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Home My WebLink About98-01994 ~ ~~ ' ~ ~ ~~ .... '.. '" ~ .'2 Ci l: ~s: ~c3 '1 ~ ~ s- ...'"S ~ I', " ( \, ~ ! \ ..... , ~ .. ~ ~J ~, ~, .~, 'If ~ --, PllGE te. 1 - 10 11 13-17 18 - 21 12 22 - 24 26 - 30 3'I.-rf ~I aa t2' 12,- ~ 1 t9 Iil D~,tfl ~'61y ."... ')1+ 16.~ I ~J I PYS~)lO Cumberland County prot{honotary' EJ orfico ci vU CilSO Pr,l1t PagfJ 1 1998.,01994 WEST GIIORE REGIONAL POLICE Dr, (VS) Re ferenee No, , : Case Type, , , , ,1 PETITION JUdgmenl;'l"" ,00 JI)dge Ass gned 1 1101"1"1;:1( GEORm: c: PJ Disposed Desc, : -.---------- Case Comments ...---------- EMPLOYlmS OF Wfi:S'I' SIIORIl RE:GION Filed, , , , , , , , : 4/09/1998 Time"l""": 3::30 Execut:on Date O/Ou/OOOO cl1ry Trial, , , , lLsnosed Date, 0/00/0000 II g ar Crt l,: Hig ler Crt 2,: ******************************************************************************** General Index Attorney Info ' PE'I'ITION~~R DUFFI"; JERRY R WEST SIIORE REGIONAl, POLICE DEPARTMENT COMMISSION 301 MARKET STREET LEMOYNE PA 17043 EMPLOYEES OF WEST SHORE REG- IONAL POLICE DEPARTMENT RESPO~lDANT MCANENY JAMES L *************w***********w****************************************************** * Date Entries * ******************************************************************************** 4/09/1998 4/17/1998 4/30/1998 4/30/1998 5/07/1998 5/11/1998 11/19/2002 11/26/2002 11/19/2002 12/23/2002 3/06/20U3 3/27/2003 5/16/2003 5/22/2003 - - M .. - - - - - - - _ - FIRST ENTRY - - _ .. _ - - - .. - - H - - PETITION FOR REVIEW .. .. - - ., - - - - - - .. - - - .. - - - .. - - - - .. - - - - - - - .. .. - - - - .. .. - - - - - - - .. .. - - - - - - - - - - - ., - - - - - - ORDER - DA'l;'ED 4/16/98 - IN RE PETITION FOR REVIEW - ARBITRATION AWARD OF 3/12/98 IS HEREBY VACATED AND SET ASIDE SOl.ELY WITII RESPECT TO PENSION IMPROVEMENT ISSUES - POLICE OFFICERS M~Y RETIRE AT NO MORE THAN 50% OF MONTHLY AVERAGE COMPENSATION PURSUANT TO THE TERMS OF 53 PS 771/- BY EDGAR BY BAYLEY J FOR GEORGE E HOFFER PJ - NOTIC[~ MAIloED 4/17 98 .~ - - ~ - - - - ... ... - .. .. .. .. ... - .. - - .. - - .. .. .. - - - .. .. ... .. .. - - .. .. ... - ... .. - .. - .. - .. - - ... - .. .. .. .. .. - - - ... ... .' - - ... ... RESPONDEN'l" S MOTION TO RECONSIDER AND VACATE ORDfi:R -... - - - - -... -... - - -.. -....... -... - - ,... - - - ...... - - - -............ ..... - - - - ...... -... -... - - - ............. - -...... - ......... -... ANSWER TO PETITION FOR REVIEW .. - ... - - .. ... .. ... .. -. ... ... ... .. ... ... ... ... - ... .. ... ... ... - ... ... ... .. - .. ... - ... ... .. - - ... - - ... ... - - ... ". - - - - - .. - - ... - .' .. ... ... - - - - ... ORDER - DATED 5/7/98 - IN RE RIlSPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER - bRbER OF 4/16/98 IS VACATED AND PARTIES ARE DIRECTED TO PROCEED WITH THIS ACTlbN lN ACCORDANCE WITH PA RCP NO 206 ET SEQ BY GEORGE E HOFFER PJ - NOTICE MAILED 5/7/98 --- -- ---...... - ---.. -............. - - -- - _..... -..--- - --.. -..... -... -- - - --".... --... -... ---- - _...... ANSWER TO RESPONDENT'S MOnON TO RECONSIDER AND VACATE ORDER ------------------------------------------------------------------- PETITION FOR JUDGMENT OF NON PROS - BYDAVID B WASHINGTON ESQ ------------------------------------------------------------------- ORDER - DATED 11/26/02 - IN RE FOR PETITION TO JUDGMENT OF NON PROS - A RULE IS ISSUED UPON PETITION TO SHOW WHY JUDGMENT NON PROS SHOULD NOT BE GRANTED AGAINST PETITIONER - BY GEORGE E HOFFER PJ ..-- --.. --..... ---- - -...... ---........ -- -- ---- -..... - -- -- - _........ - --.. -.. --- --....... --..."- -- ORDER OF COURT DATED 10/22/02 - IN RE 2002 PURGE: LIST FOR 1999 CAS ES - THE CASE IS STRICKEN FROM TilE PURGE L~ST AND SHAl,L RIi:MAIN ACTl VE - J WESLEY OLER JR J - NOTICE MAILED 11/18/02 - - .. .. .. - - - - ~ - ... - - .. ... '. .. - ... - .. .. - ... ... - - .. .. ... - .. ... - - - - .. ... - ... ... .. .. - - .. - ... - ... - - - ... .. - ... .. .. .. .. .. - ... ... ANSWER OF WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS - BY DAVID J LANZA ESQ FOR PET I 'l'I ONER - ... .... .. - .... .. .. .. ,. ...... - .. .. ,... -... .. - .. .... ., .. ...... - - - ... .. .. .... - - - .. .. .. -.... -.. .. .. ., - -".. .. .. -.. .. - .. - .. - ORDER - DATED 3/5/03 - A RULE IS ISSUED UPON PETITION TO SHOW WHY JUDGMENT NON PRbs SIIOULD NOT BE ENTERED - RULE RETURNABLE 20 DAYS FROM SERVICE PETITION SHALl, FII,E A BRIEF ON 30 DAYS AFTER ANBWER- BY THE COURT GEORGE E HOFFER PJ COPIES MAILED - ... - - - ... ... .. .. .. - - - .. .. .' .. - .. - - ... .. .. .. - - .. - .. .. - - ... ... - - - .. .. ... - .. - - .. - - - .. - .. .. - .. - - .. .. - - .. .. .. - .. - ANSWER OF WEST SHORE REGIONAL POLICE DEPT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS - BY DAVID J LANZA ESQ FOR PETITIONER .. .. - ., - - ., - .. - .. .. - - - .. - ., .. - - - .. - - - ., - - .. .. - - .. - - - - - - - - - - .. - .. .. - - - .. .. - .. - - .. .. - - - - - '. - - PRAECIPE FOR LISTING CASE FOR ARGUMENT - PETITION FOR REVIEW FII,ED BY WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION - BY DAVID J LANZA ESQ FOR PETITIONER - - .. - - - .. - - .. - - - .. - '. .. - .. .. ~ .. - - .. .. - - .. - - - .. - - - .. - - .. - - - - - .. - - - .. - - - - ., .. .. - - - .. - - .. .. .. - PRAECIPE FOR LISTING CASE FOR ARGUMENT BY DAVID B WASHINGTON ATTY FOR DEFT - RESPONDENT'S PETITION FOR JUDGMENT OF NON PROS AND PETITIONER'S PETITION FOR REVIEW .\ IN THE COMMONWEALTH COllRT OF PENNS't'!,V ANIA West Shore Rcoional Police '" Departmen( Commission l:I q~ - I qCi~ {!~U'/ ( v, Employees of West Shore Regional . Police Department, Appellant No, 2237 C.D, 2003 Argued: March 29, 2004 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEA VITT, Judge HONORABLE CHARLES p, MIRf\RCHI, JR" Sel1lor Judge OPINIOJ:iNOJ REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FI LED: May 25, 2004 '1'he Employees of West Shore Regional Police Department (Employees) appeal the order of the Court of Common Pleas of Cumberland County (common pleas court) which granted the West Shore Regional Police COlllmission's (Commission) petition and vacated the arbitration award which awarded the Employees pension benefits equal to 54.5% of salary, The common pleas court further ordered that from and after the date of its order, police officers may retire with a pension no greater than fifty percent of monthly average compensation, The Borough of Wormleysburg (Wormleysburg) and the Borough of Lemoyne (Lemoyne) entered into a municipal compact for police services which resulted in the creation of thc Commission, The Commission recognized the West Shore Regional Police (Policc) as thc exclusive bargaining agent for the Employees below the rank of Chief of Police and entered into a collective bargaining agrecmcnt. Upon the expiration of that collectivc bargaining agreement, the parties began negotiations for the contract year to begin on January I, 1996, Collective bargaining was initially unsuccessful and in accordance with Act III' a Board of Arbitrators (Board) was appointed to hear the matter, At a hearing held Febnlary 29, 1996, the parties resolved all issues with the exception of pension benefits, 'The Board suspended proceedings and rcconvcned on September 11, 1997, to decide that issuc, By award issucd March 12, 1998, (award), the Board determined thatlhe police pension plan should be amended to provide a normal re~irement benefit of 54,)11., of monthly average compensation, e ffcctive January I, 1996. On April 9, 1998, the Commission petitioned for review of the arbitration award in the common pleas court and contended that the award violated Aet 6002 which established a maximum normal retirement benefit of no more than 50% of averagt~ monthly eompt'nsation, The Commission did not do anything to move along its petition until it was placed on the COlllmon pleas court's purge list on September 16, 2002, When the Commission objected to the placement on the pUJ'ge list, the Police petitioned for judgment non pros. The Commission moved to have its petition decided on May 16, 2003. The com111on pleas court consolidated the two matters, Aet of .June 24, 196R, P.L. 237, as amcndcd, 43 P.S. *~217, 1-217, 1 0, Ad of May 29, 19%, P,L, (1955) 1804, as amended, 53 P,S, ~~767-778, 2 The common pleas court tknied the motion for non pros on the basis that the Policc failed to show any prejudice as a rl'sull of the delay bl'cause police officers who retired since the award received pension benefits at the rate established in the award and the rt~mainillg employees have suffered no prejudice, With respcct to the award itself, the eommoll pleas court determincd: The Policc Association argues that Act 600's fifty percent limit is not applicable in the present case because, prior to May 10, 1996, regional police departments were not specifically included in the Act. , . . The question, then, remains whethcr Act 600 applicd to regional police departl1l(~nts prior to thcir specitic inclusion In the May 10, 1996 amcndment. The Association [Police] contcnds that vacating the arbitrator's award in the instant case would apply legislation to a contract in effect prior to its enactment and would be the equivalent of an ex post facto law in violation of the Pennsylvania and Unitcd States Constitutions, As noted in Lcwistown [v, Pennsylvania Labor Relations Board, 558 Pa, 141, 735 A,2d 1240, (] 999)], however, the munieipal.ities forming regional police departments delegate to the regional police department the power to hirc, discharge and discipline, and to fix salaries, wages 2,nd benetits. . . , We arc satisfied that the forming muniCipalities should be viewed as joint employers for the purposes of Act 111, , . ]n this case, the boroughs of Lemoyne and Wormleysburg arc the joint employers of the West Shore Police Department. Acts III and 600 should he applied to them even though their police employees make up a regional department. (Footnote and citation omitted), Common Pleas Court Opinion and Order, September 26, 2003, at 2-4; Reproduced Record at 45a-47a, The Employees contend that the order of the common pleas court should be vacated for lack of subject matter jurisdiction where the petition for 3 review was not filed by the Act III employers who arc necessary parties to such an action, that the common pleas court erred when it vacated the award, where the C0111l11ission took no action to pursue review for nearly five years and the Employees were prejudiced by the delay, that the COlllmon pIcas court eO'cd when it vacated the award where the Board did not exceed the authority it had upon its appointment, that the common pleas court exceeded the scope of review prescribed for an Act 1 I] interest arbitration award when it fashioned a new award through its order. ) The Employees contend that the common pleas court erred when it determined that the Board exceeded its authority when it awarded pension benefits in the amount of 54,5% of salary in excess of the amount required under Act 600 where Act 600 was not applicable to regional police departments until after the Board began its proceedings.