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City of Beaver Falls v. Beaver Falls Police Association

Commonwealth Court of Pennsylvania

September 18, 2013

City of Beaver Falls, Appellant
v.
Beaver Falls Police Association

Argued: June 17, 2013

BEFORE HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.

OPINION

P. KEVIN BROBSON, JUDGE

Appellant City of Beaver Falls (City) appeals from an order of the Court of Common Pleas of Beaver County (trial court), which denied the City's request to vacate a supplemental arbitration award in favor of Appellee Beaver Falls Police Association (Union). The supplemental award directed the City to reinstate Patsy Perretta (Grievant) as a police officer and to render him financially whole for the period of time that he had been out of the workforce following the end of his one-year suspension from employment. For the reasons set forth below, we affirm.

On October 29, 2008, while he was employed as a patrol officer with the Beaver Falls Police Department, Grievant temporarily disrobed himself at a local bar. (Reproduced Record (R.R.) at 151a.) As a result, the City suspended Grievant and, ultimately, discharged him from employment for conduct unbecoming of a police officer. (R.R. at 153a, 258a.) Grievant, through the Union, challenged his termination using the grievance procedures contained in the Collective Bargaining Agreement (CBA) that was in effect between the City and the Union. (Id. at 153a.) In accordance with the terms of the CBA, the matter then proceeded to binding arbitration under Act 111.[1] (Id. at 258a.) Following a hearing, on August 13, 2009, Arbitrator Matthew M. Franckiewicz (Arbitrator) issued a grievance award overturning Grievant's termination from employment. (Id. at 158a.) Specifically, the Arbitrator converted the termination into a one-year disciplinary suspension without pay. (Id.) The Arbitrator also ordered the City to reinstate Grievant promptly and without loss of seniority. (Id.) Finally, the Arbitrator retained jurisdiction "for the limited purpose of resolving any disputes that may arise in connection with" the relief awarded. (Id.) The City petitioned the trial court to vacate the Arbitrator's award. (Id. at 159a.) On March 12, 2010, the trial court denied the City's petition to vacate the award. (Id. at 166a.) The City appealed to this Court.

By letter dated August 23, 2010, the City informed Grievant of its decision to "recall [him] to his employment pursuant to the [Arbitrator's award]." (Id. at 47a.) The City also, inter alia, informed Grievant that (1) he would need to be recertified by the Municipal Police Officers Education and Training Commission (Commission), (2) he would need to undergo medical and psychological evaluations, and (3) it would provide him "with a calculation of back pay."[2] (Id. at 47a-48a.) Finally, the City directed Grievant to contact promptly the Chief of Police, Charles Jones (Chief Jones), to arrange his recertification through the Commission to serve as a police officer and to schedule the medical and psychological examinations. (Id. at 48a.)

Grievant complied. (Id. at 264a.) He contacted Chief Jones, who set up a physical and psychological examination for Grievant. (Id. at 87a, 264a.) Grievant's physical examination did not raise any concerns. (Id. at 264a.) Reverend Paul L. Holland, Ph.D. (Dr. Holland), administered the psychological examination on the City's behalf. (Id. at 50a.) After administering a battery of tests, Dr. Holland opined that Grievant was not "psychologically fit for or capable of exercising appropriate judgment and restraint to be certified as a police officer in Pennsylvania." (Id. at 53a.) He further observed:

I feel that presently he is at risk. My feeling is that as his current stress subsides, he may rise above his current emotional instability and acceptably perform as a police officer. Should he be put on probation for a time to allow emotional – stabilization – at no expense to the city – I would be willing to meet with him and report his progress to Chief Jones. I would like to see him become a productive police officer.

(Id.) By letters dated September 21, 2010, Dr. Holland informed both Chief Jones and Grievant of the results of the psychological examination. (Id. at 52a.) On September 28, 2010, the City filed with this Court a praecipe to discontinue its appeal relating to the 2009 arbitration award. (Id. at 169a.) On October 1, 2010, we marked the appeal as discontinued. (Id. at 173a.)

Following his receipt of Dr. Holland's letter, Chief Jones contacted the Commission. (Id. at 55a.) Specifically, he informed the Commission of Grievant's one-year suspension and psychological problems. (Id. at 56a.) By letter dated January 31, 2011, the Commission, through its Executive Director, responded to Chief Jones. (Id. at 57a.) In addressing Chief Jones' concerns about Grievant's psychological problems, the Commission observed that "[i]t appears from [the] information [provided] that [Grievant] is not presently eligible for certification. However, since [Grievant] is neither currently certified nor has a pending application for certification, the Commission will not be taking any formal action at this time." (Id. (emphasis added).)

By letter dated March 29, 2011, the City notified Grievant that it would be holding a hearing before the City Council (Council) on April 12, 2011, to determine whether Grievant had abandoned his employment with the City. (Id. at 58a.) Specifically, the City alleged that it had not heard from Grievant since at least September 30, 2010. (Id.) Also, another purpose of the Council hearing was to determine whether, given his lack of certification and unsatisfactory psychological examination results, Grievant would be eligible to return to employment as a police officer. (Id.)

In response, by letter dated April 1, 2011, Grievant, through his attorney, disputed the City's factual allegations. (Id. at 61a.) Specifically, he noted that the City did not comply with the Arbitrator's 2009 award because it failed to reinstate Grievant. (Id. at 62a.) As a result of the City's failure to reinstate him, Grievant argued that, instead of the Council, the Arbitrator continued to have jurisdiction over the matter. (Id.) Finally, because Grievant challenged the Council's jurisdiction, he informed the City that he would not participate at the scheduled hearing. (Id.) On the same day, Grievant's attorney wrote to the Arbitrator to request a compliance hearing to determine whether the City had fulfilled its obligations under the 2009 award. (Id. at 65a.) Ultimately, the Arbitrator scheduled a hearing for September 6, 2011. (Id. at 73a, 188a.)

In the meantime, convinced that it had jurisdiction over the issue of job abandonment, the Council conducted its hearing as scheduled without Grievant or his attorney present. (Id. at 8a.) Following the hearing, the Council terminated Grievant on the basis that he abandoned his employment with the City.[3] (Id. at 267a.)

On April 26, 2011, Grievant saw James T. Flannick, Psy. D. (Dr. Flannick), with whom he met on six subsequent occasions until June 10, 2011. (Id. at 267a-68a.) Based on his psychological examination of Grievant, Dr. Flannick concluded that ...


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