Nix, C.j., and Larsen, Flaherty, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files an Opinion in Support of Affirmance in Part and Reversal in Part in which Flaherty, J., joins. Nix, C.j., concurs in the proposed mandate of the Opinion in Support of Affirmance in Part and Reversal in Part. Larsen, J., files an Opinion in Support of Reversal in which Hutchinson and Papadakos, JJ., join. McDermott, J., did not participate in the consideration or decision of this case.
The Court being evenly divided, the Order of the Commonwealth Court is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE IN PART AND REVERSAL IN PART
Before us is an appeal from an Order of the Commonwealth Court affirming an Order of the Court of Common Pleas of Montgomery County dismissing a Petition for Review of an award of a board of arbitrators appointed
pursuant to the Act of June 24, 1968, P.L. 237, No. 111 as amended, 43 P.S. § 217.1 et seq. (Act 111). Appellant is a duly certified collective bargaining agent for the policemen of the township of Lower Merion. On June 29, 1982, the parties commenced employment contract negotiations. Because an impasse developed, the Appellant requested the appointment of a board of arbitration as authorized by Section 4(a) of Act 111. Section 4(a) provides as follows:
If in any case of a dispute between a public employer and its policemen . . . the collective bargaining process reaches an impasse and stalemate, . . . with the result that said employers and employes are unable to effect a settlement, than either party to the dispute, after written notice to the other party containing specifications of the issue or issues in dispute, may request the appointment of a board of arbitration.
43 P.S. § 217.4(a). In accordance with Section 4(a), the parties submitted to arbitration, resulting in the board issuing a unanimous award on November 23, 1982. In addition to awarding a three-year term, the award changed the retirement age to 55 and eliminated any post-retirement medical benefits.
Dissatisfied with this award, the Appellants filed a Petition for Review to the Court of Common Pleas of Montgomery County, raising numerous legal and factual issues. Prior to the Court's review, the parties agreed by stipulation to three issues:
(a) (Whether) the panel of arbitrators exceeded their authority and/or powers by deciding issues not in dispute as required by the Act of June 24, 1968, P.L. 237, No. 111(4) (43 Pa.C.S.A. § 217.4).
(b) (Whether) the panel of arbitrators exceeded their authority and/or powers by creating a three-year award, in that the Fraternal Order of Police specifically asked for a one-year contract, and the Township of Lower Merion never proposed anything contrary.
(c) (Whether) the panel of arbitrators lacked jurisdiction to create a three-year award in that multi-year contract is
contrary to the Act of June 24, 1968, P.L. 237, No. 111 (43 Pa.C.S.A. § 217). (R. 31a)
In denying the Appellant's petition, the lower court held that the arbitrators did not exceed their authority or determine an issue not in dispute when they eliminated post-retirement medical benefits. In so doing, the court held that a retired police officer is not a township employee and therefore, the township could not provide lifetime post-retirement medical insurance coverage. Likewise, the lower court held that the Appellant made the length of the contract an "issue in dispute" by attempting to limit the term of the award to one year. Finally, the lower court disagreed with the Appellant's argument that Section 3 of Act 111 prohibited the granting of a multi-year award. Commonwealth Court affirmed on appeal, holding that the issues of the post-retirement medical benefits and the length of the contract term were properly before the Board, and determined within the scope of the Board's authority. We granted the Appellant's petition for allowance of appeal and now would affirm in part and would reverse in part.
Section 7 of Act 111 specifically prohibits any appeal from an arbitration award. However, we have consistently held that this prohibition does not prevent a court from reviewing an arbitration award when an appeal questions (1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) question of excess in exercise of powers; and (4) constitutional questions. Guthrie v. Borough of Wilkinsburg, 508 Pa. 590, 499 A.2d 570 (1985), citing City of Washington v. Police Department of Washington (Washington Arbitration Case), 436 Pa. 168, 259 A.2d 437 (1969). There is no contention here that the subject award resulted from any irregularity in the proceedings or an abuse of constitutional protections. Therefore, we limit our review to a determination of whether the arbitrators exceeded their jurisdiction or power.
Appellant argues that the arbitrators exceeded their authority by eliminating post-retirement medical benefits for police officers. In support of its position, the Appellant argues that neither party proposed eliminating the health
benefits, but rather restricting the length of time during which the retirees were entitled to receive such benefits. Thus, the Appellant contends that the arbitrators exceeded their power by determining an issue not specifically before them.
In Washington Arbitration Case, supra we addressed a similar issue. As the result of an arbitration under Act 111, the City was required to pay for hospitalization for the families of their police officers. The City challenged this award as an excess of the arbitrators' powers. In making our determination we relied upon Article 3, Section 31 of the Pennsylvania ...