~ The parties authorized the Board to resolve issucs of retirement and pensIOn effective January I, 1996. At that time, Act 600 limited retircment benefits in those municipalities covered by Act 600 to 50%. Section I (a) of Act 600,53 P,S, *767(a)(2), provided: This Court's review of an Act J 11 interest arbitration award is limited to narrow certiorari where the award may only be reviewed I'm the jurisdiction of the arbitrator, any irregularity in the proceedings, an excess of the arbitrator's authority; or deprivation of constitutional rights, Pennsylvania State Police v, Pennsylvani~ State_:Troopers Association melancourl), 540 Pa, 66,656 A,2d 83 (1995), With respect 10 the coml11on pleas eOllrt's denial of the Employees' motion to enter judgment non pros, the decision rests within the discretion of the common pleas cOUli and will not he disturbed unless the cOl11mon pleas cOUli abused its discretion or committed an enol' of Ill\\'. Sellv v, Knepp. 722 A,2d 1099 (Pa. Super, 1998). ~ We have foregone the sequence of the Employees' arguments, 4 '. Each borough. town andlownship of this Commonwcalth maintaining a policc force of three or morc full-time mcmbers shall, and all othcr boroughs, towns or townships may, establish, by orclinancc 01' resolution, a polic'e pension tlll1d 01' pension annuity to bc maintained by a ehargc against each member of the police force, by annual appropriations madt~ by the borough, town or townshi p, by payments made by the State Treasurer to the municipal treasurer from the moneys received from taxcs paid upon premiums by foreign casualty insurance companies for purposes of pension retiremcnt for policcmcn, and by gifts, grants, devises 01' bequests grantcd to the pcnsion fund pursuant to scction two of this act. Such fund shall bc uncleI' thc direction of thc governing body of the borough, town 01 tuwnship, and applied under such rcgulations as such governing body, by ordinance or resolution, may prcseribe for the benefit of such members of the police force as shall recci ve honorablc dischargc therefrom by rcason of age and service, 01 disability, and may prcscribe for the benefit (i) of widows, and if no widow survives 01' if she survives and subsequently dies or remarries, thcn (ii) of child or chi Idren under the age of eighteen years, of members of the policc force or a mcmber who retires on pension who dies 01' if no widow survives or if she survives and subsequently dies or rcmarries, thcn thc child or children under the age of eighteen years of a member who retires 01' on pension who dies on or after the effcctive date of this amendment, may, dlll'ing her lifetime or so long as she docs not rcmarry in the case of a widow or until reaching the age of cightecn years in the case of a child or children, be entitled to receive a pension calculated at the rate offtfty per centum of the pension the membcr was receiving or would havc bcen receiving had he been retircd at the time of his death, Section 1 of Act 600 was amended effectiv(~ May 10, 1996, After the amendment, Section I provides: (a) Each borough, town and township of this Commonwealth maintaining a police force of three or 5 more full time members and each rcgiollal 1/OIicc dq)(/rtmellt shall, and all other boroughs, towns or townships may, establish, by ordinance or resolution, a police pension fund or pension annuity to be maintained by a charge against each member of the police force, by annual appropriations made by the borough, town, township 01' regiollal policc departmellt, by payments made by the State Treasurer to the municipal treasurer from the moneys received from taxes paid upon premiums by foreign casualty insurance companies for purposes of pension retirement for policemen, and by gifts, grants, dcvises or bequests granted to the pension fund pursuant to section two of this act. Such fund shall be under the direction of the governing body of the borough, town, township or rcgiollal po/ice departll/cllt, and applied under such regulations as such governing body, by ordinance or resolution, may prescribe for the benefit of such members of the police force as shall receive honorable discharge therefrom by reason of age and service, or disability, and may prescribe for the benefit (i) of widows, and if no widow survives or if she survives and subsequently dies or remarries, then (ii) of child or children under the age of eighteen years, of members of the police force or a member who retires on pension who dies or if no widow survives of if she survives and subsequently dies or remarries, then the child or children under the age of eighteen years of a member who retires or on pension who dies on or after the effective date of this amendment, may, during her lifetime or so long as she does not remarry in the case of a widow or until reaching the age of eighteen years in the case of a child or children, be entitled to receive a pension calculated at the rate of fifty per centum of the pension the member was receiving or would have been receiving had he been retired at the time of his death, (b) For purposes of this Act, the term 'regional police department' shall mean a police force organized and operated in combination by two or more municipalities through an intermunicipal agreement under thc act of July 12, 1972 (P,L. 762, No, 180), ' . . referrcd to as the Intergovcrnmcntal Cooperation Law, (Footnotc omitted, emphasis added), 6 53 P,S,. ~ 767, In addition, the 1996 amendment to Act 600 added (he following language in Section II, I : Notwithstanding any provlslOlI of this act, a regional police department retirement system established prior to the effective date of this amendatory act may retain the eligibility and benefit provisions specified in the retirement system's pension plan on the effective date of this amendatory act. Any subsequent modification of the eligibility or benefit provisions of the regional police department retirement system's pension plan shall be made under the provisions of this amendatory act. 53 P,S, ~ 777,1. The effective date of the amendments to Act 600 was May 10, 1996, Prior to that time, Act 600 did not refer to regional police departments in the plain language of the act. Although the Board did not issue its award until March 12, 1998, the Board's jurisdiction attached as of January I, 1996. The Board ordered the Commission to set the police pensions at a rate of 54.5%" The cOl11mon pleas court determined that the Board exceeded its authority and directed an illegal act because the pension rate e):ceeded 50% in violation of Section I of Act 600. However, as of the e,ffective date of the Board's decision, regional police departments were not covered under Act 600. This COlll1 agrees with the Employees that Act 600 did not apply to regional police departments prior to the 1996 amendment. Further, Section 11. J of Act 600, 53 P,S, S777, I, provides that regional police departments are not subject to the limitations of Act 600 before 7 ~7,1j ;;1 ~~.. \,0 ?" 11: Ci " """. .. r-" I .:-.r ) lUG~ . ~-.. f~;! ('~, C:, C,.; L,-,,'( lit-!I.' \,J" ) e,'j Jj!'J: I iTj"" (,,) , "-:-Ul l)..l 11-"'1" '.:.'l r..:; ...T I '" i,l,; , C) \";-.1 C) ''''' " . ' . h(!I1l! M, Iliu.{)~n l)cflUlY lltudllllllltiltr Shirlcyllalkr Chll:rClt'rk Supreme Court of PennsylvanJa Middll' Di'lricl Ootober 15, 2004 Mr. Oharles R. Hostutler Deputy Prothonotary/Chief Clerk Irvls Offioe Building, Room 624 Sb(th Floor Harrisburg, PA 17120 RE: West Shore Regional Polloe Department Commission, Pet Ii loner v, Employees of West Shore Regional Polloe Department, Respondents Oommonwealth Dooket Number - 2237 CD 2003 Trial Court/Agenoy Dk!. Number: 98-1994 Civil Term No. 529 MAL 2004 Appeal Dooket No.: Date Petition for Allowanoe of Appeal Filed: June 23, 2004 Disposition: Order Denying Petition for Allowanoe of Appeal Date: Ootober 15, 2004 ReargumenVReoonslderatlon Dlsposlllon: ReargumenVReoonslderatlon Disposition Date: jtJ P,O. nm; (124 Hatfhthutu, PAI7tnk 717:/87.6181 WW\\',ll(Jpc.orf: /mEl " ...... 0 = 03:~ = .... -"::t r" :z: -00" c::> rTl;z:r" <: z=<<' I Zrqrri W ~)> C:) "'0 r:!:iRo ~:r.""1 %"1'" .. -Or"l ><=0 W ;;0 0 --l , West Shore Regional Police Department C'ommi ssion 4-108-- 10q-q (L~ t 1\ L ) ~I ~' IN THE COMMONWEAl :lll COURT OF I'FNNSYLV ANIA \' , Employees of West Shore Rt~gional Police Department, Appellant No. 2237 C.D, 2003 Argued: March 29, 2004 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MAR Y HANNAH LEA VITI', Judge HONORABLE CHARLES p, MIRARCHI, JR., Senior Judge QPINLQ,N NQT RJ~PO~J'ED MEMORANDUM OPINION BY JUDGE McGINLEY The Employees of West FILED: May 25, 2004 Shore Regional Police Department (Employees) appeal the order of the Court of Common Pleas of Cumberland County (common pleas court) which granted the West Shore Regional Police Commission's (Commission) petition and vacated the arbItration award which awarcjed the Employees pension benefits equal to 54.5'1., of salary. The common pleas court further ordered that from and aner the date of its order, police officers may retire with a pension no greater than fifty percent of monthly average compensation. The Borough of Wormleysburg (Wormleysburg) and the Borough of Lcmoyne (Lcmoyne) cntcred into a municipal (,;Ompact for police services which resulted in thc creation of the Commission, The Commission recognized the West Shore Regional Polk~e (Police) as the exclusive bargaining agent for the Eniployer;s below the rank of Chief' of Police and entcred into a collective bargaining agreement. Upon the expiration of that collective bargaining agreement, the parties began negotiations for the contract year to begin on January I, 199(1, Collective bargaining was initially unsucccssful and in accordance with Act IIII a Board of Arbitrators (Board) was appointcd to hear the maller. At a hearing heJd February 29, 19%, the parties resolved all issues with the exception of pension benefits. The Board suspended proceedings and reconvened on Septcmber II, 1997, to decide that issue, By award issued March 12, 1998, (award), the Board determined that the policc pension plan should be alllended to provide a normal retirement benefit of 54,5%) of monthly average eompensCltion, effective January I, 1996. On April 9, 1998, the Commission petitioned for review of the arbitration award in the