No. 81-3-460, Appeal from the Order of the Commonwealth Court dated April 29, 1981, entered at No. 1042 C.D. 1980, affirming the Order of the Court of Common Pleas of Bucks County dated February 29, 1980, entered at No. 79-11146-13-6,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.
In this appeal we are called upon to decide whether the discharge of a tenured professional employee, in accordance with the procedures prescribed in the Public School Code of 1949*fn1 (Code) on the ground of "immorality" gives rise to a grievance under a collective bargaining agreement and is thus subject to mandatory arbitration under the Public Employee Relations Act (PERA).*fn2 Having concluded that such discharge is not a grievance arising out of the interpretation of the instant collective bargaining agreement (Agreement), we affirm the order of the Commonwealth Court, 59 Pa. Commw. 63, 428 A.2d 1023 (1981), sustaining the dismissal.
Robert Hess, a tenured teacher of the Neshaminy School District (District), was convicted on March 16, 1978 by a jury in the Court of Common Pleas of Bucks County of simple and aggravated assault, reckless endangerment, terroristic threats and felonious restraint, and was sentenced to fifteen days' limited confinement.*fn3 In April 1978 Hess received written notice from the Neshaminy District Board of School Directors (Board) to appear at a Board hearing on April 15, 1978. Following hearings on that date and on April 22, 1978, in which Hess participated, the Board on June 23, 1978
voted 6-3 to dismiss him. Formal dismissal was effected on June 27, 1978. Hess did not exercise his statutory right to appeal the Board's decision.
On August 18, 1978, Hess filed a demand for arbitration, pursuant to section 5-3 of the Agreement, alleging that he had been discharged without "just cause" and requesting reinstatement. On November 8, 1978 the District filed a complaint in equity against Hess, the Neshaminy Federation of Teachers (Federation) and the American Arbitration Association (Association) in the Court of Common Pleas of Bucks County. The District sought a temporary decree restraining the Association from holding a hearing on Hess's grievance. That request was denied.*fn4 The arbitrator, after conducting hearings, ruled that Hess's discharge was an arbitrable grievance pursuant to the Agreement and that Hess was dismissed without "just cause." Thus he ordered Hess's reinstatement.
The District appealed the arbitrator's award to the Court of Common Pleas of Bucks County. On February 29, 1980, that court granted the District's petition to set aside the award and upheld the dismissal, holding that while Hess's grievance was arbitrable, his dismissal by the Board for "immorality" was justified. On appeal from that decision, the Commonwealth Court rejected the arbitrability of the discharge and affirmed. This Court granted the Federation's petition for allowance of appeal.*fn5
The policy of this Commonwealth not only favors but mandates the submission to arbitration of public employee grievances "arising out of the interpretation of the provisions of a collective bargaining agreement." 43 P.S. § 1101.903; County of Allegheny v. Allegheny County Prison Employees Independent Union, 476 Pa. 27, 381 A.2d 849 (1977); Board of Education of the School District of Philadelphia Page 540} v. Philadelphia Federation of Teachers Local No. 3, AFT, AFL-CIO, 464 Pa. 92, 346 A.2d 35 (1975) (hereinafter Local No. 3, AFT). The issue of the scope of the grievance arbitration procedure under a given agreement is determined, in the first instance, by the arbitrator. Pittsburgh Joint Collective Bargaining Committee v. City of Pittsburgh, 481 Pa. 66, 391 A.2d 1318 (1978); Local 3, AFT, supra. Nevertheless, whether or not a matter is properly within the jurisdiction of the arbitrator depends upon the intention of the parties as expressed in the terms of the agreement. Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981); County of Allegheny v. Allegheny County Prison Employees Independent Union, supra; Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977). See also Independence Development, Inc. v. American Arbitration Association, 460 Pa. 390, 333 A.2d 781 (1975); Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 328 A.2d 498 (1974); Women's Society for Prevention of Cruelty to Animals v. American Arbitration Association, 440 Pa. 34, 269 A.2d 888 (1970). As we noted in Leechburg Area School District v. Dale, supra, the question of the arbitrability of a particular dispute
requires a determination as to whether the terms of the agreement encompass the subject matter of the dispute. Where it is determined that the subject matter of the dispute is encompassed within the terms of the agreement, the validity of the arbitrator's interpretation is not a matter of concern to the court.
Id. 492 Pa. at 520-521, 424 A.2d at 1312-1313.
Once it is determined the agreement encompasses the subject matter of the dispute, review of the arbitrator's finding is limited to whether the decision draws its essence from the collective bargaining agreement. This "essence" test is set forth in Community College of Beaver County v. Community College of Beaver County, Society of the Faculty, supra:
To state the matter more precisely, where a task of an arbitrator, PERA or otherwise, has been to determine the
intention of the contracting parties as evidenced by their collective bargaining agreement and the circumstances surrounding its execution, then the arbitrator's award is based on a resolution of a question of fact and is to be respected by the Judiciary if "the interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other ...