full-time faculty members; the propriety of this action is not here questioned. Later, the College created certain part-time positions, to which new employees were appointed. The sole issue in arbitration was whether under the collective bargaining agreement the two retrenched teachers had employment rights with respect to the part-time positions. The arbitrator held that they did; the Commonwealth Court disagreed, and set aside the award. Community College of Beaver County v. Community College of Beaver County (Society of the Faculty PSEA/NEA), 17 Pa. Commw. 231, 331 A.2d 921 (1975). This appeal followed.
At the threshold of this case we are met with a procedural question involving jurisdiction to review arbitration awards in public employment situations. The question is whether a challenge to the arbitrator's award by the aggrieved party (here the employer-College) should be made in the court of common pleas or in the Commonwealth Court.
At the time of the arbitrator's award in this case (April, 1974) access to judicial review of the award could be sought through either of two inconsistent avenues. One, section 13 of the Arbitration Act of 1927, 5 P.S. § 173, provided generally that within three months after the filing of the arbitrator's award a motion to vacate, modify or correct the award could be filed in a court of common pleas.*fn3 The second approach was afforded
by a Rule of Judicial Administration, Pa.R.J.A. 2101 (since superseded), which provided:
"Review of Arbitration Awards in Public Employment Disputes.
(a) Review of an award of arbitrators appointed in conformity with an Act of Assembly to arbitrate a dispute between a public employer and employe shall be sought exclusively in the Commonwealth Court. The application for review shall be filed within thirty (30) days after the date of the award of the arbitrators."
The Commonwealth Court held that Pa.R.J.A. 2101 was applicable to contract interpretation arbitrations pursuant to PERA collective bargaining agreements and that the rule, which we had adopted in May, 1973 without explanatory comment, took precedence over the contrary procedure set forth as section 13 of the Arbitration Act of 1927. 17 Pa. Commw. 231, 331 A.2d 921 (1975). We think it was correct in so holding.
It is urged upon us by the Community College*fn4 and by the Commonwealth, as intervenor, who seek to assure what they consider to be the broader scope of review obtainable under the Act of 1927, that Pa.R.J.A. 2101 should be taken as applying only to what are termed "interest" arbitrations such as arise under Act No. 111, 43 P.S. § 217.1 et seq. (Supp.1976-77) (collective bargaining between police and fire units and their public employers), and not to arbitrations involving interpretation of PERA collective bargaining agreements. Thus they argue that the court of common pleas was the proper forum in which to seek review of the instant award.
We note that since the date of the Commonwealth Court's decision in this case Pa.R.J.A. 2101 has been superseded by Rule 703 of our new Rules of Appellate Procedure and by Rule 247 of the Rules of Civil Procedure. Rule 703 provides:
"Arbitration Awards in Public Employment Disputes
A petition for review of an award of arbitrators appointed in conformity with statute to arbitrate a dispute between the Commonwealth and an employee of the Commonwealth shall be filed in the Commonwealth Court. The petition for review shall be subject to Chapter 15 (judicial review of governmental determinations) and shall be deemed an appeal from an administrative agency for the purposes of Rule 1101(a)(1) (appeals as of right from the Commonwealth Court)."
This Rule became effective July 1, 1976. By its terms it covers only review of arbitration awards in disputes between the Commonwealth and its employees, whereas Pa.R.J.A. 2101 embraced disputes between all public employers and their employees. Accordingly, a new Rule of Civil Procedure, Pa.R.C.P. 247, was promulgated concurrently, and likewise became effective on July 1, 1976. It provides:
"Review of Arbitration Awards in Local Public Employment Disputes
(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 not within the scope of Rule 703 of the Pennsylvania Rules of Appellate Procedure shall be sought exclusively in the courts of common pleas. The application for review shall be filed within thirty (30) days after the date of the award of the arbitrators."
Explanatory comment which accompanied the promulgation of both Pa.R.A.P. 703 and Pa.R.C.P. 247 notes that
the rules relate to "arbitrators such as those appointed under the Act of June 24, 1968, P.L. 237, 43 ...