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Upper Moreland Township v. Upper Moreland Township Police Benevolent Association

May 31, 2012

UPPER MORELAND TOWNSHIP, APPELLANT
v.
UPPER MORELAND TOWNSHIP POLICE BENEVOLENT ASSOCIATION



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Argued: March 12, 2012

BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Upper Moreland Township (Township) appeals from the September 15, 2010, order of the Court of Common Pleas of Montgomery County (trial court), denying the Township‟s petition to vacate the June 30, 2009, Act 111*fn1 grievance arbitration award. We affirm.

This case arises from a grievance filed by the Upper Moreland Township Police Benevolent Association (Association) on behalf of Police Officer Richard Gump challenging the refusal of the Township to grant him a full superannuation retirement pension. The Township and the Association have been parties to a series of collective bargaining agreements (CBA), which govern the employment terms and retirement conditions for the Township‟s police officers. The CBA relevant to this matter went into effect on January 1, 2007, and expired December 31, 2010. On July 2, 2007, the parties executed an Addendum to the CBA. The Addendum provides, in relevant part:

Each Police Employee will become eligible for a NORMAL RETIREMENT PENSION BENEFIT upon completing twenty-five (25) years of credited service, that is the "NORMAL YEARS OF SERVICE". The NORMAL RETIREMENT PENSION BENEFIT will not commence until the Police Employee separates from service and attains the age of fifty (50) years, that is the, "NORMAL RETIREMENT AGE".

(Art. 4.A of the Addendum, R.R. at 69a-70a.) The Addendum further provides that an officer shall earn one year of credited service for every calendar year in which he or she works 1,000 or more hours. (Art. 5.A of the Addendum, R.R. at 70a.)

Officer Gump notified the Township of his intention to retire and enter the Township‟s Deferred Retirement Option Plan (DROP) program, effective August 1, 2008. At that point, Gump had attained age 50 and, having already served 1,000 compensable hours of service for the year, believed he had provided twenty-five years of "credited service," thereby rendering him eligible for the normal retirement pension benefit. The Township refused Officer Gump‟s pension request on the basis that he had "yet to provide the Township with 25 calendar years of service." (Township Ltr., 6/30/08, R.R. at 215a.) The Township explained that the 1,000 service-hours requirement "does not truncate the "calendar year‟ to 1,000 hours or approximately 6 months." (Id.)

The Association filed a grievance on behalf of Officer Gump challenging the Township‟s refusal. The matter proceeded to arbitration. The arbitrator sustained the grievance upon finding that the pension benefit was legal under the act commonly referred to as "Act 600"*fn2 and required by the parties‟ CBA. The arbitrator‟s award required the Township to comply with the credited-service calculation method, which was voluntarily entered into by the parties, and directed the Township to enter Officer Gump in the DROP program, effective August 1, 2008. From this decision, the Township filed a petition to vacate the arbitration award with the trial court. By order dated September 15, 2010, the trial court denied the petition. The Township now appeals from that decision.

The Township argues that the trial court erred by failing to vacate the arbitration award permitting a police officer to receive a full superannuation retirement benefit after only twenty-four-and-one-half calendar years of service, where the CBA prohibits pension benefits that are not permitted under Act 600, and where the severability clause of the CBA specifies that illegal benefits are unenforceable and directs the parties to bargain over replacement benefits.*fn3 We disagree.

Act 600 establishes the minimum service and age requirements an employee must satisfy in order to retire. Section 3 of Act 600, 53 P.S. §769 (emphasis added), provides:

Each ordinance or resolution establishing a police pension fund shall prescribe a minimum period of total service in the aggregate of twenty-five years in the same borough, town, township or regional police department and shall fix the age of the members of the force at fifty-five years, or, if an actuarial study of the cost shows that such reduction in age is feasible, may fix the age of the members of the force at fifty years, after which they may retire from active duty, and such members as are retired shall be subject to service, from time to time, as a police reserve, in cases of riot, tumult or preservation of the public peace until unfitted for such service, when they may be finally discharged by reason of age or disability.

Act 600 does not define "total service in the aggregate of twenty-five years."

Citing Chirico v. Board of Supervisors for Newtown Township, 518 Pa. 572, 544 A.2d 1313 (1988),and Borough of Ellwood City v. Ellwood City Police Department Wage and Policy Unit, 805 A.2d 649 (Pa. Cmwlth. 2002), the Township contends that a police officer must actually work (or be absent due to a work-related injury) in order to earn "service" for pension purposes. The issue in Chirico and Ellwood was whether the arbitration award violated Act 600 because the act does not provide for the payment of police pension benefits to officers who are disabled by a non-work-related injury. In Chirico, an arbitration panel determined that any officer permanently and totally disabled as a result of a non-service-related injury was entitled to receive sixty-five percent of his salary as a pension until his death. Chirico, 518 Pa. at 577, 544 ...

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