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CERTIORARI ARBITRATION AWARD BETWEEN BOROUGH HOLLIDAYSBURG AND HOLLIDAYSBURG POLICE DEPARTMENT ASSOCIATION. BOROUGH HOLLIDAYSBURG (12/20/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 20, 1982.

IN RE: CERTIORARI OF ARBITRATION AWARD BETWEEN BOROUGH OF HOLLIDAYSBURG AND THE HOLLIDAYSBURG POLICE DEPARTMENT ASSOCIATION. BOROUGH OF HOLLIDAYSBURG, APPELLANT

Appeal from the Order of the Court of Common Pleas of Blair County in case of In Re: Certiorari of Arbitration Award between Borough of Hollidaysburg and the Hollidaysburg Police Department Association, No. 1395 C.P. 1981.

COUNSEL

T. Dean Lower, for appellant.

M. David Halpern, Jubelirer, Carothers, Krier, Halpern & Smith, for appellee.

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

Author: Macphail

[ 70 Pa. Commw. Page 421]

The Borough of Hollidaysburg (Borough) has appealed from an order of the Court of Common Pleas

[ 70 Pa. Commw. Page 422]

    of Blair County which denied the Borough's challenge to an arbitration award entered pursuant to the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10 (commonly referred to as Act III).

At issue here is an arbitration award rendered after the Borough and the Hollidaysburg Police Department Association (Association) reached an impasse on two issues during collective bargaining negotiations for the 1981 contract year. This appeal is limited to the arbitrator's*fn1 award regarding the Borough's responsibility to pay legal expenses and attorneys' fees incurred by police officers who are required to defend themselves against criminal charges brought against them as a result of or in the course of the performance of their duties as police officers. The arbitrator determined that such expenses should be paid by the Borough under certain circumstances.*fn2

[ 70 Pa. Commw. Page 423]

The court of common pleas subsequently denied the Borough's challenge to the award, concluding that the arbitrator did not exceed his powers in rendering the award and that the subject of legal expenses and attorneys' fees was within the permissible scope of an arbitration award under Act III.

Our scope of review in a case of this nature is restricted to questions of jurisdiction, the regularity of the proceedings, questions of excess in the arbitrator's exercise of powers and constitutional questions. De Carbo, DeSanzo, Brest and Leymarie v. Elwood City, 3 Pa. Commonwealth Ct. 569, 284 A.2d 342 (1971). In the instant case the Borough contends that the arbitrator exceeded his powers by requiring the Borough to perform an illegal act because, they argue,

[ 70 Pa. Commw. Page 424]

    there is no statutory authority for the Borough to make such payments. The Association urges that the award should be upheld since there is no statutory prohibition against a borough making such payments.

Act III provides for collective bargaining between firemen or policemen and their employers and provides for binding arbitration when an impasse is reached. In reaching a collective bargaining agreement, it is clear that the municipal corporation can agree to exercise only those powers expressly conferred upon it by the legislature. Borough of Ambridge Appeal, 53 Pa. Commonwealth Ct. 251, 417 A.2d 291 (1980). An arbitration award is likewise circumscribed and has no validity where it would require the public employer to accept a duty in excess of its statutory powers. Cheltenham Township v. Cheltenham Township Police Department, 11 Pa. Commonwealth Ct. 348, 312 A.2d 835 (1973).

The Borough cites the case of Roofner's Appeal, 81 Pa. Superior Ct. 482 (1923) to support its argument that the arbitrator's award in this case requires the Borough to perform an act beyond its legal powers. In Roofner's Appeal, 81 Pa. Superior Ct. at 485, the Superior Court specifically held that:

Counsel fees and other expenses incurred by public officials in defending criminal charges, or charges of official misconduct, are incurred for a private purpose and cannot, in the absence of statutory prov ision therefor be paid from public funds. (Emphasis added.)

Our research has disclosed, however, that there is recent statutory authority which allows a borough to pay for certain legal costs incurred by its police officers. Section 1(b) of the Act of June 27, 1968 (Act of 1968), P.L. 271, as amended, 53 P.S. § 639(b) provides as follows:

[ 70 Pa. Commw. Page 425]

Any borough, town or township may, through collective bargaining or otherwise, enter into a written agreement by or on behalf of its police officers to pay specified and reasonable legal expenses and attorneys' fees incurred in the defense of any criminal action initiated against any such officer as a result of acts performed by such officer in the scope and course of employment as a police officer. Such agreement and/or payment shall be permitted only in criminal actions wherein the prosecution of charges against such officer has been withdrawn, dismissed or terminated by the entry of a nolle prosequi or by an adjudication of not guilty.

Thus, there was clear statutory authority for the Borough to engage in collective bargaining on the subject of legal defense expenses. See also Fiorelli v. City of Chester, 35 Pa. Commonwealth Ct. 279, 386 A.2d 1040 (1978) (reimbursement for legal fees is a permitted subject of collective bargaining under Act III). Similarly, this subject would be within the permissible scope of an arbitration award and such an award would be valid if consistent with the requirements of Section 1(b) of the Act of 1968.

Our analysis of the arbitrator's award in this case convinces us that certain aspects of the award are inconsistent with Section 1(b). For example, we note that the arbitrator does not recommend that a limit be placed on the amount allowed for a police officer's defense of a criminal prosecution. Section 1(b) requires, however, that the written agreement provide for the payment of " specified and reasonable legal expenses and attorneys' fees." (Emphasis added.) We believe that this provision requires that the agreement itself specify the maximum payment for which

[ 70 Pa. Commw. Page 426]

    a borough would be liable. Other provisions of the award are more difficult to analyze in comparison with Section 1(b).

We realize that neither the parties, the arbitrator nor the court of common pleas have considered the effect of Section 1(b) of the Act of 1968 on the award in this case. In light of the importance of Section 1(b) to the award here we think that, rather than undertake a detailed analysis of the award in this appeal, the more appropriate course would be to order a remand to enable the arbitrator to reconsider his actions in light of the requirements of Section 1(b). It is, of course, the arbitrator's duty in the first instance to draft the award and we believe that under the circumstances of this case he should be given an opportunity to exercise his authority pursuant to applicable law.

We, accordingly, will remand this matter to the court of common pleas for further proceedings consistent with the foregoing opinion.

Order

It is ordered that the order of the Court of Common Pleas of Blair County, dated December 8, 1981, is vacated and the case is remanded for further proceedings consistent with the foregoing opinion.

Disposition

Order vacated. Case remanded.


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