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decided: March 9, 1987.


Original Jurisdiction in the case of State Conference of State Police Lodges of the Fraternal Order of Police, by its Trustee Ad Litem, Paul T. McCommons v. Commonwealth of Pennsylvania.


Gary M. Lightman, with him, Anthony C. Busillo, II, Mancke, Lightman & Wagner, for petitioner.

Susan J. Forney, Senior Deputy Attorney General, with her, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig. Concurring Opinion by Judge Doyle.

Author: Craig

[ 104 Pa. Commw. Page 449]

The State Conference of State Police Lodges of the Fraternal Order of Police (FOP) filed a petition for review in the nature of a declaratory judgment, asking that this court exercise its original jurisdiction to declare section 5955 of the State Employees' Retirement Code*fn1 unconstitutional. The Commonwealth filed preliminary objections in the nature of a demurrer to the FOP's petition for review.

According to the averments of the petition, the FOP is the certified bargaining representative for the state police. The FOP asked the Commonwealth to bargain over state police pension benefits, pursuant to the Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1-217.27 (Act 111). The Commonwealth refused even to discuss pensions in bargaining with the FOP on the ground that section 5955 of the Retirement Code allegedly prohibits bargaining over such matters. Section 5955 of the Retirement Code provides:

[ 104 Pa. Commw. Page 450]

Pension rights of state employees shall be determined solely by this part or any amendment thereto, and no collective bargaining agreement between the Commonwealth and its employees shall be construed to change any of the provisions herein. The provisions of this part insofar as they are the same as those of existing law are intended as a continuation of such laws and not as new enactments. The provisions of this part shall not affect any act done, liability incurred, right accrued or vested, or any suit or prosecution pending or to be instituted to enforce any right or penalty or to punish any offense under the authority of any repealed laws.

71 Pa. C.S. § 5955.

The FOP's contentions concerning section 5955 are that, reading the section to prohibit dealing with pensions in the collective bargaining process and also to prevent binding arbitration from mandating pension legislation, then (1) the section is invalid as a special law regulating labor in violation of art. III, § 32(7) of the Pennsylvania Constitution*fn2 and (2) the section conflicts with art. III, § 31 of the Pennsylvania Constitution*fn3

[ 104 Pa. Commw. Page 451]

    which provides that statutory labor arbitration for police, as has been adopted by the legislature in Act 111,*fn4 shall constitute a mandate for legislative action necessary to implement an award.

The state counters (1) that considerations of predictability, and concerns for uniform treatment of all state

[ 104 Pa. Commw. Page 452]

    employees, establish a rational basis for treating the state police as a class different from municipal police, and (2) that section 5955 of the Retirement Code expressly effected a partial repeal of the earlier Act 111, which had conferred collective bargaining and binding arbitration upon policemen and firemen, and accordingly is not invalid as negating the effect which the state constitution has conferred upon such arbitration when provided by statute.

What Does Retirement Code § 5955 Say?

Before considering the validity of section 5955, we must read it to see what meaning its words possess.

In accordance with the axiomatic statutory construction principle which gives effect to the plain meaning of unambiguous statutory language, codified in 1 Pa. C.S. § 1921(b), a straightforward reading of section 5955 reveals that it simply does not contain any words which prohibit discussion and bargaining over pensions between the state and its employees in the course of the collective bargaining process. It merely states that pension rights of state employees "shall be determined solely" by the Retirement Code and its amendments, and that "no collective bargaining agreement. . . shall be construed to change any of the provisions" of the Retirement Code. (Emphasis added.) Those unambiguous words provide only that pension rights and the relationships of state employees are to be embodied in the statute as the source and enforcement basis for those rights, rather than in any collective bargaining agreement; in other words, the legal vehicle documenting pension entitlement is to be the law itself, not a contract.

Limiting the legal vehicle within which pension rights are to be embodied obviously does not prohibit discussion and bargaining between the parties concerning

[ 104 Pa. Commw. Page 453]

    the subject of pensions because, subsequent to bargaining, a mutually accepted result can then be embodied in statute by amendment, subject to enactment of the same by the legislature. There is nothing novel in that approach. For many years before the enactment of specific statutory authorization for collective bargaining by public employees, as in Act 111, state and municipal employees traditionally dealt with their governmental employers on many subjects affecting their working conditions -- matters subjects such as tenure and pensions -- with a view toward the possible amendment of the controlling statutes and ordinances to reflect the newly acceptable status between the parties.

The Pennsylvania Constitution itself provides irrefutable authority recognizing the concept of statutory embodiment of public employee collective bargaining results, in place of contractual embodiment. The very state constitutional provision which authorizes binding arbitration for police and firefighters, art. III, § 31, expressly recognizes that there can be binding arbitration findings "with respect to matters which require legislative action," and "if the Commonwealth is the employer," that section requires "the lawmaking body of . . . the Commonwealth," concerning those matters, "to take the action necessary to carry out such findings."

That constitutional recognition of primacy of statutory law as the embodiment of certain public employee rights and benefits is matched by the completely consistent approach of Retirement Code § 5955, at issue here, when it states that pension rights shall be determined solely by the Retirement Code, and that no collective bargaining agreement shall be construed to change any of the Retirement Code provisions. The latter point constitutes the very premise of the constitutional provision -- that no agreement formulated by the parties can itself effectuate any change in statutory law. For that

[ 104 Pa. Commw. Page 454]

    purpose, the constitution supplies an arbitration mechanism which can bind the legislature to act if consensus between state and employees does not produce an amendment of the law.

Now, pursuant to that constitutional authorization, we have Act 111 providing collective bargaining and binding arbitration for police and firemen in lieu of a right to strike. And a considerable range of statutes has continued to embody the pension relationships of municipal police; for example, with respect to police in third class cities, the Third Class City Code of June 23, 1931, P.L. 932, as amended, §§ 4301-4308, 53 P.S. §§ 39301-39308, covers pension elements. Similarly, municipal codes and other laws contain many provisions concerning state and local police tenure in their jobs and other working conditions.*fn5 The fact that statutes deal with those conditions -- as is common if not inevitable with respect to public employment -- in no way bars discussion of such subjects as employees and employer communicate ...

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