ARGUED: November 1, 2016
from the Order of the Commonwealth Court entered January 7,
2016 at No. 1228 CD 2014, reversing the Order of the Court of
Common Pleas of Allegheny County entered July 9, 2014 at No.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
discretionary appeal, we consider whether a home rule
municipality may amend its home rule charter to eliminate
mandatory subjects of bargaining as defined by the Police and
Firemen Collective Bargaining Act, commonly known as Act 111,
43 P.S. §§ 217.1 - 217.10; the Pennsylvania Labor
Relations Act ("PLRA"), 43 P.S. §§ 211.1
-215.5; and applicable case law.
the Fraternal Order of Police, Fort Pitt Lodge No. 1
("FOP") is the exclusive collective bargaining
representative for the police officers of Appellee, the City
of Pittsburgh ("City"), pursuant to Act 111 and the
and the City are parties to a collective bargaining agreement
that ran from January 1, 2010 through December 31, 2014.
Section 18(S) of the agreement provides, in relevant part:
If, during the term of this agreement . . . the Pennsylvania
State Legislature enacts legislation relating to . . .
residency requirements for police officers in cities of the
second class, the parties may reopen the contract to
negotiate and/or arbitrate under these limited conditions.
The Panel shall retain jurisdiction to address such issues if
agreement cannot be reached by the parties.
Agreement, 1/01/10-12/31/14, at 92.
City is subject to the Policemen's Civil Service Act (for
Cities of the Second Class), 53 P.S. §§ 23531-
23540, which prior to October 24, 2012, provided:
A person applying for appointment shall not be required to be
a resident of the city at the time of application for
original appointment. The person shall, however, be required
to become a bona fide resident of the city at the time of the
employment, and city residency must be maintained for the
entire period of employment.
53 P.S. § 23532 (repealed).
the General Assembly repealed the residency mandate on
October 24, 2012, through the enactment of Act 195 of 2012,
which now provides, "[a] city of the second class may
require a police officer to become a bona fide resident as a
condition of employment." 53 P.S. § 23532.
light of Act 195, the parties met to bargain the residency
issue. Because they were unable to reach an agreement, the
arbitration panel was reconvened, and held hearings on June
28, 2013 and September 23, 2013. At the commencement of the
first hearing, the City objected to the arbitrability of the
residency issue. N.T. Hrg, 6/28/13, at 5. On July 29, 2013,
the City submitted a brief to the panel on this topic.
Meanwhile, on July 23, 2013, the Pittsburgh City Council
passed a resolution to place a referendum on the upcoming
general election ballot asking the voters whether the
City's home rule charter should be amended to require all
City employees and officials, including police and fire
personnel, to maintain their domicile within the City. Voters
approved the home rule charter amendment on November 5, 2013.
March 14, 2014, the arbitration panel issued a Supplemental
Interest Arbitration Award, which provided that the City-only
residency requirement would immediately discontinue and be
replaced with the following provision: "Officers shall
be required to reside within a twenty-five (25) air-mile
radius from the City-County Building." Supplemental
Interest Arbitration Award, 3/14/14, at 4. One member of the
three-member panel dissented.
City filed a timely petition for review in the Allegheny
County Court of Common Pleas, seeking to vacate the
supplemental award because the panel acted without
jurisdiction and exceeded its authority under Act 111.
for the trial court, Judge Robert J. Colville noted that an
arbitration panel may direct a municipality to do anything
that it is lawfully empowered to do. Relying on Township
of Moon v. Police Officers of the Township of Moon, 498
A.2d 1305 (Pa. 1985), Judge Colville determined that
residency is a term and condition of employment for police
officers and is thus a matter within the jurisdiction and
authority of an Act 111 arbitration panel. Because the Act
195 amendments placed residency within the City's
control, an interest arbitration award could modify the
trial court also rejected the City's argument that the
interest arbitration award was unconstitutional because it
required the City to act in a manner contrary to the amended
home rule charter. Judge Colville noted that a home rule
charter "cannot supersede Act 111, a statewide
statute." Trial Ct. Op., 7/9/14, at 10. In support of
this conclusion, the court relied on Section 2962(c) of the
Home Rule Charter Law, which provides that a municipality is
precluded from exercising "powers contrary to, or in
limitation or enlargement of, powers granted by statutes
which are applicable in every part of this
Commonwealth." 53 Pa.C.S. § 2962(c)(2). The trial
court noted that "Act 111 is a statute applicable to all
municipalities throughout the Commonwealth." Trial Ct.
