decided: October 27, 1978.
FRANK CONLEY, JOSEPH FRIEL AND THEODORE POKOY,
CLARE JOYCE, CONTROLLER, CITY OF CHESTER, THOMAS MCCUE, DEPUTY DIRECTOR OF ACCOUNTS AND FINANCE, CITY OF CHESTER, AND HOWARD MACNEILLY, TREASURER, CITY OF CHESTER, APPELLANTS IN NO. 347. FRANK CONLEY, JOSEPH FRIEL AND THEODORE POKOY, APPELLANTS IN NO. 348, V. CLARE JOYCE, CONTROLLER, CITY OF CHESTER, THOMAS MCCUE, DEPUTY DIRECTOR OF ACCOUNTS AND FINANCES, CITY OF CHESTER, AND HOWARD MACNEILLY, TREASURER, CITY OF CHESTER, AND JOHN H. NACRELLI, CLEMENT J. MCGOVERN, JR., ALEXANDER V. OSOWSKI, LEO S. HOLMES, AND JAMES SHARP, COMPRISING THE CHESTER CITY COUNCIL
Nos. 347 & 348 January Term, 1977, Appeal from the Order of the Commonwealth Court of Pennsylvania, at Nos. 117 and 129 C D. 1976, Modifying the Order entered by the Court of Common Pleas, Delaware County, dated December 17, 1975 at No. 5194 of 1973.
Levy & Levy, Melvin G. Levy, Louis J. Sinatra, Chester, for appellants at No. 347 and appellees at No. 348.
Richard, Brian, DiSanti & Hamilton, Alexander A. DiSanti, Upper Darby, for appellants at No. 348 and appellees at No. 347.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Larsen, JJ. Manderino, J., did not participate in the consideration or decision of this case.
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OPINION OF THE COURT
City of Chester police instituted a complaint in mandamus in the Court of Common Pleas of Delaware County. They seek the City of Chester's compliance with the "overtime" provision of an arbitration award entered by a Board of Arbitration pursuant to Act 111.*fn1 Under the overtime provision, "[e]ach member of the [Chester police] department shall receive time and a half for all time in excess of 320 hours worked during an eight week period." The award further provides: "Overtime for duty as a witness in a criminal court shall be paid for only as straight time and civil court time shall not constitute overtime."*fn2
[ 482 Pa. Page 266]
The parties have stipulated that the claim of officer Joseph Friel would be dispositive of the claims of all officers. According to the stipulation, Friel on several occasions worked in excess of 320 hours in eight weeks and appeared in criminal court "during his off duty time."*fn3
The court of common pleas concluded that Section 2004 of the Third Class City Code,*fn4 53 P.S. § 37004 (as amended Supp.1978), places an upper limit upon the compensable working hours of Chester police officers. Under Section 2004, "[n]o city shall employ or require any police officer to remain on duty for more than eight hours in any twenty-four consecutive hours, nor more than forty-four hours in any one week, unless in emergency cases for the suppression of riots or tumults or the preservation of the public peace . . . ."*fn5 The court of common pleas therefore held the award unenforceable to the extent that it permits additional pay for non-emergency hours worked in excess of the daily and weekly limits of Section 2004. The trial court applied Section 2004 to the entire overtime award, including the "overtime for duty as a witness in a criminal court" provision. The court upheld the award in all other respects. Thus, it directed the City to pay overtime in accordance with the award for the hours not in excess of the express limits of Section 2004 of the Code.
