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MONTGOMERY COUNTY LODGE NO. 14 FRATERNAL ORDER POLICE AND DEPUTY SHERIFFS MONTGOMERY COUNTY v. COMMONWEALTH PENNSYLVANIA (03/17/81)

decided: March 17, 1981.

MONTGOMERY COUNTY LODGE NO. 14 FRATERNAL ORDER OF POLICE AND DEPUTY SHERIFFS OF MONTGOMERY COUNTY
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD AND BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, APPELLANT. MONTGOMERY COUNTY LODGE NO. 14 FRATERNAL ORDER OF POLICE AND DEPUTY SHERIFFS OF MONTGOMERY COUNTY V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD AND BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY. BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY, APPELLANT



Appeals from the Order of the Court of Common Pleas of Montgomery County in the cases of Montgomery County Lodge No. 14, Fraternal Order of Police and Deputy Sheriffs of Montgomery County v. Pennsylvania Labor Relations Board and the Board of Commissioners of Montgomery County, No. 79-19311.

COUNSEL

Anthony Busillo, Assistant Attorney General, with him James L. Crawford and Donald A. Wallace, for appellant, Pennsylvania Labor Relations Board.

George P. Wood, for appellant, Board of Commissioners of Montgomery County.

J. Peirce Anderson, with him Brian P. Sullivan, Kane, Pugh, Anderson, Subers & McBrien, for appellee.

Judges Craig, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 57 Pa. Commw. Page 540]

The Pennsylvania Labor Relations Board (Board) and the Board of Commissioners of Montgomery County (Commissioners) appeal from an order of the Court of Common Pleas of Montgomery County directing the Board to conduct a hearing on the Petition for Representation filed by Montgomery County Lodge No. 14, Fraternal Order of Police (F.O.P.). In its Petition for Representation, the F.O.P. was seeking to represent a bargaining unit comprised of deputy sheriffs of Montgomery County. The Board conducted no hearing on the petition, but issued a Nisi Order of Dismissal after determining that the deputies did not constitute an appropriate bargaining unit. The F.O.P. and the deputies filed exceptions to that order but these were dismissed by the Board as being without merit, and the Nisi Order was made final. On appeal to the Court of Common Pleas of Montgomery County, the court ruled that the basis for the Board's decision in dismissing the Petition for Representation was not articulated in such a manner as to allow for "meaningful review" by the lower court on appeal. The court then directed the Board to conduct a hearing in order to determine the following: (1) what people comprise the unit defined as deputy sheriffs; (2) the size and function of the unit; (3) whether or not the

[ 57 Pa. Commw. Page 541]

    present unit is essentially the same unit certified as an appropriate bargaining unit in Montgomery County Commissioners, 8 P.P. Er. 199 (1977);*fn1 (4) whether any or all of the deputies fall into a category segregated for special treatment pursuant to the Public Employe Relations Act*fn2 (PERA); (5) if any or all of the deputies are guards, is the F.O.P. an appropriate representative; and does it also represent "non guards" as prohibited by Section 604(3) of the PERA;*fn3 (6) what community interests exist between the deputies and other county employees; and, finally, (7) whether certification of the deputies would lead to over-fragmentization.

The Board and the Commissioners then filed an appeal to this Court. The appellees responded by filing a Motion to Quash, contending that the order of the court below directing a remand is an interlocutory, and not a final order, and is, therefore, unappealable.

Appellants contend that the determination of the court below that the Board's decision did not allow for meaningful review must be viewed as a determination that the Board abused its discretion when it dismissed the Petition for Representation without a hearing. As such, they argue, the decision is a final determination and falls within the rationale of our recent decision in Beaver Valley Intermediate Unit v. Pennsylvania Labor Relations Board, 50 Pa. Commonwealth Ct. 69, 411 A.2d 1311 (1980). We held in that case that a lower court's determination that the Board had abused its discretion by not considering untimely filed exceptions to its Nisi Order, constituted a final determination. Such a final determination is appealable to this court on the abuse of discretion issue.

[ 57 Pa. Commw. Page 542]

Appellants argue that while the court below did not expressly state that the Board abused its discretion, this conclusion is clearly implied by the ...


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