common pleas court and contended that the award violated Act 600' which established a maximumnol'lllCll retirement benefit of no more than 50% of average monthly compensation, The Commission did not do anything to move along its petition until it was placed on the comlllon pleas court's plll'ge list on September 16, 2002, When the Commission objected to the placement on the purge list, the Police petitioned for judgment non pros, The Commission moved to have its petition decided on May 16, 2003. The common pleas court consolidated the two mailers, Act of .JUIlC 24, 1968, P.L. 2J 7, liS (llI/cndcd, 43 P,S, ~~217, 1-2] 7.10, Act of May 29, 1956, P.L. (1955) 1804, liS IIII/ellded, 53 P.S, ~!i767-778, 2 , , The common pleas eOlll'1 denied the motion for lion pros on tlw basis that the Police failed to show any prejudice as a Il~sltlt of till' delay because police officers who retired since the award receivcd pension benefits at the rate established in the award and the remaining employees have su ffcred no prejudice, With respect to the award itselC the coml11on pleas court determined: The Police Association argues that Aet 600's fifty percent limit is not applicable in the present case because, prior to May 10, 1996, regional police departments were not specifically included in the Act. , , , The question, then, remains whether Act 600 applied to regional police departments prior to their specific inclusion in the May 10, 1996 amendment. The Association [Police J contends that vacating the arbitrator's award in the instant case would apply legislation to a contract in effect prior to its enactment and would be the equivalent of an ex posl facio law in violation of the Pennsylvania and United States Constitutions, As noted in Lewistown [v, Pennsylvania Labor Relations Board, 558 Pa, 1 41, 735 A.2d 1240, (J 999)J, however, the municipalities forming regional police departments delegate to the regional police department the power to hire, discharge and discipline, and to fix salaries, wages and benefits, , , , We are satisfied that the forming municipalities should be viewed as joint employers for the purposes of Act] 11, , , In this case, the boroughs of Lemoyne and Wormleysburg are the joint employers of the West Shore Police Department. Acts 1 I I and 600 should bc applied to them even though their police employees make up a regional department. (Footnote and citation omitted), Common Pleas Court Opinion and Order, September 26, 2003, at 2..4; Reproduced Record at 45a-47a, The Employees contend that the order of the common pleas court should be vacated for lack of subject matter jurisdiction where the petition for 3 review was not filed by tlw Aet III employers who arc necessary parties to such an action, that the C{'l11l11on pleas court erred when it I'acaled the award, wh{~re the Commission took no action to pursue rel'te\\' jClI' nearly Jive years and the Employel:s IVl're prt:iudiced by the delay, that the cOl11mon picas court crred when it vacated the award where the Board did not exceed the authority it had upon its appointl11enl, that the common pleas cOlll'lexcceded the scope of review prescribed for an Act III interest arbitration award when it fashioned a IWW award through its order. ' The Employees contend that the common pleas court enwl when it determined that the Board exceeded its authority whl:n it awarded pension benefits in the amount of 54,5'Yo of salary in excess of the amounl required under Act 600 where Act 600 was not applicable to regional police departments until after the Board began its proceedings,4 The parties authorized the Board to resolve issues of retirement and pension effective January I, 1996. At that time, Act 600 limited retirement benefits in those municipalities covered by Act 600 to 50'%. Section I (a) of Act 600,53 P.S. ~767(a)(2), provided: J This Court's review of an Act 111 interest arbitration award is limited 10 narrow ce'1iorari where thc award may only be reviewed for the jurisdiction of the arbitrator, any i1TegLllarity in th~ proceedings, an excess of the arbitrator's authority; or deprivation of constitutional rights, Pel)nsy.L\'ill1i<LStat, Police 1', Pennsvlvania State Troope!:~. Association (Belal1!<ourll, 540 Pa, 66, 656 A.2d 83 (1995). With respect to the common pleas court's denial of the Employees' mol ion 10 enter judgmel1lllon pros, the decision rests within the discretion of the common pleas court and will not Ill~ disturbed unless the common pleas court abused its discretion or committed an error of law, Sel!Y. 1', K,lCPP, 722 A.2d 1099 (Pa, Super. 1998), 4 We hal'e foregone the sequence of the Employees' arguments, 4 Each borough, town and township of this Commollwealth maintaining a police force of lhn.'e or more full-lime members shall, and all otlwr boroughs, towns or townships may, establish, by ordinancl' or resolution, a police pension fund or pension annuity to be maintained by a charge against each member of the police force, by annual appropriations made by the borough, town or township, by payments made by the State Treasurer to the municipal treasurer ii'om the moneys received from taxes paid upon premiums by foreign casualty insurance companies for purposes of pl~nsion retirement for policemen, and by gifts, grants, devises or bequests granted to thc pension fund pursuant to section two of this act. Such fund shall be ulllkr the direction of the governing body of the borough, tOWI1 or township, and applied under such regulations as such governing body, by ordinance or resolution, may prescribe for the benefit of such membcrs of the police force as shall receive honorable discharge therefrom by reason of age and service, or disability, and may prescribe for the bencHt (i) of widows, and if no widow survives or if she survives and subsequently dies or remarries, then (ii) of child or children under the age of eighteen years, of members of the police force or a member who retires on pension who dies or if no widow survives or if she survives and subsequently dies or remarries, then the child or children under the age of eighteen years of a member who retires or on pension who dies on or after the effective date of this amendment, may, during her lifetime or so long as she does not remarry in the case of a widow or until reaching the age of eighteen years in the case of a child or children, be entitled to receive a pension calculated at the rate of fi fly per centum of the pension the member was receiving or would have been receiving had he been retired at the time of his death. Section I of Act 600 was amended effective May 10, 1996, After the amendment, Section 1 provides: (a) Each borough, town and township of this Commonwealth maintaining a police force of three or 5 1110re full tin1\: members and ellch !'cgio//a! po!icc depa!'tme//t shall, and all other boroughs, towns 01' townships may, establish, by ordinancL' or resolution, a police pension fund or pension annuity to be maintained by a charge against eaeh member of the police force, by annual appl'Opriations made by the borough, town, township 01' /'egio//a! police dl'l)(/I'IIIII'//I, by payments malk by the Stale Treasurer to the l11unieipal treasurer lI'om the l110neys ree(~ived from taxes paid upon premiums by foreign casualty insurance companies for purposes of pension retirement for policemen, and by gifts, grants, devises 01' beqlll~sts granted to the pension fund pursuant to section two of this act. Such fund shall be under the direction of the govel'lling body of the borough, [own, township or /'egio//a! police depal'llIIclII, and applied under such regulations as such gm'crning body, by ordinance 01' resolution, may prescribe for the benefit of such mcmbers of the poliec forcl~ as shall receive honorable discharge therefrom by reason of age and service, 01' disability, and may prescribe for the benefit (i) of widows, and if no widow survives or If she survives and subsequently dies 01' remarries, then (ii) of child 01' children under the age of eighteen years, of members of the police force or a mcmber who retires on pension who dies 01' if no widow survives of if she slll'vives and subsequently dies 01' rcmarries, then the child 01' children uncleI' the age of eighteen years of a member who retires 01' on pension who dies on 01' after the effective dale of this amendment, may, during her lifetime 01' so long as she does not remarry in the case of a widow or untilrcaching the age of eighteen years in the case of a child 01' children, be entitled to receive a pension calculated at the rate of fI fly per centum of the pension tht~ member was receiving 01' would have been receiving had he been retired at the time of his death, (b) For purposes of this Act, the term 'regional poliee department' shall mean a police force organizcd and operated in combination by two or more 1l1unicinalities through an intermunicipal agreement under the 'lct of July 12, 1972 (P,L, 762, No. 180), ' , , referred to as the Intergovernmental Cooperation Law, (Footnote omitted, emphasis added), 6 5:1 P,S,.~767, In addition, thc 1096 amcndmcnt to Aet 600 added the following languagc in Section II, I : Notwithstanding any provIsion of this act, a regional poliee dcpartmcnt rctircment system cstablished prior to thc effective date of this amendatory act may retain the eligibility and benefit provisions specified in the retirement systcm's pension plan on the cffective datc of this amcndatory act. Any subsequcnt modification of the eligibility 01' benefit provisions of the regional police departmcnt rctirement system's pension plan shall be made undcr the provisions of this amcndatory act. 53 P,S, S777. I, The effcctive date of the amcndments to Act 600 was May 10, 1996, Prior to that time, Act GOO did not refer to regional police departments in the plain language of the act. Although the Board did not issue its award until Match 12, ] 998, the Board's jurisdiction attached as ofJanuary 1, 1996. The Board ordered the Commission to set the police pensions at a ratc of 54,5%, The common pleas . court determined that the Board exceeded its authority and directed an illegal act because the pension rate exceeded 50% in violation of Section I of Act 600. However, as of the effective date of the Board's decision, regional police departments were not covered under Act 600. This Court agrees with the Employees that Act 600 did not apply to regional police departments prior to the 1996 amendment. Further, Section I I. I of Act 600, 53 P,8, S777,1, provides that regional police departments are not subject to the limitations of Act 600 before 7 Pia: 00. 