Op., at 11. The trial court further noted that Section
2962(c)(5) of the Home Rule Charter Law prohibits a home rule
municipality from enacting "any provision inconsistent
with any statute heretofore enacted prior to April 13, 1972
affecting the rights, benefits or working conditions of any
employee of a political subdivision of this
Commonwealth." 53 Pa.C.S. § 2962(c)(5). Because the
General Assembly enacted Act 111 in 1968, and it affects the
rights, benefits and working conditions of municipal
employees by allowing them to bargain or arbitrate to set the
terms of their employment, the trial court concluded that the
home rule charter cannot restrict the scope of collective
bargaining issues under Act 111, including residency.
Accordingly, the trial court affirmed the supplemental
interest arbitration award.
City appealed, and a divided en banc Commonwealth Court
reversed. Writing for the majority, Judge Bonnie Brigance
Leadbetter, noted that the General Assembly, through the Home
Rule Charter Law, gave home rule municipalities broad powers
"to undertake any action they desired, and that such
action should be upheld unless it was specifically denied by
the Constitution, a statute or the home rule charter
itself." City of Pittsburgh v. Fraternal Order of
Police, Fort Pitt Lodge No. 1, 129 A.3d 1285, 1288 (Pa.
Cmwlth. 2016). After observing that a home rule charter is
the equivalent of a constitution, the court relied on
Spencer v. City of Reading Charter Bd., 97 A.3d 834,
840 (Pa. Cmwlth. 2014) for the proposition that
"provisions of a home rule charter have the force and
status of an enactment of the legislature." City of
Pittsburgh, 129 A.3d at 1289. The court concluded that
no statewide law prohibits the home rule charter from
requiring the City's employees to live within its
borders. It explained that although Act 111 allows an
arbitrator to impose any non-managerial conditions and
conditions of employment, unless removed from discussion or
award by other laws, "an arbitration panel can only
award that which the public employer, in this case, the City,
its Mayor and its Council, have the power to agree to and
nothing more." Id. at 1290. Because the
residency requirement is included in the home rule charter,
which "has the force and status of an enactment of the
General Assembly, " id., City officials lost
the ability to bargain away residency requirements.
Accordingly, the arbitrators' award would require the
City to commit an illegal act.
reaching this conclusion, the court partially overruled its
opinion in City of Wilkes-Barre v. City of Wilke-Barre
Police Benevolent Association, 814 A.2d 285 (Pa. Cmwlth.
2002), in which it held that "[w]hen Act 111 applies,
neither a home rule charter, nor an enactment by a home rule
municipality may change the ability to bargain about
residency." Id. at 290. The majority faulted
the City of Wilkes-Barre court for failing to
recognize that a home rule charter has the force and effect
of a state statute, thus superseding general Act 111
requirements for bargaining over terms and conditions of
Robert Simpson filed a dissenting opinion, joined by Judge
Kevin Brobson and Judge Anne E. Covey, noting that where a
conflict exists between a statute of general application such
as Act 111 and a home rule charter provision, the state
statute prevails. Judge Simpson observed that he would have
reached this result even without City of
Wilkes-Barre because the limitations placed on home rule
municipalities by the Home Rule Charter Law, and the
application of the principles of express preemption, indicate
the General Assembly intended state statutes of general
application to supersede inconsistent home rule municipality
enactments. The dissenting opinion further stated that the
majority erred by citing Spencer for the proposition
that a home rule charter provision is the equivalent of a
state statute. Rather, the dissenting opinion noted that
Spencer held "a home rule charter provision has
the force and effect of an enactment of the
municipality's legislative body." City of
Pittsburgh, 129 A.3d at 1293 (Simpson, J. dissenting).
granted allocatur to consider whether a home rule
municipality may amend its home rule charter to eliminate
mandatory subjects of bargaining as defined by Act 111, the
PLRA and other applicable law, and whether a
municipality's home rule charter provision eliminating a
mandatory subject of bargaining for its police officers is
preempted by Act 111. City of Pittsburgh v. Fraternal
Order of Police, Fort Pitt Lodge No. 1, 139 A.3d 1257
(Pa. 2016) (order).
review an Act 111 interest arbitration award under a narrow
scope of review, limited to (1) the jurisdiction of the
arbitrators; (2) the regularity of the proceedings; (3)
whether the arbitrators exceeded their power; and (4) whether
a deprivation of constitutional rights occurred. Michael ...