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FRATERNAL ORDER POLICE v. EUGENE F. HICKEY (12/07/82)

decided: December 7, 1982.

FRATERNAL ORDER OF POLICE, E.B. JERMYN LODGE # 2, BY THOMAS P. TOLAN, JR., PRESIDENT, TRUSTEE AD LITEM, APPELLANT,
v.
EUGENE F. HICKEY, MAYOR OF THE CITY OF SCRANTON; JAMES MCDONNELL, DIRECTOR OF PUBLIC SAFETY; RICHARD ROSSI, JACK T. HARTE, JAMES A. DOHERTY, MICHAEL MELNICK, PAUL CATALANO, COUNCILMEN OF THE CITY OF SCRANTON; JOSEPH CORCORAN, CONTROLLER OF THE CITY OF SCRANTON; EUGENE COSGROVE, TREASURER OF THE CITY OF SCRANTON; AND THE CITY OF SCRANTON, PENNSYLVANIA



No. 80-3-527, Appeal from the Order of the Commonwealth Court Dated June 5, 1979 at No. 1622 C.D. 1978, Affirming the Order Entered June 22, 1978 of the Court of Common Pleas of Lackawanna County, Civil Action - Law, in Mandamus, at No. 710 March Term, 1978

COUNSEL

Anthony P. Moses, Wilkes Barre, for appellant.

John J. Brazil, Ralph J. Iori, Jr., Asst. City Sols., for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., concurs in the result. Roberts, J., files a dissenting opinion joined by Flaherty and Hutchinson, JJ.

Author: Nix

[ 499 Pa. Page 196]

OPINION

In this appeal, the underlying facts and the chronology of events are not in dispute. The legal question raised for our consideration is whether a provision in the collective bargaining agreement between the City of Scranton (City) and the members of its Police Department is enforceable. We hold that this provision, that was voluntarily agreed to by the City during the bargaining process, cannot now be objected to by the City or its officials on the basis of its alleged illegality.

The clause in controversy was agreed upon on January 1, 1973, as part of a two-year agreement between the City and the members of its police force. The clause in controversy reads as follows:

That, the Chief of Police, and in the event the City shall employ a Commissioner of Police, or Superintendent of Police or some other similar plan, the person who fills the position must come from the ranks of the Scranton Police Department.

This clause together with the rest of the agreement was approved by the City Council and was continued in effect through calendar years 1975-76, 1977 and 1978, as part of the collective bargaining agreement and subsequent binding arbitration awards between the parties. From the clause's adoption in 1973 until 1978, its legality was not challenged. In 1978, a newly elected mayor appointed an individual in the position of Superintendent of Police for the City of Scranton who, although well qualified for the position, did not come from the ranks of the Scranton Police Department. The collective bargaining representative for the city's police officers, the Fraternal Order of Police (F.O.P.) instituted an action in mandamus requesting the removal of the mayor's appointee and the appointment of a person in accordance

[ 499 Pa. Page 197]

    with the clause in question. Subsequent to the filing of an answer, the F.O.P. filed a motion for preemptory judgment. After hearing upon the motion, the trial court issued an order dismissing the mandamus action. That action was affirmed by the Commonwealth Court.

The trial court and the Commonwealth Court focused upon whether the subject matter of the contract clause was a suitable subject for collective bargaining under the Act of June 24, 1968, P.L. 237, § 111, § 1 et seq. 43 § 217.1 et seq (Supp. 1981-82) (Act 111). The more pertinent question is whether the city or one of its officials should be allowed to raise the question at this late date.

In Pittsburgh Joint Collective Bargaining Committee v. City of Pittsburgh et al, 481 Pa. 66, 391 A.2d 1318 (1978), we held that the City of Pittsburgh could not assert the defense that a grievance arbitration procedure to which it had agreed in the bargaining process was in conflict with various provisions of the Civil Service Act, 53 P.S. § 23401 et seq. (1957 & Supp. 1978-79), such that the implementation of the procedure was prohibited by section 703 of the Public Employee Relations Act of 1970, (PERA) 43 P.S. § 1101.703 (Supp. 1978-79). In reaching this conclusion, we observed that the collective bargaining process was applied to the public sector on the premise that it would further harmonious relationships between the public employer and the employe and thereby result into a more effective and efficient operation for the taxpayer. However, to carry out that objective it was imperative that the integrity of the collective bargaining process not be undermined. In Pittsburgh, supra, we reflected that commitment to the integrity of the process by refusing to permit a city to challenge the validity of a grievance arbitration it had agreed to follow.

So too, in Ambridge Borough Water Authority v. Columbia, 458 Pa. 546, 328 A.2d 498 (1974), we refused to permit a governmental unit employer from asserting its own ...


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