13 - 17 18 - 21 12 22 - 24 26 - 30 25 55 PYS510 -'mbedand County prothonotal,'/~ OUice Ci vi 1 Case Prl.l1t Page 1 1998-01994 WEST SIlOIH~ REGIONAL, POLICE DE (vs) Reference No" : CII!,!e Type. , , , ,I PETITWN JUdgment, j .. " ,00 J\ldge Alif"l.gnBd: 1l0FF'E:R GI;:ORGE: Ii: PJ Disposed Desc, : - ~ - ~ - ~ - - ~ ~ -., CafJfl CommentfJ .,... - - -, -" - - - - ~ EMPL/OYEa;:s OP WEST SHORE REGION 1/09/1998 3:30 0/00/0000 0/00/0000 F'j', led , , , , , , , , : T..me., j""": Execut,on Date c]'(ry Tria 1, , , , D:'FJf)t). flfJd DaLe, lIq ler Crt 1." HIg '\OJ;' Crt 2, I *****w.************************************************************************* General Index Attorney Info WEST SHORE REGIONAL POl,ICE: DEPARTMENT COMMISSION 301 MARKET STREET r,EMOYNE PA 17013 EMPLOYEES OF WEST SHORE REG- IONAL POLICE DEPARTMENT PI;~TITIONER DUFF! g l:rERHY R RESPONDlINT MCANENY JAMES /., *******************************************************************************~ · Date Entries * ******...****.************....******..*.**.*****.***..************************** 4/09/1998 4/17/1998 4/30/1998 4/30/1998 5/07/1998 5/11/1998 11/19/2002 11/26/2002 11/19/2002 12/23/:'.002 3/06/2003 3/27/2003 5/16/2003 5/22/2003 - - - - - - - - - - - - - FIRST ENTRY - - - . - - - - - - - - - - pETITJON FOR REVIEW ----------------..-------------------------------------..------------ ORDER - DA'rIlD 4/16/98 - IN RE PETITION FOR REVIEW- ARBITRATION AWARD OF 3/12/98 IS HEREBY VACATED AND SET ASIDE SOLELY WITH RESPECT TO PENSION IMPROVEMENT ISSUES - POLICE OFFICERS IIW RETIRE AT NO MORE TH.I\N 50% OF r'tONTHLY AVERAGE COMPENSATION PURSUANT TO TilE TER~IS OF 53 PS '771 - BY EDGAR BY BAYLEY J FOR GEORGIl E HOFFER pJ - NOTICE MAILED 4/17/98 _ -- ----- -.. .----.,--- - - -- -., -- ------- - - - -.. - -'- - - - - - - -- - --... - - - - -- - - - --- RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER ------------------------------------------------------------------- ANSWER TO PETITION FOR REVIEW --------------------------~---------------------------------------- ORDER - DATED 5/7/98 - IN RE RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER - ORLTER OF' 4/16/98 IS VACATED AND PARTIES ARE DIRECTED TO PROCEED WITH THIS ACTION IN ACCORDANC;E WITH PA RCP NO 206 ET SEQ BY GEORGE E HOFFER PJ - NOTICE MAILED !ij7 /98 ---------------------------------------,._-------------------------- ANSWER TO RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER -------------------------------------------------~-._-------------- PETITION FOR JUDGMENT OF NON PROS - BYDAVID B WASHINGTON ESQ ---------------------------------------------------------------,--_., ORDER - DATED 11/26/02 - IN RE F'OR PETITION TO JUDGMENT OF NON PROS - A RULE IS ISSUED UPON PETITION TO SHOW WHY JUDGMENT NON PROS SHOULD NOT BE GRANTED AG~INST PETITIONER - BY GEORGE E HOFFER PJ ------------------------------------------------------------------- ORDER OF COURT DATED 10/22/02 - IN RE 2002 PURGE LIST FOR 1999 CAS ES - THE CASE IS STRICKEN FROM TilE PURGE LIST AND SHALL REMAIN ACTI VE - J WESI'EY O/.,ER J'R cT - NOTICE MAILED 11/18/02 ------------------------------------------------------------------- ANSWER OF WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS - BY DAVID J LANZA ESQ FOR pETI'fIONER ------------------------------------------------------------------- ORDER - DATED 3/5/03 - A RULE IS rSGUED UPON PETITION TO SHOW WHY JUDGMENT NON PROS SHOULD NOT BE ENTERED - RUI,E RETURNABLE 20 DAYS FROM SERVICE PETITION SHALL FUE A BRIEF ON 30 DAYS AFTER ANSWER - BY THE COURT GEORGE E 1I0FFER PJ COPIES MAILED ---.,--------------------------------------------------------------- ANSWER OF WEST SHORE REGIONAL POLICE DEPT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS - BY DAVID J LANZA ESQ FOR PETITIONER ---------------------------------------------------..--------------- PRAECIPE FOR LISTING CASE FOR ARGUMEllT - PETITION FOR REVIEW F'ILED BY WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION - BY DAVID J LANZA ESQ FOR PETITIONER ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY DAVID B WASHINGTON ATTY FOR DEFT - RESPONDENT'S PETITION FOR JUDGMENT OF NON PROS AND PETITIONER'S PETITION FOR REVIEW exhibit A .""'. \',""~ r,' ;;"" ~', ( \ ,tl l '''''' ~ 1 nACKOr.!OUND As the result ot the parties' ongoing negotlatlonsl ooncluded ImmediatelY preceding the Act 111 hearing scheduled tor February 29. 1996. an Agreement was reached resolving all the Issues In dispute. except "Article 10.06 RetlremeD1". The Act 111 panel retained Jurisdiction over that open and disputed Issue. and on September 11. 1997 It reconvened to hear the parties' respective arguments on the retirement Issue. POSITIONO OF THE PARTIES West Ohore Realonal Pollee Assoc~atlon Based on Its analysis of the limited data supplied by the Pollee Commission. the Association asserts that. while both a reduced superannuation age. and an Increased retirement benefit. may be pOSSible without Impairing the actuarial soundness of the pension I fund. I t requests on I y the Improvement that wou 1 d bf'I'l<lf I t Ail members I a fifty-eight percent (56%) retIrement benefit. West 9hore Realonal Pollee Commission The pensIon fund has adhered to sound and conservative Investment poliCies and actuarial assumptions. Based on projected earnings of seven and half percent (7.5%) per annum. annual State Aid of approximatelY $44.000.00. and avoidance of an Increased Mlnfiiium Municipal ObI Igatlo"ri';the-'pre'eent fifty percent (50") retirement benefit Is actuarlally soundl there Is no need to Improve any pension benefit because West Shore's total compensation p&.okage compares favorably to what local pollee offlce~s receive In wages and benefits. - 1 - (p 'I I I I I ,- r-, D IOCU!lElI ON My r~vlew of the parties' settlement of the other Issues In dlsputel revealed through comparison nf their present and prior Collective Bargaining Agreements, convinces me that the Association has made reasonable gains. However. the evidence and arguments produced In this proceedlngl especially the testimony and exhibit produced by the Association's actuary. leave no doubt that an Increase In the bargaining unit's retirement benefit may be achieved without Impairing the actuarial soundness of the pension fund, However. there Is no basis In the record for an Increase of eight percent (8%). hence. the fOllOWing Award. AWARD I In accordance with the provlAlons of Article X. Section 10.08 of the Collective Bargaining Agreement covering the periOd of January 1. 1996 through December 31. 19981 specifically aCknOWledging retirement as an unresolved "open" Is~ue. the pollee pension plan shall be amended retroactively to January 1, 1996 to allow pollee officers to retire at fifty-four and a half percent (54.5%) of monthly average compensation. 'I n recogn I t Ion of the fact that no one. has ret I rea-aurTng the Intervening time period. the funding of this amendmentl Including the minimum employee contribution required by law and/or actuarial SOUndness. sha 11 beg I n wi th the p I an year cOlTUllenc I ngJanuary 1, ';.,,' -' 1998. ~ 2 - '7, >- CJ Cl~ I:: rL~ \.,- lJ,I() .. 8\' ,r; .. 1,(.', , t~ _c,_~ ;'\.: , c) C,.. C, 0' U..; : _.1 cr~ " C- fl.. f Ilj: , " 1,1 ci n j (j', ) , ' ~ (K.:l ~I.c) . ~ ~~ I p ~ , '..--" I ~ ~ " '...... '\;."",;-" ....... 1"'"'\ HECEIV~D Af'R 2 4 1990 IERRY R, PUfflE RICH^RP W, STEW^RT C. ROY WEIDNf.R, IP., EPMUND G, MYI,RS P^VID W, P.l.UCf. MI.PH H WRIGHf, Ill., P^VID J, LANZA 'OSf.PH L HITCHINGS M^P.K C PUf'I'IE KEIP.SHN 1.. W^I.5H I.^W OFfICf.S JOHNSON, DUFFIE, STEWART & WEIDNER A Profeulcmnt Corporatloll 301 MARKET STREET P. 0, BOX 109 LBMOYNE, PENNSYLVANIA 17013,0109 CC f) [f;)) \\? HOM~ IJ.'NS(JNI.i OF COUNSI!L TllI.BrllONH 717-761,1540 MCSIMII.f. 717-761'301' f.'M^IL m,II@ld,w,com April 14, 1996 Curl Long, Prothonotary Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013-3387 Re: West Shore Regional Pol~.Qepartment Commission v. EmploYll.U.of West Shore ReglQ.o.at.E.ollce Department Co~ Dear Curt: Enclosed is an original and two (2) copies of a proposed Order per your request (reference the attached original of my previous correspondence to you, dated April 7, 1998), along with postage prepaid, addressed envelopes, Please return to the undersigned the enclosed copy of the Petition for Review with a docket nLlmber. Thank you for your attention to this matter, Very truly yours, JOHNSON, DUFFIE, STEWART & WEIDNER David J. Lanza DJL:bmr: 100" 6-3/109'177 i:nclosures oc: Gary M, L1ghtman, Esquire West Shore Regional Police Department Commission ?' I" I. II I " ....- (.f,/llJ>/7 16 r'''''. I ""," I' Ii I", !I /, '-,.' -{J'.I:' :,', " ',; ,1,' (V"' \F' lC ~.. ~-<> ~ -s 'y 6- 1--. ~ " :1')"" I ~',' fH$-~ -.",,~..r ,:.. \ /",~~i'-.I': '\1,-::;/.: f,.' 0 . . ~ ~~)' .'~ 'L';' , . 1-' C}! '&';;IC,{','C:;' , "'1"1 \" iJ' ".' I' ~,...,. t; ;-. ",,0 ~ UJ 0:: 5 a 0 U)f-.... wUJ.... :i~~ <(f-<( U)Q. J: (!) 0 ..'- -10;:" ..........~ , u. Iii :E . U) >-2- ~L()O:: 00:: (!)~~ P<i ~ A C]J ...... 0 ~ ~ 0 , all '" t1 ~ IX: ~~8~ t:." ~{} 'b!;?: V) &1.8 ~ ;;~9 '" i"l,t1 U i'lrl ~':;;'~ 0.. j:~; 1~ u: - u. Vl O~ ","" 0 fJ ~l ,1 '0 .1.',' ~ . '" ;'\J ~..S' f::l oz CC &~ "" o;Z 0.. '''Ii: ~Lj "'" ~ , , c:t eg~ ::JO '" :;;.; A'" ..; ""').~ Z ~ ~ ..l 0 0 Vl ~ ~ el 0 >-, t Ii h : ~ d~ ",;t. q I~ ....' ,,....,, r~ CERTIFICATE OF SERVIC~ I, James L. McAneny, Esquire, hereby do (:ertity that on this 28th day of April, 1998, 1 served the foregoing Respondent's Motion to Reconsider and Vacate Order, in the manner indicated below, upon the following; SENT VIA U.S. MAIL. FIUST CLASS. POSTAGE PREPAID FOR FILING Lawrence E, Welker, Prothonotary Court of Common Pleas of Cumberland County COUlthouse, One Courthouse Square 9th Judicial District Carlisle, Pa, 17013 SENT VIA U.S. MAIL. FIRST CLASS. POSTAGE PREPAID David .I, Lanza, Esquire JOHNSON, DUFl'lr,:, STEWART & WEIDNER 30 I Market SI. P,O. Box 109 Lemoyne, Pa. 17043-0109 ,C " ~-- --;. ~:...~" ._------_.----,.~ James 1. McAner!y.,EsqutfF'- Attorney lD. #22259 LIGR'J'MAN & WELBY 2705 N, Front SI. Hanisburg, Pa, 17110 (717) 234-0111 '1 Ji (, IL i . ~ 17; jJ~ , , ..,.. t:l (; c;(, ...~J 'j i'" .. ,co. 1 1Ilc:J ,- :' (',,, :'1.: C(' Lo"'- u... ')' hr' tee," '<.i" c.' '(',J (.-,1 t<l -"!.:f'j ~ 1.1 1.1- tE\CI.\ ,.~ \,''It:fJ ~... rl.. ~-' } c.\.. I' .d: :5 l.l.. to 0 tf\ (.) ~ Ln ~... lr: ,,! (" ti~ .. :"'J '_1' L~'C' .:J I. , c ,; ~J"c " ~., ,J <., W" ~ ., l.~ r' j",. c:i 0..' ''1 ~i: , " " G: ~k, r 1i'lj . f:' HI. ! 0... ~~ .' [L. l'Q :j 0 (,.1' U v /,....