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CITY PHILADELPHIA v. FRATERNAL ORDER POLICE (11/02/89)

decided: November 2, 1989.

CITY OF PHILADELPHIA, APPELLANT,
v.
FRATERNAL ORDER OF POLICE, LODGE NO. 5, APPELLEE



Appeal from Common Pleas Court, Philadelphia County; Honorable Samuel M. Lehrer, Judge.

COUNSEL

Maria L. Petrillo, Chief Asst. City Sol., with her, Ralph J. Teti, Chief Deputy City Sol., and Richard C. McNeill, Jr., Philadelphia, for appellant.

Anthony J. Molloy, Jr., Mozenter, Molloy & Durst, Philadelphia, for appellee.

Doyle and Palladino, JJ., and Narick, Senior Judge.

Author: Doyle

[ 129 Pa. Commw. Page 393]

Before us for review is an order of the Court of Common Pleas of Philadelphia County which upheld an arbitrator's award directing that two members of the Philadelphia Police Department, John Wilson and David Grove, (Grievants), who had been dismissed from their positions, be subject only to suspensions of thirty days and ten days respectively.

The relevant facts are as follows. On May 28, 1987, then Police Commissioner Kevin M. Tucker dismissed Grievants from their positions on a variety of charges including the offense of conduct unbecoming an officer. The various charges related to Grievants' refusals to turn over arrest books to the Philadelphia Police Department (Department) and their failure to cooperate with the Department in an investigation being conducted by the Department's Ethics Accountability Division.

Pursuant to the collective bargaining agreement between the City of Philadelphia (City) and the Fraternal Order of Police Lodge No. 5 (FOP), Grievants filed grievances over the dismissals. The grievances were submitted to arbitration and the arbitrator sustained the grievances only in

[ 129 Pa. Commw. Page 394]

    part, finding that Grievants had violated only one section of the Disciplinary Code (Code) (failure to cooperate in a Departmental investigation) and specifically rejecting charges that Grievants had violated other sections of the Code. Accordingly, he reduced Grievant Wilson's dismissal to a thirty-day suspension and Grievant Grove's dismissal to a ten-day suspension.

Thereafter, the City filed a petition to vacate the arbitrator's award in the common pleas court asserting that the arbitrator had exceeded his jurisdiction when he determined that Grievants were guilty of some of the charges but, nonetheless, ordered reinstatement. The trial court denied the City's petition to vacate and this appeal followed.

Initially, we must determine the appropriate scope of review. The law regarding judicial review of an arbitration award has not been without its confusion. Essentially, there are three substantive groups which must be distinguished. Under the Public Employe Relations Act*fn1 (Act 195) there are public employees who are given a right to strike. There are also, however, under Act 195 a small segment of employees who are not given that right. We shall refer for purposes of this discussion to those individuals as Act 195 Special Employees. The Act 195 Special Employees include prison guards and court-appointed employees. See Section 805 of Act 195, 43 P.S. § 1101.805. Finally, there are those individuals (police and fire personnel) whose arbitration rights arise from the Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1 through 217.10 (Act 111). Further, for each of the three categories of public employees there are two types of arbitration -- interest and grievance. And, the appropriate scope of review is dependent upon which group of employees is under discussion and what type of arbitration is involved.

INTEREST ARBITRATION

Our Supreme Court has indicated that where an interest arbitration award arises under Act 111 a "narrow

[ 129 Pa. Commw. Page 395]

    certiorari" review is appropriate. Appeal of Upper Providence Police Delaware County Lodge # 27 Fraternal Order of Police, 514 Pa. 501, 526 A.2d 315 (1987). Under this standard the reviewing court must limit its inquiry to questions concerning the jurisdiction of the arbitrators, the regularity of the proceedings, an excess in the exercise of the arbitrators' powers, and constitutional questions. Id. This narrow scope of review is based upon the recognition that Act 111 employees have no right to strike, the consequent public policy concern that their disputes be quickly settled and appeals discouraged, and more importantly upon Section 7(a) of Act 111, 43 P.S. § 217.7(a), which pertinently directs: "The determination of the majority of the board of arbitration . . . shall be final on the issue or issues in dispute and shall be binding upon the public employer and the policemen or firemen involved . . . . No appeal therefrom shall be allowed to any court." 43 P.S. § 217.7(a). See also Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969). Interpreting this statutory restriction on judicial review of an arbitration panel and pointing out that an arbitration panel is neither a court nor an administrative agency, our Supreme Court, citing Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 5-6, 173 A.2d 97, 99 (1961), stated:

If an appeal is prohibited by an Act, or the decision of the Agency is stated to be final or conclusive, the law is well settled that an appeal will lie to the Courts in the nature of a narrow certiorari and this Court will review only (1) the question of jurisdiction; (2) the regularity of the proceedings before the agency; (3) ...


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