decided: July 18, 1977.
COUNTY OF DAUPHIN, APPELLANT
PENNSYLVANIA SOCIAL SERVICE UNION, APPELLEE
Appeal from an arbitration award in case of In the Matter of Arbitration between County of Dauphin and Pennsylvania Social Services Union, dated February 16, 1976.
Robert L. Rubendall, with him, of counsel, Leonard Tintner; Berman, Boswell, Snyder & Tintner ; and Metzger, Hafer, Keefer, Thomas & Wood, for appellant.
Stephen A. Sheller, with him Faye R. Cohen, and Pechner, Dorfman, Wolffe & Rounick, for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge Rogers.
[ 33 Pa. Commw. Page 458]
In March 1974, the County of Dauphin entered into a collective bargaining agreement with the Pennsylvania Social Service Union which provided reimbursement for the use by employees of their personal autobile at the rate of 14 cents per mile with an escalation clause based on the cost of gasoline. By November 1975, the agreement being still in effect, the effective rate of reimbursement for the use of automobiles was 18 cents per mile.
By the Act of May 31, 1974, P.L. 308, effective immediately, the General Assembly added a Section 414 to The County Code.*fn1 The new provision was as follows:
All county officials and employes may, when authorized by the county commissioners, be reimbursed at the rate of twelve cents (12 cents) per mile for the use of their personal vehicle when discharging their official duties or performing a duty imposed upon them unless provisions of law require the payment of a higher rate.
Apparently, Section 414 was not brought to the attention of the Dauphin County Commissioners until November 1975 at which time they ordered that reimbursement thereafter would be at the rate of 12 cents per mile fixed by the statute. The Union filed a grievance which eventually came to an arbitrator who decided that the County was obliged to pay reimbursement at the rate fixed by the collective bargaining agreement, Section 414 notwithstanding. The County has filed a petition for appeal of the arbitrator's award pursuant
[ 33 Pa. Commw. Page 459]
to Pa. R.J.A. No. 2101. The Union has filed a motion to quash the petition and an answer.
The Union's motion to quash is founded on the County's failure to appeal within thirty (30) days from February 7, 1976, a date that appeared on a letter from the arbitrator sent to counsel. In this letter the arbitrator informed counsel that his award was that the employer must pay reimbursement at the rate fixed in the collective bargaining agreement. The arbitrator further wrote that he was communicating his award in advance of a formal decision because he had promised a prompt decision and that he "[did] not expect that the formal decision in this case will be ready for issuance for another ten (10) days to two weeks." Under date of February 16, 1976, the arbitrator issued his formal decision containing findings, an extended discussion and a final order. The County's appeal was filed on March 9, 1976 but not within thirty (30) days after February 7, 1976. We view the arbitrator's letter of February 7, 1976 as merely an advance and informal notice of what the award would be. Under the circumstances of the case, the County's appeal taken within thirty (30) days from the date of the formal decision was timely. We dismiss the motion to quash.
We must reverse the arbitrator's award on the merits. Counties are governmental agencies of the State which possess only those powers which are expressly or impliedly conferred by constitutional provisions or legislative enactments. Counties are not municipal corporations, as are cities, boroughs and townships, and counties may not legislate independently of the Commonwealth's declared policy. Chester County v. Philadelphia Electric Company, 420 Pa. 422, 218 A.2d 331 (1966).
The case of Bechak v. Corak, 414 Pa. 522, 201 A.2d 213 (1964), deals with reimbursement by counties of
[ 33 Pa. Commw. Page 460]
travel expenses of its officers. There taxpayers of Beaver County sought to enjoin the payment of travel expenses to county commissioners, a county controller and the county treasurer. Judge Laub, the Chancellor, had preliminarily enjoined the payment of the expenses to all of these officers, who then appealed. The Supreme Court although noting The County Code provided that county commissioners and the county controller might be paid travel expenses, held that the injunction was properly granted because the payments were being proposed to be made in lump sums and without vouchers. Concerning the preliminary injunction with respect to payment to the county treasurer, Mr. Justice Roberts wrote for the Supreme Court as follows:
With regard to the County Treasurer, the court below concluded, and correctly so, that: 'There is no provision in the Code, however, for the payment of expenses to the County Treasurer except for attendance at State Association meetings, and our attention has been called to no other authorizing statute.'
In the absence of any express or implied authority in The County Code permitting the monthly expense vouchers for mileage traveled by the treasurer, his filing a monthly voucher and his receipt of public funds for expenses is clearly contrary to law.
414 Pa. at 527-28, 201 A.2d at 215-16.
General law, Bechak v. Corak, supra, establishes that the county has power to pay expenses only when and to the extent that the Legislature has granted that power. It is not disputed that there was no legislative grant of power to counties to pay any employees' travel expenses before Section 414 authorized such reimbursement at the rate of 12 cents per mile in May 1974.
[ 33 Pa. Commw. Page 461]
The Union agrees that Section 414's reference to 12 cents per mile established a maximum and is not merely a floor. Its argument is that the phrase "unless provisions of the law require the payment of a higher rate" authorizes a higher rate than the 12 cents per mile statutory maximum to be established by a collective bargaining agreement enacted pursuant to the Public Employe Relations Act (PERA).*fn2 The fallacy in this contention lies in the fact that it is not PERA or any other provision of law which establishes the 18 cents per mile reimbursement contended for, but a provision of a collective bargaining agreement. A holding that a term of a collective bargaining agreement is itself a provision of law would contravene Section 703 of PERA, 43 P.S. § 1101.703, which forbids the parties to a collective bargaining agreement to implement a term of the agreement which violates or is inconsistent with a statute.*fn3 Since, as the Union concedes, Section 414 of The County Code establishes a maximum of 12 cents per mile reimbursement, the provision of the collective bargaining agreement fixing reimbursement at higher rates is inconsistent and in conflict with and its implementation would violate Section 414 of The County Code.
Since we have concluded that the provision of the collective bargaining agreement if implemented would violate the statute referred to, it is not necessary to discuss other Union arguments except to remark that we have used Section 703 of PERA exactly as the language of P.L.R.B. v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975), quoted in the Union's brief requires; that is, as prohibiting the implementation
[ 33 Pa. Commw. Page 462]
of agreements which violate or are inconsistent with statutory directives.
Accordingly, we enter the following
And Now, this 18th day of July, 1977, it is ordered that the award of the arbitrator here appealed from, issued February 16, 1976, be and it is hereby set aside.
Award set aside. Previous order vacated. Award affirmed.