\ ,,-.., 7, [n an appeal from an A1'bitration Awal'd made pursuant to Act III. this Honorable Court's scope of review is one of nalTOW certiorari, and restricts the reviewing Court to questions concel'l1ing (I) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator's powers; and (4) deprivation of constitutional rights, Washington Arbitration C'a,I'e, 436 Pa, 168,259 A, 2d 437 (1969), 8, Petitioner's appeal is based on only one contention, that the Arbitrator's A ward constituted a legal error, However, given the narrow certiorari scope of review, such a contention is clearly not a ground for reversal under Act 111, 9, Since May 7, 1998, Petitioner has not submitted any argument or b1'ief to support its contention, 10 On September 16, 2002,lhis Honorable Court properly notified the parties ;lnd listed the above captioned matter to be purged on October 22, 2002, 11, October 11, 2002, Petitioner sent a letter requesting that an Order be issued removing the above captioned matter from this Honorable Court's purge list. Petitioner contends, without support, that additional case and statutory authority have been clarified in the past four years which are in some way relevant to this maller, 12, In accordance with Pa, R"J,A 1901(c) and Cumberland County Court Rule 228, a matter is properly ordcred to be terminated on the grounds ot unreasonable inactivity and where the docket of the matter shows no evidence of activity dudng the previous two years, 13, Respondent submits that in the past/our years no activity has taken place, and that such inactiVity has been grossly unreasonable, The scope of review has not changed and there are no case or statutory authorities that have been clarified that allow reversal of an arbitrator's award for legal error, 14, Petitioner has provided no indication what authorities they contend are relevant to this matter, If such autho1'ity did exist, all Petitioner needed to do was file a brief with this Honorable Court. Petitioner's objectiotl provides no special cirC\lmstances for their failure to proceed nor has it provided reasons that should compel this Honorable Court from not striking this case for Petitioner's failure to prosecute, 15. Petitioner's delay has not only burdened the Docket of this Honorable Court, but has also severely prejudiced Respondent by preventing the implementation of . a provision of an Award bargaln~d for in earnest, ~7 ""'" f"", 7. Denied. As a conclusion of law. 8, Denied, As a conclusion of law, By way of further denial, the Arbitrator's award exceeded the Arbitrator's powers under clear statutory authority, especially as has been olarlfled by a subsequf;lnt decision of the Pennsylvania Supreme Cour!. ) 9, Admitted In Part, Denied In Part, While West Shore Regional Police have not submitted a Brief, the Employees have not been prejudiced thereby, Prejudice Is an essential element for a Judgment of Non Pros, 10, Admitted, 11. Admitted In Part, Denied In Part, It Is admitted that Petitioner West Shore Regional Police Commission sent the aforesaid letter, By way of denial, additional case authority exists which clarify the existing statutory authority. 12, Denied, As a legal conclusion, An Order contrary to Employees' position has already been entered by this Court on October 22, 2002. By way of further denial, any such dismissal requires an actual showing of prejudice by the parties seeking dismissal. Employees can show and have shown no prejudice, 13, Denied, Legal authority has been clarified during the Intervening time since the initiation of this action. By way of further denial, the Arbitrator's award provides more than mere "legal error." The Arbitrator exceeded his powers under the statute as clarified by intervening legal authority, By way of further denial, Employees can show and have shown no prejudice resulting from any delay, 14. Denied. It Is Employees' burden to demonstrate actual prejudice, West Shore Regional Police does not bear the burden of showing "special circumstances," By way of further denial, a Brief updating this Court on the law and on the Arbitrator's Initial award exceeding the Arbitrator's authority and powers Is forthcoming. 15. Denied. It Is denied that the docket of this Court has been burdened or that Employees have been prejudice. It is denied that the award had been prevented from being implemented In any way. The provisions on which the Arbitrator exceeded his powers have not affected any current employees. The 03 Exhibit A ~ C:I t: li ..~ _'.:1 'i , , l); , .,( 0.0 , " M I ( I I Hi C.J " C".I ::;; Cl i.~J -- r\ 7. Denied, As a conclusion of law. 8. Denied, As a conclusion of law. By way of further denial, the Arbitrator's award excoeded the Arbitrator's powers under clear statutory authority, especially as has baen clarified by a subsequent decision of the Pennsylvania Supreme Court. 9, Admitted In Part. Denied In Part, While West Shore Regional Pollee have not submitted a Brief, the Employees have not been prejudiced thereby, Prejudice Is an essential element for a Judgment of Non Pros. 10. Admitted, 11. Admitted In Part, Denied In Part, It is admitted that Petitioner West Shore Regional Pollee Commission sent the aforesaid letter. By way of denial, additional case authority exists which clarify the existing statu lory authority, 12, Denied, As a legal conclusion, An Order contrary to Employees' position has already been entered by this Court on October 22, 2002, By way of further denial, any such dismissa, requires an actual showing of preJudice by the parties seeking dismissal. Employees can show and have shown no prejudice. 13. Denied, Legal authority has been clarified during the intervening time since the Initiation of this action, By way of further denial, the Arbitrator's award provides more than mere "legal error." The Arbitrator exceeded his powers under the statute as clarified by Intervening legal authority. By way of further denial, Employees can show and have shown no prejudice resulting from any delay. 14. Denied, II is Employees' burden to demonstrate actual prejudice, West Shore Regional Police does not bear the burden of showing "special circumstances," By way of further denial, a Brief updating this Court on the law and on the Arbitrator's Initial award exceeding the Arbitrator's authority and powers Is forthcoming. 15, Denied, It is denied that the docket of this Court has been burdened or that Employees have been prejudice. It Is denied that the award had been prevented from being Implemented in any way, The provisions on which the Arbitrator exceeded his powers have not affected any current employees, The LH I,,", ,..", I,: disputed provisions of the Arbitrator's award affect only the pension benefits, The remaining provisions of the award have been Implemented, WHEREFORE, Petitioner West Shore Regional Police Department Commission respectfully requests that this Honorable Court enter an Ordor dismissing the Petition of Employees of West Shore Regional Police Department for Judgment of Non Pros, i i Respectfully submitted, ::""'". t:lmrt & W"d"m David J, Lanza Attorney I,D, No, 55782 301 Market Street P,O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Petitioner :165725 10016.3 4b /jltOilj~ 1""\ 7, Denied, As a conclusion of law, 8, Denied. As a conclusion of law, By way of further denial, the Arbitrator's award exceeded the Arbitrator's powers under clear statutory authority, especially as has been clarified by a subsequent decision of the Pennsylvania Supreme Court. 9, Admitted In Pal1, Denied In Part, While West Shore Regional Pollee have 110t submitted a Brief, the Employees have not been prejudiced thereby. Prejudice Is an essential element for a Judgment of Non Pros, 10, Admitted, 11, Admitted In Part. Denied In Part, It is admlttad that Petitioner West Shore Regional Pollee Commission sent the aforesaid letter, By way of denial, additional case authority exists which clarify the existing statutory authority, 12. Denied, As a legal conclusion, An Order contrary to Employees' position has already been entered by this Court on October 22, 2002, By way of further denial, any such dismissal requires an actual showing of prejudice by the parties seeking dismissal. Employees can show and have shown no prejudice, 13. Denied. Legal authority has been clarified during the intervening time since the Initiation of this action. By way of further denial, the Arbitrator's award provides more than mere "legal error." The Arbitrator exceeded his powers under the statute as clarified by intervening legal authority, By way of further denial, Employees can show and have shown no prejudice resulting from any delay, 14. Denied. It Is Employees' burden to demonstrate actual prejudice. West Shore Regional Pollee does not bear the burden of showing "special circumstances." By way of further denial, a Brief updating this Court on the law and on the Arbitrator's initial award exr.eeding the Arbitrator's authority and powers is forthcoming. 15, Denied. It is denied that the docket of this Court has been burdened or that Employees have been prejudice, It is denied that the award had been prevented from being implemented In any way, The provisions on which the Arbitrator exceeded his powers have not affected any current employees, The Lfq " (;tqte R, ~~'~t ~ Clt}(j Po'<~ t~~ to ~~t <. et:it C~ ~ lib ") Id6rJt:iF.. 10t}er, '.lq~~&:t ' 98 '.J' oS Po . et:. f:t ~ (it) , et:it C.):e., ~ t; e.1 .tOt}' /J.1it:it) C:i o-l- /ll~., "110, 1'01.' li'eoSl\) tf..tc ~ ~~t . ~ li'eV1 t}Cb :t"oS '-.... (6) s' .!.f:t' cVo- (;ly ~}t, trot '---- t; ,: 4J 'Yl/e oS Po '101] ~ ~O-l- ct. "OhV1q" cil,se. et.tti :t'0-l- .199 et; JO t}lj 'I,' . Of) ""'- ~ ~. ~l ",.Ot}, qt}. :t'0 .~,.,...... '.... .,""" '0" DoE "'. "" ~"" '''' '" ' . .,Ct. '" , ." "" "",. <i "'d . '" 8,,,,, .,0'10 ., ...... ... ~ .,. 2",?","~... 170'';- p....:, OF ~ ....,. '0,- ~ 4,," ~'".i 3.0 , "" P · """ ',,,,,;':>0,,";';:''''' . lb" 'J;i<>, ^o, -"'''errt ~ q, p St 'li'.s. ') 01.' . 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WEST SHORE RE(J)ONAL POLICE DEPARTMENT COMMISSION, Pluinliff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1994 CIVIL vs, CIVIL ACTION - LA W EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Defendunt IN RE: J'ETlTJOr,j FOR REVIEW BEFORE HOFFER P.J, AND HESS ], -. ~_.-._~ QRDEI~ AND NOW, this .l.(' ~ day of September, 2003, the petition of the West Shore Regional Police Department Commission for Rt:viewis GRANTED and the urbitmtion uwurd of March 12, 1998, is V ACA'rED with respect to a pension inereuse, und it is further directcd that, from und ufter the dutc of this order, police officers muy retire at no more thun fifty percent (50%) of monthly uverugc compensation pursuant to the tcrms of 53 1',8, 771, Nothing herein shull modify uny benefits upplicable to retirements prior to the dute of this order, BY THE COURT, - 4J David J, Lanza, Esquire For the Pluintlff David'll Wnshington, Esquire For the Defendunt ,~..t../.(" /1H.....luL 9..1'1.03 c-) r'~ :rlm ('..' ...