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Both parties appealed to the Commonwealth Court. The Commonwealth Court affirmed the court of common pleas' determination that the award could not be enforced beyond the limits of Section 2004. But the Commonwealth Court limited the scope of Section 2004 to "on-duty" services. It therefore upheld the award of overtime pay, in its entirety, for "off-duty" hours spent as a witness in criminal court as a result of law enforcement activities. Like the court of common pleas, the Commonwealth Court upheld the award in all other respects. We granted both parties' petitions for allowance of appeal.*fn6
Chester police contend that, regardless of the limits imposed by Section 2004 of the Third Class City Code, all overtime resulting from scheduled duty, including that in excess of 320 hours in an eight week period, should be compensated at "time and a half" rates.*fn7 The City urges that overtime within the limits of Section 2004 should be compensated at regular hourly rates ("straight time").*fn8 The City also asserts that "off-duty" hours in criminal court are, like scheduled duty hours, subject to the limits of Section 2004. We hold that "off-duty" hours spent in criminal court are subject to the limitations of Section 2004 of the Third Class City Code and modify the order of the Commonwealth Court accordingly. We affirm the order as modified.
I. Scope of Section 2004
Section 2004 of the Third Class City Code provides:
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" Hours of service; exceptions; vacations
No city shall employ or require any police officer to remain on duty for more than eight hours in any twenty-four consecutive hours, nor more than forty-four hours in any one week, unless in emergency cases for the suppression of riots or tumults or the preservation of the public peace: Provided, That for the duration of any war in which the United States is engaged, and six months thereafter, the hours of service may exceed the number hereinbefore provided as the maximum number of hours of service, and in such cases, council shall provide for the payment of extra compensation for any hours of service in excess of such maximum hours of service, at the same rate as paid for regular service. Nothing contained herein shall prevent any such city from requiring any such police officer to remain on duty or to work sixteen hours in any twenty-four consecutive hours, nor more than one day each week, if required by a change in working hours or a change in shifts. Cities shall permit every member of the police department to have at least twenty-four consecutive hours of rest in every calendar week, except in emergency cases for the suppression of riots or tumults or the preservation of the public peace, in times of war, riot, conflagration, or public celebrations, and to have an annual vacation of not less than fourteen days without diminution of the salary or compensation fixed by ordinance. When the mayor declares an emergency and requires police officers to remain on duty overtime such officers shall be compensated on the basis of their annual salary."
Thus, in the exceptional circumstances of "war" or "emergency," third class city police officers may be "employ[ed] or require[d] . . . to remain on duty" in excess of eight hours per twenty-four hour period and in excess of forty-four hours per week. But the parties have stipulated that the Mayor of Chester did not declare an emergency during the period Officer Friel worked beyond Section 2004's express limitation and neither party claims that the "war" exception is apposite. Section 2004 provides the additional
[ 482 Pa. Page 269]
exception to the eight hour rule for "changes in working hours or . . . shifts;" again, however, nothing in the record demonstrates that Officer Friel's claim is based upon this additional exception.
An arbitration award under Act 111 which requires a city to perform an act in conflict with the laws of the Commonwealth is not enforceable. City of York v. Reihart, 475 Pa. 151, 379 A.2d 1328 (1977); Washington Arbitration Case, 436 Pa. 168, 177, 259 A.2d 437, 442 (1969) ("an arbitration award may only require a public employer to do that which it could do voluntarily"). The Board of Arbitration's award directs the City of Chester to compensate police officers for scheduled overtime services, rendered in non-exceptional circumstances, in excess of the express limits of Section 2004. Therefore, both the court of common pleas and Commonwealth Court properly held unenforceable this portion of the arbitrators' overtime award.
Chester police assert that they are regularly scheduled by the City to work in excess of the limits of Section 2004. According to the police, the City's practice justifies enforcement of the award. The Commonwealth Court, in response to this contention, observed:
"If this practice is, in fact, prevalent, the police must seek their remedy through the grievance procedure or, if necessary, through the courts, but in no event can they be compensated in violation of an express statutory provision."
Conley v. Joyce, 27 Pa. Commw. 468, 473, 366 A.2d 1292, 1294 (1976). We agree with the Commonwealth Court. There can be no enforcement of an award in violation of Section 2004 of the Code.
