Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of James L. Campbell, Charles Kelly, Gerard Fisher, Ervin Sniegocki, Wayne Mason, Harold Lane, Donald Smith, John Crawford, Michael Cheberenchick v. Castle Shannon Borough, F. Patrick O'Brien, Donald J. Baumgarten, George L. Felicetti, Anthony J. Nedzesky, Edward A. Obringer, Calvin T. Swoager, Raymond T. Brannon, Members of Council, and Carl J. Daube, Mayor, No. GD 78-26915.
Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, for appellants.
Timothy P. O'Reilly, McArdle, Caroselli, Spagnolli & Beachler, for appellees.
Judges Rogers, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
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The present case is before this Court on appeal from an order of the Court of Common Pleas of Allegheny County which dismissed exceptions filed by members of the Castle Shannon Borough police department (Appellants) to a verdict of the common pleas court and the dismissal of the Appellants' action in mandamus seeking to enforce a provision of an arbitration award issued under Act 111.*fn1
Paragraph five of the arbitration award which Appellants sought to enforce in their mandamus action provides that "[n]o part-time officer shall be employed or utilized unless there is a genuine emergency. Emergency will be given its usual and customary
[ 83 Pa. Commw. Page 266]
meaning of a sudden, unexpected and unforeseen happening over which the employer had no control. This shall not apply to school crossing guards." By a resolution passed August 14, 1978, the Borough advised Appellants that it would not honor this provision based on its belief that the provision was illegal. After a hearing, the common pleas court concluded (1) that Paragraph five of the award was an impermissible limitation on the powers of the Borough, and (2) that the arbitrators who issued the award were without jurisdiction to do so, since the award was issued outside the thirty-day time period mandated by Act 111. The court accordingly dismissed the complaint. Exceptions filed to this decision were dismissed and the present appeal followed.
Before this Court, Appellants challenge both grounds advanced by the common pleas court in support of its decision. Since we agree with the common pleas court's decision that the arbitrators' untimely determination may not be honored, although we are not fully in agreement with the court's reasoning, we will affirm.
Section 4 of Act 111*fn2 provides in pertinent part that "[t]he board of arbitration . . . shall commence the arbitration proceedings within ten days after the arbitrator is selected and shall make its determination within thirty days after the appointment of the third arbitrator." (Emphasis added.) While this time provision is mandatory, it is not jurisdictional and, therefore, may be waived. Borough of New Cumberland v. Police Employees of the Borough of New Cumberland, Pa. , 467 A.2d 1294 (1983); International Association of Firefighters, Local 463 v. City of Johnstown, 468 Pa. 96, 360 A.2d 197 (1976). In holding that the time limitation was jurisdictional, the
[ 83 Pa. Commw. Page 267]
common pleas court, quite understandably, relied upon our decision in Borough of New Cumberland v. Police Employers of the Borough of New Cumberland, 63 Pa. Commonwealth Ct. 441, 439 A.2d 849 (1981), where we so ruled prior to the ...