~ , WEST SHORE REGIONAL \>OUCH DlWARTMENT COMMISSION, Vlaintlff IN TIlE COURT (W COMMON I'LEAS 01' CUMBERLi\ND COUNTY, PENNSYLV AN\A 98-1994 CIVIL CIVIL i\CTION - LAW VS, EMVLOYEES or WEST SHaRF. REGlONAL voLlCH DEPARTMENT, Defendant IN RE: PETITION FOR REVIEW :...:---_.::.....c.----.----~ !!EFQB.E HOSFERJ~J~AN121mSs, L OPINION AND ORDER -- --~-;...---- " ,hi, "",. ,'" ,0<"'''"' ,,,' "",h' ",'ow ,1 ,'" d~"'" ,1 "' .h"""'" "," ,,,,",,,",. ,h' ,.,it'''"' "",,, to '" ,w,", whl,h ,m,",,'" , po"" p'''''''' "", to ,\I,W """ ,m", " "II" " 54.5 ,,""''' ,,"", ",,",hI, "",,,,. ",,"p"''''' ,,, ',"," ," " 1""'" ".,t"" ,. tho "". '1'''' "'~ ,,,,mw ""I ,,,", " .""",. 0< ,,,' ",<,II,d .. A" 6110:' " p.8. 171. wh"h "m'" ""',,, h"""" '0 "p " 50 ",,,., ,1 " olf"d' "",'h" ""'" """,ot'"'''' ,,,,,,,Id """ ,,,'\\0\1",, ,'" """"" ,,,,,, .,it""" """"". p,",,", bolo" ,h' cow\. how,"'" I, ,'"' , 1"""" m,d'" ,'" ".p'''''''' 10< ,,,d,,,ot' o[ '" ".. h",d " "~,,,it, ",itl"'''' . ", pO< itl"" I""''''' ,hi' .."" I, 19" ",d ,'" m"'" h~ "I, w, odd"" ,,",,'" ",po,d'"," p'""" 'b' J ,d,,,,,.' ,[ ," pro" T"'"" lot recently been Iistecl for argument. "..""",1 ,r, ,,~ " ~,,,m' ,rd",'" "~",I" ~, ", ,,,I "!,,...,,11oIl"'''. 71 0 A,2d 1098 (I". ,"". 'I~' ""."", whl,h m'" bo ,dd"''''' '" (I) W"',"', '''''' had"'" , I~' ,r d'" dill,,,,, " II- pMl ,f th, ,1,1,,, lf1" 1,1"", to p,,,,,d with ,,,,m,,hI' ,,,,,p,it",,, (2) whoth" ,'" ,\,,,,,"fh~ , "",,,III" IO,oon ro' ,'" dol,,; "'" (3) ,,\wI\wI ,'" dol" "" """" 51 ."", r-, 98-1994 C(VIL uctuul prcjudice to thc dcfendant. Hcre there hus been d(~luy with no uppul'ent explunution. On the other hund, there has been no prcjudicc, whulsoever, to the respondent. In the intervening yeurs, severn I police ofJicers huvc r(~tired und have bcgun receiving pensions atlhe highcr rate, The petitioner acknowledges that the outeollle of this litigution will not udversely affect their pension slutus, In the llIeuntillle, the remaining employees have suffercd no prcjudict, in their ubility to defend uguinst the cOlllmission's appeal. Accordingly, we will deny the respondent's petition for ujudgment of non pros and dispose of the mutter on the merits, The Employees of the West Shore Regional Police Department (Police Assoeiution) is the recognized und cxclusive burguining unit rcprcsentutive for thc purpose of collective burgaining with respect to the terms of employment, including wages, hours und conditions of employment. The West Shore Regionul Police Commission (Commission) is u police commission formed by mutual ugreement between the boroughs of Lemoyne und Wormleysburg, Cumberland County, Pennsylvania. In 1995, the Police Associution entered into negotiutions for a collective bargaining ugreement to commence Junuury I, 1996, and run to December 31, 1998, In early 1996, negotiutions concluded and an agreement wus reuchcd on ull issues in dispute except for the improvements demanded by the Police Associution with respect to their retirement pension, The Police Association hud sought un inereasc in the monthly averuge eompensution puyments, On Murch 12, 1998, the neutral urbitrator, Kinurd Lang, issued an {Wiard to the effect that "the Police Pension Plan shall be umended retrouctively to Junllary I, 1996 to ullow police officers to retire at tifty-four and u half. percent (54,5%) of monthly averuge compensation," (Awurd, p, 2) It is from this uwurd thut the Commission now appeuls, The Police Association urglles that Act 60o,s tifty percent limit is not upplicable in the present case beeuuse, prior to Muy 10, 1996, regional police departments were not specifically 2 5& ;"'" ,."... 98-1994 CIVIl. includcd in thc Act. In support of il!J position, thc Associution citcs I}Ql'Ou!ili..ll.Cl;QwistowIL~ I'cnnsylvllnhI.LlIq!!r Rc1il.lli!ns I}Q~rqL 7.15 A,2d 1240 (I'll, 1(99), Thc Association relics on J.,cwis!l,lwn for the proposition that regionul policc depllrtmcnts eun bc uwurdcd pcnsion pluns beyond the limits of Act 600, The case, howcver, docs not stllnd fIll' thllt pl'Oposilion, In Lcwisto~n, II regionul police departmcnt and police associution were lInuble to agrcc to terms on u new IlIbor ugrecmcnt. An nrbitration puncl had awurdcd a pcnsion plan providing rcgional police departmcnt officcrs with u retirement bcnefit ofscventy percentofthcir finlll uvcruge sulury, Importnnlly, thc arbitrution panel's uwurd wus not appcaled, Nonetheless, the borough, believing that the uwurd WIIS II vioiution of Act 600, refuscd to distribute pension funds in uccorduncc with thc IIrbitl'lltion award, The associlltion filed an unfuir IlIbor practicc uction, In the end, thc Suprcme Court upheld the urbitl'lltor's uwnrd of'sevcnty percent, not because it was luwful but becuuselhc borough hud tlliled to IIppelll the uward IInd theretlJl'e "wuived its right to raise the leglllity of the arbitl'lltion uWllrd," !~--' ut 1246, The question, then, remuins whether Act 600 upplied to regionul policc depurtments prior to their specific inclusion in the MIlY 10, 1996 umendment. The Association contends that vucuting the urbitrutor's uwurd in the instunt cllse would upply legislutionto a contruct in effect prior to its enuctment und would be the equivulent of un ex postfi1cto luw in violation of the Pennsylvuniu und United Stutes Constitutions, As noted in Lcwistown, however, the mllnicipulities forming regional police departments dclegate to the regionul police department the powe.r to hire, dischurge and discipline, IInd to fix sularies, wuges und benefits, 1.4, ut 1244. We ure sutisfied that the forming municipulities should be viewed liS joint employers for the :l 51 PYS511 Cumberland County Prothonotary's J)Jfice .. ci viJ. Case Print (, 1 Page 1998-01994 WEST SHORE REGIONAL POLICE DE (vs) Reference No, . : Cafle Type. . . , .: PETITION Judgment. . . . , . : .00 Judge Assigned: HOFFER GEORGE E PJ DiopoEled Desc. : .. .. .. - - .. .. .. .. .. .... Cas e Comme n t s ............ - - .. .. - .. .. EMPLOYEES OF WEST SHORE REGION Filed,. , , ,. , , : 4/09/1998 Time.,I,."..: 3:30 Executlon Date 0/00/0000 Jury Trial, . , . Disposed Date, 0/00/0000 Htgher Crt 1,: Hlgher Crt 2,: ...****************************<k************************************************ General Index Attorney Info WEST SHORE RE:GIONAL POI.,ICE PETITIONER DUFFIE JERRY R DEPARTMENT COMMISSION 301 MARKET STREET LEMOYNE PA 17043 EMPLOYEES OF WEST SHORE REG- RESPONDANT MCANENY JAMES L IONAL POLICE DEPARTMENT .****************************************************'********h****************** * Date Entries * ******************************************************************************** 4/09/1998 4/17/1998 4/30/1998 4/30/1998 5/07/1998 5/11/1998 11/19/2002 11/26/2002 11/19/2002 12/23/2002 3/06/2003 3/27/2003 5/16/2003 5/22/2003 FIRST ENTRY PETITION FOR REVIEW ""----------------------------------------------------------------- ORDER .. DATED 4/16/98 .. IN RE PETITION FOR REVIEW .. ARBITRATION AWARD OF 3/12/98 IS HEREBY VACATED AND SET ASIDE SOLELY WITH RESPECT TO PENSION IMPROVEMENT ISSUES .. POLICE OFFICERS MAY RETIRE AT NO MORE THAN 50% OF MONTHLY AVERAGE COMPENSATION PURSUANT TO THE TERMS OF 53 PS 771 .. BY EDGAR BY BAYLEY J FOR GEORGE E HOFFER PJ .. NOTICE MAILED 4/17/98 ------------------------------------------------------------------- RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER --------------------------_____.0__---_----------------------------- ANSWER TO PETITION FOR REVIEW ------------------------------------------------------------.._----- ORDER.. DATED 5/7/9B .. IN RE RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER - ORDER OF 4/16/98 IS VACATED AND PARTIES ARE DIRECTED TO PROCEED WITH THIS ACTION IN ACCORDANCE WITH PA RCP NO 206 ET SEO BY GEORGE E HOFFER PO .. NOTICE MAILED 5/7/98 ------------------------------------------------------------------- ANSWER TO RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER ------------------------------------------------------------------- PETITION FOR JUDGMENT OF NON PROS .. BYDAVID B WASHINGTON ESO - - - - - - - - -. - - - - - - - - - - - - - - - - - - - - - - - - - .- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -' - - ORDER .. DATED 11/26/02 .. IN RE FOR PETITION TO JUDGMENT OF NON PROS .. A RULE IS ISSUED UPON PETITION TO SHOW WHY ,JUDGMENT NON PROS SHOULD NOT BE GRANTED AGAINST PETITIONER .. BY GEORGE E HOFFER PJ -----------.-------------------------------------------------------- ORDER OF COURT DATED 10/22/02 .. IN RE 2002 PURGE LIST FOR 1999 CAS ES .. THE CASE IS STRICKEN FROM THE PURGE L~ST AND SHALL REMAIN ACTI VE .. J I~ESLEY OLER JR J .. NOTICE MAILED 11/18/02 -------------------------.------------------------------------------ ANSWER OF WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS .. BY DAVID J LANZA ESO FOR PETITIONER ---------_-----00--------..------------------------------------------ ORDER - DATED 3/5/03 - A RULE IS ISSUED UPON PETITION TO SHOW WHY JUDGMENT NON PROS SHOULD NOT BE ENTERED - RULE RETURNABl,E 20 DAYS FROM SERVICE PETITION SHALL FILE A BRIEF ON 30 DAYS AFTER ANSWER .. BY THE COURT GEORGE E HOFFER PJ COPIES MAILED -----------------------------------------------------------..------- ANSWER OF WEST SHORE REGIONAL POLICE DEPT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS .. BY DAVID J LANZA ESQ FOR PETITIONER _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ M' _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - PRAECIPE FOR LISTING CASE FOR ARGUMENT .. PETITION F'OR REVIF~W FILED BY WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION - BY DAVID J I.ANZA ESO FOR PETITIONER -----------------------------..------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY DAVID B WASHINGTON ATTY FOR DEFT .. RESPONDENT'S PETITION FOR JUDGMENT OF NON PROS AND PETITIONER'S PETITION FOR REVIEW &~ """",\ .- WEST SHORE REGIONAL POLlCE DEPARTMENT COMMISSION, PluintJff IN THE COURT OF COMMON PLEAS OF CUMBERL..