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decided: July 23, 1986.


Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Bensalem Township School District v. Bensalem Township Education Association, No. 83-6754-06-6.


James M. McMaster, Smith and McMaster, P.C., for appellant.

A. Martin Herring, Herring and Donahue, for appellee.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Palladino dissents.

Author: Barbieri

[ 99 Pa. Commw. Page 142]

Bensalem Township School District (District) appeals here the order of the Bucks County Common Pleas Court dismissing the District's request that the common pleas court vacate the award of the arbitrator who determined that the District violated the applicable collective bargaining agreement when it eliminated certain co-curricular teaching positions for the 1982-83 school year because the arbitrator had allegedly exceeded his authority in deciding the grievance.

The District and the Bensalem Township Education Association (Association) were parties to a collective bargaining agreement that by its terms expired on June 30, 1981. Following a brief strike, a tentative successor agreement was reached on September 17, 1981 for the period from June 1, 1981 through June 30, 1984, to be submitted to the respective principals for ratification. On the following day, the parties agreed to be bound by the terms of the tentative agreement in the interim. The parties were unable to agree on all the terms of the tentative agreement, however, and the District notified the Association by letter dated February 25, 1982 that the tentative agreement was revoked and rescinded and that the District was willing to continue negotiations. In response, on March 1, 1982, the Association's counsel voted to accept the tentative agreement as previously proffered by the District and delivered the signed agreement to the School Board. The District now refused to sign the tentative agreement and again requested collective bargaining negotiations. Each of the parties filed unfair labor practice charges against the other. On November 17, 1982, the Pennsylvania Labor Relations Board entered an order stating that the District had not committed an unfair labor practice by its refusal to sign the revoked tentative agreement and that no collective bargaining agreement was in effect postdating

[ 99 Pa. Commw. Page 143]

    the expiration of the agreement on June 30, 1981.

Meanwhile, in September 1982, the Association had filed a grievance on behalf of Association members affected by the District's elimination of certain co-curricular teaching positions. The grievance was not resolved informally and, therefore, proceeded to arbitration pursuant to Section 903 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.903. The arbitrator bifurcated the proceedings. The initial hearing was held to decide the question whether the grievance was even arbitrable; i.e., whether the arbitrator had authority to proceed and decide the merits of the grievance before him. The arbitrator held that the provisions of the expired collective bargaining agreement, including the grievance procedure, governed the instant grievance and that, therefore, the arbitrator had jurisdiction to proceed and decide the merits of the grievance presented. A second hearing was held to decide the merits of the grievance presented which the District did not attend for reasons to be discussed below. The arbitrator then issued an award directing the District to make whole all grievants whose co-curricular positions were eliminated in violation of the expired collective bargaining agreement.

The District filed a petition for review of the arbitrator's award with the Bucks County Court of Common Pleas. The District complained in its petition of the arbitrator's usurpation of authority in deciding the merits of the grievances. The District averred it had dismissed the arbitrator from further proceedings after the initial decision on arbitrability in accordance with the procedure allegedly agreed upon by the parties prior to the start of the first hearing. A hearing was held before Judge Ludwig of the common pleas court pursuant to a Bucks County rule of procedure permitting submission

[ 99 Pa. Commw. Page 144]

    for consideration by a single judge of certain motions, rules, preliminary objections, and other miscellaneous applications which do not require action by the court en banc. At that hearing, the parties discussed the necessity for an evidentiary hearing on the question whether the procedure agreed upon by the parties prior to arbitration permitted dismissal by one of the parties of the arbitrator after the arbitrability determination, as asserted by the District, or only prior to the arbitrability determination, as argued by the Association. The Association argued that an evidentiary hearing was unnecessary, that the court's function was to look at the arbitrator's decision and determine whether his award was drawn from the essence of the bargaining agreement. See Scranton Federation of Teachers v. Scranton School District, 498 Pa. 58, 444 A.2d 1144 (1982). The District sought to enter into evidence the deposition testimony of its ...

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