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COMMONWEALTH PENNSYLVANIA v. ASSOCIATION PENNSYLVANIA STATE COLLEGE AND UNIVERSITY FACULTIES (10/25/79)

decided: October 25, 1979.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
ASSOCIATION OF PENNSYLVANIA STATE COLLEGE AND UNIVERSITY FACULTIES, BY AND THROUGH ITS PRESIDENT, RICHARD HAZLEY, RESPONDENT



Appeal from an arbitration Award in case of In the Matter of the Arbitration between Commonwealth of Pennsylvania, Department of Education, East Stroudsburg State College and Association of Pennsylvania State College and University Faculties, Grievance No. 76-77-4.

COUNSEL

Robert J. Schwartz, Assistant Attorney General, with him John D. Raup, Assistant Attorney General, for petitioner.

Jerome H. Gerber, with him Elliot A. Strokoff, and Handler and Gerber, P.C., for respondent.

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

Author: Mencer

[ 46 Pa. Commw. Page 609]

The Commonwealth of Pennsylvania (Commonwealth) has filed a petition for review of an arbitration award directing it to afford relief to Donald R.

[ 46 Pa. Commw. Page 610]

Bortz, a member of the Association of Pennsylvania State College and University Faculties (Union).

Bortz is a professor with the East Stroudsburg State College. In 1976, Bortz was asked to assume the administrative position of Director of the Educational Development Center (EDC). Bortz was reluctant to accept the position because, under the provisions of the collective bargaining agreement between the Commonwealth and the Union, the Director of EDC was not entitled to certain benefits to which teaching professors were entitled. However, Bortz accepted the position upon receiving assurances that he would be permitted to retain these benefits.

Bortz was subsequently denied benefits to which he would have been entitled had he remained a teacher, and the Union filed a grievance on his behalf, pursuant to the grievance provisions of the collective bargaining agreement. The grievance proceeded to arbitration, where the arbitrator ruled that Bortz had no right to the benefits under the terms of the agreement. Nevertheless, the arbitrator held that Bortz was entitled to relief on the theory of promissory estoppel, as set forth in the Restatement of Contracts ยง 90 (1932). The Commonwealth's petition for review in this court followed.

It is by now axiomatic that "an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). When an arbitrator relies not upon the collective bargaining agreement to support an award but upon the Restatement of Contracts, it is apparent that he has exceeded his authority. Cf. In re Arbitration Between Ringgold Area School District, Donora Senior High School and Ringgold Education Association, 24 Pa. Commonwealth Ct. 266, 356

[ 46 Pa. Commw. Page 611]

A.2d 842 (1976) (award based upon alleged oral agreement not drawn from "essence" of contract). That is precisely what the arbitrator did in this case, ...


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