II. "Time and a Half" For Lawful Overtime
The award provides "[e]ach member of the department . . . time and a half for all time in excess of 320 hours worked during an eight week period." The City concedes the lawfulness of overtime pay for "all time in excess of 320 hours worked during an eight week period" but less than the
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limits of Section 2004. It contests only the "time and a half" rate of pay.
The City points to Section 2004's limitation upon the rate of pay for overtime in emergencies. Section 2004 directs third class city councils, in emergencies, to "provide for the payment of extra compensation for any hours of service in excess of such maximum hours of service, at the same rate as paid for regular service." But Section 2004's limitation upon rate of pay addresses the unique, unpredictable circumstances of an emergency which, according to the parties' stipulation, has not occurred here. Section 2004 must be read in conjunction with the City's authority under Section 2001 of the Code to "fix, by ordinance, the number, grades and compensation of the members of the city police force. . . ."*fn9 No other provision of the Third Class City Code circumscribes this authority.*fn10 The City of Chester's
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unqualified statutory authority to "fix, by ordinance, the number, grades and compensation" of police officers encompasses the authority to provide overtime pay at "time
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and a half" rates and therefore the Board of Arbitration could lawfully award a "time and a half" rate of pay.
III. "Overtime" For Hours Spent In Criminal Court
Under the award, "[o]vertime for duty as a witness in a criminal court shall be paid for only as straight time and civil court time shall not constitute overtime." The Commonwealth Court concluded that Section 2004's daily and weekly limitation does not apply to overtime hours spent in criminal court occurring when Officer Friel is "off-duty." We agree with the City that Section 2004 applies whether Officer Friel is "off-duty" or not. The City does not deny Officer Friel compensation when he is a witness in criminal court during his regular duty hours.*fn11 His hours spent in criminal court, whether occurring while on or off duty, are a direct result of his law enforcement duties. Hourly compensation for either "on-duty" or "off-duty" hours spent in criminal court reflects the existence of precisely the same employment relationship between Officer Friel and the City of Chester. In these circumstances, it must be concluded that Section 2004 applies to Officer Friel's "off-duty" hours spent in criminal court. A holding to the contrary would circumvent the express limitation of Section 2004.
On the other hand, we find no statutory bar to overtime pay where hours spent in criminal court fall within the lawful limits of Section 2004 and the award's definition of overtime. It is true that City of York v. Reihart, 475 Pa. 151, 379 A.2d 1328 (1977), invalidated an ordinance providing third class city police officers $15 "for each day or portion thereof" spent in criminal court during "off-duty" hours. This Court concluded that the ordinance, enacted as a result
[ 482 Pa. Page 273]
of an arbitration award under Act 111, provided police officers a "fee" proscribed by the general municipal law,*fn12 and Section 2008 of the Third Class City Code.*fn13 But no statute bars a third class city from compensating overtime.*fn14 Moreover, unlike the fee in City of York, the payments contemplated by the present arbitration award genuinely relate to "the number of hours or amount of time actually engaged in performing [the] function [of spending time in court]." Id., 475 Pa. at 160, 379 A.2d at 1332.
Further, the "danger to our concept of law enforcement," id., 475 Pa. at 162, 379 A.2d at 1333, present in the fee system proscribed in City of York simply does not exist here. In City of York we expressed concern that "payment for appearing as a witness might easily be transformed into a payment for each arrest the officer or a colleague makes to which he can be noted as a witness." On this record, however, there is no clear or predictable relationship between an arrest by an officer and the officer's potential entitlement to additional compensation as a court witness. Both Section 2004 of the Third Class City Code and the arbitration award place restrictions upon the number of hours of compensable overtime. Under the award, those hours spent in criminal court which may lawfully be compensated under Section 2004 and which fall within the award's definition of overtime are treated the same as time spent performing other duties. The award further contemplates only limited, hourly overtime, rather than a lump sum
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fee. City of York is therefore in complete harmony with the result we reach today.
Order of the Commonwealth Court modified. As modified, order affirmed.