NOS. 9 & 10 EASTERN DISTRICT APPEAL DOCKET 1983, APPEAL FROM AN OPINION AND ORDER OF THE COMMONWEALTH COURT OF PENNSYLVANIA ENTERED JUNE 30, 1982, AT NO. 430 C.D. 1981, REVERSING AN ORDER OF THE COURT OF COMMON PLEAS OF PHILADELPHIA ENTERED FEBRUARY 10, 1981, AT NO. 901 APRIL TERM 1979, 67 Pa. Commonwealth Ct. 256,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., joins in Part II of this opinion. Roberts, C.j., files a concurring opinion in which Larsen, J., joins. Nix and Zappala, JJ., concur in the result. McDermott, J., did not participate in the decision of this case.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
The Board of Judges of the Philadelphia Court of Common Pleas (Judges) and the Pennsylvania Labor Relations Board (Board) filed these appeals from an order of Commonwealth Court reversing an order of Judge Melvin G. Levy of the Delaware County Court of Common Pleas, specially presiding. Judge Levy had held that appellees, the Official
Court Reporters of the Court of Common Pleas of Philadelphia County (Association), lacked standing to appeal from a final order of the Board which, on remand from this Court, had dismissed the American Federation of State, County and Municipal Employees' (AFSCME) petition for representation of the Association on the ground that the bargaining unit which included only court reporters was inappropriate. Commonwealth Court reversed determining that the Association had standing to appeal the Board's order vacating its certification of AFSCME and that the Board exceeded the scope of this Court's remand order when it reconsidered the issue of the appropriateness of the bargaining unit. We hold that Section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702, permitting "any person aggrieved by" an agency adjudication to appeal, is expressly inapplicable to appeals such as this, which "may be taken initially to the Courts of Common Pleas pursuant to 42 Pa.C.S. § 933."*fn1 Since the Association was not a "party who is aggrieved" within the meaning of Pa.R.A.P. 501*fn2 by the Board's order,
it lacked standing to appeal.*fn3 Consequently, the order of the Commonwealth Court is reversed and the order of the Board reinstated.
The significant history of this appeal dates back to November 14, 1974 when the Board held a hearing on AFSCME's petition for an election in a unit of court reporters of the Court of Common Pleas of Philadelphia, under the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, No. 195, 43 P.S. § 1101.101 et seq. The Association appeared through its President who stated that the Association would not intervene because it had no position on AFSCME's petition. At that hearing, the Judges were named the sole employer. On May 23, 1975, the Board issued an Order and Notice of Election in a unit comprised of all court reporters and excluding all other employees.
The Board conducted an election on June 11, 1975 and, on June 19, 1975, it issued a nisi order certifying AFSCME as the collective bargaining representative for the court reporters. On July 30, 1975 the Board dismissed the Judges' exceptions and made its certification order absolute and final. The Judges appealed alleging the Board lacked jurisdiction of the appeal because Common Pleas was not a "public employer" and the court reporters were not public employees within the meaning of PERA. Upon petition of the Judges this Court assumed plenary jurisdiction over the appeal and transferred the matter to Commonwealth Court.
In an opinion addressing this case and six similar cases, the Commonwealth Court affirmed the certification order of the Board holding that PERA includes court reporters of the First Judicial District and it is not an unconstitutional interference with an independent judiciary. County of Washington v. P.L.R.B., 26 Pa. Commonwealth Ct. 315, 364 A.2d 519 (1976). However, Commonwealth Court disapproved the Board's conclusion of law that the 1st Judicial District, in and by itself, is the "public employer" of the court reporters since the issue was not properly before it on appeal. Id. at 343, 346 A.2d at 532. The Judges appealed to this Court and we affirmed, holding that PERA applies to court reporters in the Philadelphia Court of Common Pleas and that such application does not interfere with the exclusive authority of the judiciary under article V, sections 1 and 10 of the Pennsylvania Constitution. We declined to decide whether Common Pleas is the proper managerial representative under PERA. Commonwealth ex rel. Bradley v. P.L.R.B., 479 Pa. 440, 388 A.2d 736 (1978).*fn4 However, it would
appear we recognized that the proper managerial representative had yet to be determined. Accordingly, we remanded the matter to the Board.
Acting on the remand order, the Board ordered oral argument on seven specific questions arising from the five decisions of this Court regarding employers and managerial representatives.*fn5 See supra n. 4. The Board's order directed all counsel who participated in the Supreme Court decisions as well as other interested parties to present oral arguments and briefs. The Board listed the Bradley decision as one of five Supreme Court decisions to be discussed.*fn6 Both AFSCME and the Judges appeared at oral argument on September 6, 1978 but the Association did not.
On February 6, 1979, without further notice or hearing, the Board vacated its order of July 30, 1975, which had certified AFSCME as the exclusive representative of the court reporters. The Board found that to certify a unit
constituting only court reporters would promote over-fragmentation.*fn7 The Board, thereupon, set aside the petition for representation which had been filed on August 5, 1974. On February 13, 1979, after the decision of the Board, the Association filed a petition with the Board to compel its decision.
AFSCME did not appeal from the Board's final order of February 6, 1979. The Association, however, filed a timely appeal to this Court. Upon application by the Board, we subsequently transferred the matter to the Court of Common Pleas of Philadelphia County, which had jurisdiction pursuant to section 933(a)(1)(vii) of the Judicial Code, 42 Pa.C.S. § 933(a)(1)(vii). With Delaware County Common Pleas Judge Levy specially presiding, that court affirmed the order of the Board based on its conclusion that the Association lacked standing to appeal.*fn8
Commonwealth Court reversed, initially determining that the Association had standing to challenge the February 6, 1979 order of the Board because it was a "person aggrieved" under section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702, by the Board's order vacating its prior certification of AFSCME as the exclusive representative of the court reporters. On the merits, Commonwealth Court determined that the Board exceeded the scope of our remand order when it rescinded on its own motion certification of AFSCME as the exclusive representative of the court reporters. Moreover, Commonwealth Court determined that the Board did not have power to review its prior order
absent a petition for reconsideration or the granting of a notice and an opportunity for the Association to be heard. Commonwealth Court also determined the specific questions included in the Board's order of August 21, 1978 ordering oral argument on remand did not adequately apprise the Association or the court reporters themselves that the certification order would be subject to review.
In considering the standing issue Commonwealth Court correctly reasoned that the Association was not a party to the proceedings before the Board. That is undisputed.*fn9 Thus our inquiry is whether the right to appeal from a Pennsylvania Labor ...