<\ND COUNTY, PENNSYL VANIA 98-1994 CIVIL VS. CIVIL ACTION - LA W EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Defendant IN RE: PETITION FOR REVIEW BEFORE HOFFER. PJ, AND HESS, J, OPINION AND ORDER In (his case, (he petitioner hus sought review of the decision of an arbitration panel. Specifically, (he petidoner excepts to an award which amended a police pension plan to allow police officers to retire ut 54,S percent of their monthly average compensation, There are no factual disputes in the case, The very nan'ow legal issue is whether or not so-called "Act 600," , 53 P.S, 771, which limits pension benefits to up to SO percent ofan officer's monthly average cOmpensution, should have controlled the outcome of the arbitration proceeding, Pending before the court, however, is also a petidon filed by the respondent for judgment of non pros based on inactivity in this case, The petitioner initiated this action in 1998 and the matter has only recently been listed for argumcnt, We address first the respondent's petition for judgment of non pros, The test for dismissal of a case on account of docket inactivity was set out in Jacobs v, Halloran, 710 A.2d 1098 (Pa, 1998), The questions which must be addressed are: (1) Whether there has been a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude; (2) whether the plaintiff has a compelling reason for the delay; and (3) whether the delay has caused {f( - " t"'\ 98.1994 CIVIL actual prejudice to the defendant. Here thcre hus becn deluy with no apparent explanlltion,On the other hand, there hus been no prejudice, whatsoever, to the respondent, In the intervening years, several police officers huve retired and have begun receiving pensions at the higher rate, The petitioner acknowledges that the outcome of this Iitigution will not udversely affect their pellsion status, In the meantime, the remaining employees have suffered no prejudice in their ability to defend aguillst the commission's appeul. Accordingly, we will deny the respondent's petition for a judgment of non pros and dispose ofthe matter on the merits, The Employees of the West Shore Regional Police Department (Police Association) is the recognized and exclusive bargaining unit representative for the purpose of collective bargaining with respect to the terms of employment, including wages, hours and conditions of employment. The West Shore Regional Police Commission (Commission) is a police commission fonned by mutualllgreement between the boroughs ofLemoyne and Wonnleysburg, Cumberland County, Pennsylvania. In 1995, the Police Association entered into negotiations for a collective bargaining agreement to commence January I, 1996, and nul to December 31, 1998, In early 1996, negotiations concluded and an agreement was reached on all issues in dispute except for the improvements demanded by the Police Association with respect to their retirement pension. The Police Association had sought an inerea~e in the monthly average compensation payments, On March 12, 1998, the neutral arbitrator, Kinard Lang, issued an award to the effect that "the Police Pension Plan shall be amended retroactively to January I, 1996 to allow police officers to retire at fifty-four and a half - percent (54.5%) of monthly average compensation." (Award, p, 2) It is from this uward that the Commission now appeals, The Police Association argues that Act 600's fifty percent limit is not applicable in the present case becuuse, prior to May 10, 1996, regional police departments were not specifically 2 ~~ "\ ,... 98.1994 CIVIL inoluded in the Act. In support of its position, the Associutioll cites .Qmough of LewiS~!.1VJLY, Pennsylvunla Lubor..Eel!l.tions)10!!!fh.735 A,2d 1240 (Pu, 1(99), The Ass6ciation relies on L<zwistown for the pl'Oposition that regional police departments can be awurded pension pluns beyond the limits of Act 600, The cuse, however, does not stuncl for that proposition, In J.,ewistowl!, a regionuI police department and police association were unable to ugree to terms on a new labor agreement. An arbitration panel hud awarded u pension plun providing regional police department officers with a retirement benefit of seventy percent of their finul average salary, Importantly, the arbitration panel's award was not appealed, Nonetheless, the borough, believing that the award wus a violation of Act 600, refused to distribute pension funds in accordunce with the arbitration award, The association filed an unfair lubor practice action, In the end, the Supreme Court upheld the arbitrator's award of seventy percent, not because it was lawful but because the borough had failed to appeal the award and therefore "waived its light to raise the legality of the arbitration award," Id, at 1246, The question, then, remains whether Act 600 applied to regional police departments prior to their specific inclusion in the May 10, 1996 amendment. The Association contends that vacating the arbitrator's award in the instunt case would apply legislation to a contract in effect prior to its enactment und would be the equivalent ofun ex post/acto law in violation of the Pennsylvunia and United States Constitutions, As noted in Lewistown, however, the municipalities forming regional police departments delegate to the regional police department the power to hire, discharge and discipline, and to fix salaries, wuges and benefits, !fI~ at 1244. We are sutisfied that the forming llllmicipalities should be viewed as joint employers for the 3 ~7 ~:.. ...:J c:r; G I~:t. .. , ('.. (-, ~' '';}o<:r :'1' :~~':!;:~ , 1._, t~) ,:~_) ,~t I .':',.:. '; - r'l) I !~di~ 1- , , c. ;'i!r.LI I (.,,: .-';_', l. 1.'\,10 (j . ~-J _5 ('0') (.) "- \'...1 ~~, (' ;.w....! 11""<., -'lij..:. Commonwealth Court of Pennsylvania October 17, 2003 RE: W, ~~S1!~J~,eQPol Dept Comm v, Emp of W Shore Reg No,\'!'~3"OD'2003 AgencY Docket Number: ,ga.19i4ClvUT.m'l Flle~ lJato: October 9, 2003 Notice of Docketing Appeal A Notice of Appeal from an order of your court has been docketed In the Commonwealth Court of Pel1l1sylvanla, The Commonwealth Court docket number must be on all correspondence and documents flied with the court, Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of ,64}peal has the effect of directing the Court to transmit the certified record In the matter to the Prothonotary of the Commonwealth Court, The complete record, Including the opinion of the trial judge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record, Pa,R.A,P, 1921 to 1933 provides the standards for preparation, certification and transmission of the record, The address to which the Court Is to transmit the record Is set forth on Page 2 of this notice, Notice to Counsel A copy of this notice Is being sent to all parties or their counsel Indicated on the proof of sarvlce accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record In the Commonwealth Court, Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa, RAP, 907 (b), Appellant or Appellant's attorney should review the record of the trial court, In order to Insure that it Is complete, prior to certification to this Court (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases), The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice, If you have special needs, please contact this court In writing as soon as possible, Attorney Name David J, Lanza, Esq, Sean T, Welby, Esq, Party Name Party Type West Shore Regional Police Department Appellee Employees of the West Shore Regional Appellant lJ,. Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Petitioner WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Pe!itioner V. EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, ReSpondent Ih,[ THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. ,1998 CIVIL ACTION - LAW TO THE DEFENDANT: N TO DEN ! You have been su~d in court. If you wish to defend against the claims set forth in the following pages, you must take action withln twenty (20) days after this complaint and notice are served, by entering a,written appearance personally o~ by attorney and filing in writing with the court your defense or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be enterelf against you by the court without further notice for any money claimed in the complaint or for any otherlclaim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Petitioner WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Pe itioner V. EMPLOYESS OF WES'I SHORE REGIONAL POLICE DEPARTMENT, ! ReSpondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 98-/~'?~ CIVIL TERM CIVIL ACTION - LAW PETITION FOR REVIF:W_ AND NOW, come~ the West Shore Regional Police Commission, ("Commission") by and through its attorneys, Johnson, Duffle,~lStewart & Weidner, and files the within Petition for Review from an Act 111 (43 P.S. {}217.1, et seq.) Interest Arb!tration Panel, pursuant to §933(b) of the Judicial Code, 42 Pa. C.S.A. §933(b), as follows: 1. Petitioner, West Shore Regional Police Commission, is a Police Commission formed by mutual agreement of the Boroughs] of Lemoyne and Wormleysburg, Cumberland County, Pennsylvania, with its principal address at 301 Market Street, Lemoyne, PA 17043. 2. Respondent,[ West Shore Regional Police ("Police"), is an unincorporated association recognized as the exclusive representative ~or purposes of collective bargaining pursuant to Act 111. 3. The Police 1, 1996 and were able to rea by the Police. nd the Commission entered into negotiations in 1995 for a contract to commence January :h agreement on all issues with the exception of certain pension improvements demanded 4. The pension improvements demanded by the Police and submitted to the Act 111 Interest Arbitration Panel were related to proposed increases in the monthly average compensation beyond the limits permitted by 53 P.S. §771 ("Act 600"). 5. On March 12, 1998, the Neutral Arbitrator, Kinnard Lang, issued an award (a copy of which is attached hereto as Exhibit "A"), which amended the police pension plan to allow police officers to retire at 54.5% of monthly average compensation. 6. The Arbitr!tor's award constitutes clear legal error and should be set aside as it awards pension benefits in excess of those ~ermitted by applicable law, including Act 600, 53 P.S. §771. / WHEREFORE, P~titioner, West Shore Regional Police Commission, respectfully requests this HOnorable Court to enter an order: (1) VaCating and setting aside the Arbitrator's determination with respect to pension imtJrovements; (2) alle (3) gra~ DATE: 010016-13/108305 ~ving police officers to retire at no more thart 50% of monthly average compensation; and tting such other relief as this Court deems just and appropriate. Respectfully submitted, Johnson, Duffle, Stewart & Weidner By: ~ Jerry R. Duffle Attorney I.D. #09601 David J. Lanza Attorney I.D. #55782 IN THE MATTER OF THE ARBITRATION BETWEEN ~WEST SHORE REGIONAL POLICE COMMISSION ~ and - .~ AMERICAN ARBITRAT] West Shore Re~ ional Police Commission - Jerry R. West Shore Reglona~ Police Association - Gary M. HEARING DATE: SeptJember 11' 1997 HEARING LOCATION: POST HEARING SUBM :T SHORE REGIONAL POLICE AGSOC.IATION~ ON ASSOCIATION Case No. 14 L 360 0~384 9S W ACT 111 ARBITRATION PANEL Neutral Chairman - Klnard Lang Duffle, Esq. Llghtman, Esq. Lemoyne, Pennsylvania SSIONS: October lO; December 1, 17. and 30, 1997 ISSUE: What shall ~e the provlsl°ns~of ArtlCl~lO.OS,'~Ret~remeEt,: In the parties' Janua Bargaining Agreeme ry 1, 1996 - December 31, 1998 Collective nt? EXHIBIT 'A" As the result of the parties' ongoing negotiations; concluded Immediately preceding the Act 111 hearing scheduled for February 29. 