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SCHOLASTIC TECHNICAL SERVICE EMPLOYEES v. PENNSYLVANIA STATE UNIVERSITY (09/21/78)

decided: September 21, 1978.

SCHOLASTIC TECHNICAL SERVICE EMPLOYEES, THE PENNSYLVANIA STATE UNIVERSITY, LOCAL UNION NO. 8, APPELLANT
v.
THE PENNSYLVANIA STATE UNIVERSITY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Centre County in case of The Pennsylvania State University v. Scholastic Technical Service Employees, The Pennsylvania State University, Local Union No. 8, No. 1976-2649.

COUNSEL

Stephen H. Jordan, with him Herman L. Foreman, and Rothman, Gordon, Foreman and Groudine, P.A., for appellants.

John C. Gilliland, II, with him MacQuaide, Blasko & Brown, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt and DiSalle. Judge Wilkinson, Jr. did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge DiSalle. Judge Rogers joins in this dissenting opinion.

Author: Mencer

[ 37 Pa. Commw. Page 624]

This is an appeal from an order of the Court of Common Pleas of Centre County setting aside the award of an arbitrator which reinstated Thomas McDowell to his position as Patient Service Aide with the Hershey Medical Center of The Pennsylvania State University. We affirm the lower court.

The arbitrator's task in this case was to interpret the following provision of the collective bargaining agreement between the University and McDowell's union:

If an employee receives three (3) warning letters the employee shall be discharged; provided, however, that if an employee does not receive a warning letter for a twelve (12) month period, all warning letters received prior to said twelve (12) month period shall not be considered as one (1) of three (3) warning letters toward discharge, and such letters shall not be used in considering the employee for promotion or transfer.

The undisputed facts indicate that there was no 12-month period in which McDowell had not received a warning letter. He received warning letters on March 31, 1975, an April 11, 1975, and on April 9, 1976.

Applying these facts to the provision quoted above, the arbitrator concluded that "the lapse of a twelve-month period has the effect of eliminating from the record the warning letter issue prior thereto. The effect of such action is to remove from Mr. McDowell's record the letter dated March 31, 1975." The arbitrator therefore ordered McDowell's reinstatement. The lower court set this award aside, and this appeal followed.

[ 37 Pa. Commw. Page 625]

The scope of judicial review of an arbitration award entered pursuant to a collective bargaining agreement to which a public employer is a party is governed by Sections 10 and 11 of the Act of April 25, 1927, P.L. 381, as amended (Arbitration Act), 5 P.S. §§ 170, 171. Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977). Section 11(d) of the Arbitration Act, 5 P.S. § 171(d), provides that, "[w]here the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict," the reviewing court shall correct the award. "This language . . . seeks to establish between the reviewing court and the arbitrator's award the same relationship as traditionally exists between a reviewing court and a jury's verdict." Beaver County, supra, 473 Pa. at 589, 375 A.2d at 1273.

In a jury trial, the entry of judgment n.o.v. is proper where binding instructions should have been given at the close of the trial. See, e.g., American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529, 70 A. 867 (1908); 6A Standard Pennsylvania Practice § 163 (rev'd ed. 1960). "[W]hen no reasonable construction of the evidence would entitle defendant to a verdict, the court may properly give binding instructions in favor of the plaintiff." Maynard v. Lumberman's National Bank, 7 Sadler 399, 404, 11 A. 529, 530 (1887). Judgment n.o.v. should be entered only if reasonable minds cannot differ as to the validity of the moving party's ...


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