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BOROUGH NEW CUMBERLAND v. POLICE EMPLOYEES BOROUGH NEW CUMBERLAND (12/01/83)

decided: December 1, 1983.

BOROUGH OF NEW CUMBERLAND
v.
POLICE EMPLOYEES OF THE BOROUGH OF NEW CUMBERLAND, APPELLANT



No. 36 E.D. Appeal Docket, 1982, Appeal from the Order of the Commonwealth Court at No. 2369 C.D. 1979, entered December 29, 1981, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Roberts

[ 503 Pa. Page 18]

OPINION OF THE COURT

This is an appeal by allowance from an order of the Commonwealth Court, 63 Pa. Commw. 441, 439 A.2d 849, reversing an order of the Court of Common Pleas of Cumberland County which upheld an arbitration award entered by a three-member arbitration board pursuant to "Act 111," Act of June 24, 1968, P.L. 237, § 1 et seq., 43 P.S. § 217.1 et seq. (Supp.1983). The Commonwealth Court construed Act 111 to require impartiality on the part of all three arbitrators, and thus invalidated the award on the ground that the arbitrator appointed by appellant, Police Employees of the Borough of New Cumberland, had consulted with the Police and had actively sought to advance their interests during the panel's deliberations. The Commonwealth Court also held that the award was void because the arbitration board did not render an award within thirty days of the appointment of its third member. Because the Commonwealth Court has misconstrued Act 111, we reverse.

The Police and appellee, the Borough of New Cumberland, were parties to a labor contract which expired on December 31, 1978. In 1978, after an impasse had been reached in the negotiation of a new contract, the Police invoked their right under Act 111 to have the contract dispute resolved through binding arbitration. See Borough of New Cumberland v. Police Employees of New Cumberland, 51 Pa. Commw. 435, 414 A.2d 761 (1980).

The composition of arbitration panels convened pursuant to Act 111 is governed by section 4(b) of the Act, which provides:

"The board of arbitration shall be composed of three persons, one appointed by the public employer, one appointed by the body of policemen or firemen involved, and

[ 503 Pa. Page 19]

    a third member to be agreed upon by the public employer and such policemen or firemen. The members of the board representing the public employer and the policemen or firemen shall be named within five days from the date of the request for the appointment of such board. If, after a period of ten days from the date of the appointment of the two arbitrators appointed by the public employer and by the policemen or firemen, the third arbitrator has not been selected by them then either arbitrator may request the American Arbitration Association or its successor in function, to furnish a list of three members of said association who are residents of Pennsylvania from which the third arbitrator shall be selected. The arbitrator appointed by the public employer shall eliminate one name from the list within five days after publication of the list, following which the arbitrator appointed by the policemen or firemen shall eliminate one name from the list within five days thereafter. The individual whose name remains on the list shall be the third arbitrator and shall act as chairman of the board of arbitration. The board of arbitration thus established shall commence the arbitration proceedings within ten days after the third arbitrator is selected and shall make its determination within thirty days after the appointment of the third arbitrator."

43 P.S. § 217.4(b).

In accordance with the above provision of the Act, the Borough selected Thomas A. Beckley, Esquire, who represents appellee on this appeal. Beckley was later replaced by Richard W. Stewart, Esquire,*fn1 and the Police selected a second arbitrator, Thomas J. Garvey, Esquire. The third member, Charles E. Freeman, Esquire, was selected by both party-appointed arbitrators, and designated chairman on April 10, 1979.

[ 503 Pa. Page 20]

The three-member board held its first hearing on May 17, 1979, at which both the Borough and the Police participated and presented evidence. Following that hearing, the board met again and agreed that the two party-appointed arbitrators should attempt to resolve outstanding issues. Both party-appointed arbitrators then executed written waivers of the provision of section 4(b) of the Act which requires the board to "make its determination within thirty days after the appointment of the third arbitrator." 43 P.S. § 217.4(b). On July 6, 1979, an award was signed by the board over the dissent of the arbitrator appointed by the Borough.

The Commonwealth Court's determination that Act 111 requires impartiality on the part of party-appointed members of the board was based on references in section 4(b) to the party-appointed members as ...


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