1996, an Agreement was reached resolving all the Issues In dispute, except "Article 10.08 Retirement"'. The Act I~ll panel retained Jurisdiction over that open and disputed issue, and on September 11, 1997 It reconvened to hear the parties' respective arguments on the retirement issue. POSITIONS OF THE ~ARTIES West Shore Reolonal Police Association Based on Its Analysis of the limited data supplied by the Police Commission, the ASsociation asserts that, while both a reduced superannuation age. and an Increased retirement benefit, may be Possible without impairing the actuarial soundness of the pension fund, It requests only the Improvement that would benefit all members: a fifty-fight percent (58%) retirement benefit. West Shore Reoion~l Police Commlsslgn The pension f~nd has adhered to sound and conservative Investment policies and actuarial assumptions. Based on projected earnings of sevenland half percent (7.5%) per annum, annual State Aid of approximately $44,000.00, and avoidance of an Increased retirement benefit any pension 6enef] compares favorabl and benefits, Obllg~loH~'%h-e-'pr'6~n'k fifty percent (50%) Is actuarlally sound; there Is no need to Improve t because West Shore's total compensation package to what local police officers receive In wages My review of the parties' settlement of tine other Issues In dispute; revealed through comparison of their present and prior Collective Bargaining Agreements, convinces me that the Association has made reasonable gains. However. the elvldence and arguments produ,:ed In this proceeding; especially the tesitlmony and exhibit produced by the Association's actuary, leave no ~oubt that an Increase In the bargaining unit's retirement benefltlmay be achieved without Impairing the actuarial soundness of the p~nslon fund. However, there Is no basis In the record for an Increase of eight percent (8~), hence, the following Award. In accordance With the provisions of Artlc:le X, Section 10.08 of the Collective Bargaining Agreement covering ~he period of January 1, 1996 through Debember 31, 1998; specifically acknowledging retirement as an u~resolved "open" Issue, the police pension plan shall be amended r~troactlve]y to January 1, :[996 to allow police officers to retlreiat fifty-four and a half percent (54,5%) of monthly average co~pensatlon.~ In recognition! of the fact' that no one fia~i [etlr~lng~fi~'-t-h-~ .... ' intervening time p~rlod, the funding of this amendment; Including the minimum employee contribution required by law and/or actuarial soundness, shall 1998. b~gln with the plan year commencing January The members ofI the Act 111 Arbitration Panel signify there assent to, or dissent from, the Award on page 2 herein, as follows: Klnard Lana. Neutral Chal Gary M. Liahtman. gsa. Jerry R. Duffle. <ssent - 3 - VERIFIC.4 TION i, William P. Cornell, the undersigned, hereby certify that the statements contained herein are true and correct to the best of my knowledge, information and belief. This verification is made pursuant to the provisions of 18 Pa.C.S.A. §4904. William A. Cornell, President Wormleysburg Borough Council Date: CER TIFIC.4 TE OF SER VICE I, David J. Lanza, Esquire, do hereby certify that I have this /~V~day of April, 1998, served a true and correct copy of the foregoing document, Petition for Review, upon the person and in the manner indicated below, which services satisfies the eequirements of Pa. R.A.P. 121. Service By First Class Mail. Postage Prepaid, Addressed as Follows: Gary M. Lightman, Esquire 2705 N. Front Street Harrisburg, PA 17110 David J. Lanza Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Slrcet P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Petitioner 1998 WEST SHORE REGIONAL POLICE DEPARTMENT COMMIS[SlON, Pe!itioner v. i EMPLOYESS OF WES'~ SHORE REGIONAL POLICE DEPARTMENT, i Re~;pondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 98- /q¢)~, CIVILTERM CIVIL ACTION - LAW AND NOW, this _~ day of ~, 1998, it is hereby Ordered that the Arbitration Award of March 12, 1908 (No. 14 L 360 01384 95 W) is hereby vacated and set aside solely with respect to pension imp+vement issues. Police officers may retire at no more than 50% of monthly average compensationpursuant to the terms of 53 P.S. §7711. BY t*r'tE COURT: /109139 WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, pETITIONER EMPLOYEES OF WI REGIONAL POLICi~ RESPC SHORE )EPARTMENT, DENT ORDER IN ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98 - 1994 CIVIL TERM CIVIL ACFION LAW AND NOW, tbJ ~ day o 98, it appem'ing that the Order entered in this proceeding on April 16, 1998, was premature,~ is hereby ORDERED, A] and the parties are direc )JUDGED and DECREED that said Order of April 16, 1998 is hereby vacated Ied to proceed with this action in accordance with Pa.R.C.P. No. 206, et. se__q. By 'the Court: WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, PETITIDNER EMPLOYEES OF WI REGIONAL POLIC~ RESPC AND NOW coJ and moves Your Honox following reasons: 1. This Review of an Act 111 2. Despite ~ST SHORE DEPARTMENT, NDENT IN ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98 -1994 CIVIL TERM CIVIL ACTION LAW RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER aes the Respondent, Employees of West Shore Regional Police Department, able Court to reconsider and vacate its Order of April 16, 1998, for the ion, was commenced on or about April 7, 1998, by the filing of a Petition for tterest arbitration award. the fact that the aforesaid Petition was not filed as an uncontested matter, the Petitioner, West Shore ~.egiomal Police Department Commission, did not prepare and file a Proposed Order in the mature of a Rule to Show Cause, as required by Local Rule 206-3. 3. Pursua~ t to Pa.R.C.P. No. 1026 and Local Rule 208-1, the Respondent had twenty (20) days to respond, a~er service. 4. ThePe' ion was mailed to Respondent's counsel o:a April S, 1998, and received on April 10, 1998. 5. On April 14, 1998, the Petitioner filed two (2) copies of a Proposed Final Order, and mailed one to Respondent's counsel. The mailed copy was sent to the wrong address, however, and not received until April 24, 1998, as evidenced by the attached copies of the letter and envelope, marked Exhibits 1 and 2. 6. On April 16, 1998, this Honorable Court (Edgar B. Bayley for George E. Heifer, l.), signed the Proposed Final Order, and vacated the arbitration award. 7. By even date herewith, the Respondent has filed its Answer to the Petition for Review, in accordance with the Rules of Court. ! WHEREFORE. of April 16, 1998, andt, Dated: Apdl~, 1998 the Respondent respectfully prays Your Honorable Court to vacate its Order direct this case to proceed in accordance with Pa.R.C.P. No. 206, et. Seq. Respectfully submitted: sL. Mc~ Attorney I.D. #22259 LIGHTMAN & WELBY 2705 N. Front St. Harrisburg, Pa. 17110 (717) 234-0111 Attorney for Respondent, Employees of the West Shore Regional Police Department 2 APR ;~ 4 19~3 LAW OFFICES JOHNSON, DUFFLE, STEWART WEIDNER A Professional Corporation 301 MARKET STREET P. 0. BOX 109 LEMOYNE, PENNSYLVANIA 17043-0109 TELEPHONE 717-761-4540 FAGSIMILE 717-761-3015 E-MAIL mail~ jdsw. com April 14, 1998 Curt Long, Prothonotary Cumberland County Cgurt of Common Pleas I Courthouse Square ! Carlisle, PA 17013-3987 Re: West Sltore Reaional Police Department Commission v. Employees of West Shore Regional-Police Department Commissio_n_n OF COUNSEL Dear Curt: Enclosed is al (reference the attache along with postage F enclosed copy of the F Thank you for ~. DJ L:bmr:10016-3/10917; Enclosures cc: Gary M. Lightn West Shore ~ original and two (2) copies of a proposed Order per your request d original of my previous correspondence to you, dated April 7, 1998), repaid, addressed envelopes. Please, return to the undersigned the etition for Review with a docket number. 'our attention to this matter. Very truly yours, JOHNSON, DUFFLE, STEWART & WEIDNER David J. Lanza ,an, Esquire gional Police Department Commission ~ 0 CERTIFICATE OF SERVICE I, James L. McAneny, Esquire, hereby do certify that on thais 28th day of April, 1998, I served the foregoing Respondent's Motion to Reconsider and Vacate Order, in the manner indicated below, upon the following: SENT VIA U.S. MAI Lawrence E. Welker, Court of Common Pk Courthouse, One Cour 9th Judicial District Carlisle, Pa. 17013 SENT VIA U.S. MAI FIRST CLASS, POSTAGE PREPAH) FOR FIIJNG rothonotary s of Cumberland County house Square FIRST CLASS, POSTAGE PREPAH)_ David J. Lanza, Esquir, JOHNSON, DUFFIE, 301 Market St. P.O. Box 109 Lemoyne, Pa. 17043-( ]TEWART & WEIDNER 109 Attome~y~Lg~[22259 LIGltl~AN & WELBY 2705 N. Front St. Harrisburg Pa. 17110 (717) 234-0111 WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, PETITIONER EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, RESPONDENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98 - 1994 CIVIL TERM CIVIL ACTION LAW ANSWER TO PETITION FOR REVIEW AND NOW co~nes the Respondent, Employees of West Shore Regional Police Department, and Answer the Petitiort of the West Shore Regional Police Department Commission as follows: 1. Admitted. 2. Admittad. 3. Admitt6d. 4. Admitted in part and denied in part. It is admitted that the Police requested superannuation retirement benefits in excess offifiy (50%) percent offinal average monthly salary. It is denied that Act 600 prdhibited such benefits in regional police departments as of January 1, 1995. 5. Admitted. 6. Denied ~s stated. Legal error is not a ground for reversal of an Act 11 arbitration award. Judicial review hereof is subject to the narrow certiorari scope of review. WHEREFORE, the Respondent respectfully prays Your Honorable Court to enter an Order denying the Petition of the Commission. Respectfully submitted: Dated: April Ag, 19981 ~-ames L~ M~-fi~y, Esquire Attorney I.D. #22259 LIGltTMAN & WELBY 2705 N. Front St. Harrisburg, Pa. 17110 (717) 234-0111 Attorney for Respondent, Employees of the West Shore Regional Police Department VERIFICATION I, Lon Strayer, hergby verify that the statanents ma& in tho foregoing amended pleading are tree and correct. I understand that ~alse statem~ts herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unswom falsification to iauthorilies. Date CERTIlqlCATE OF SERVICE I, James L. McAneny, Esquire, hereby do certify that on this 28th day of April, 1998, I served the foregoing Respondent's Answer to Petition for Review with Verification, in the manner indicated below, upon the followiflg: SENT VIA U.S. MAI~ FIRST CLASS~ POSTAGE PREPAID FOR FILING Lawrence E. Welker, Plothonotary Court of Common Plea~ of Cumberland County Courthouse, One Courthouse Square 9th Judicial District Carlisle, Pa. 17013 SENT VIA U.S. MAI ~ FIRST CLASS~ POSTAGE PREPAID David J. Lanza, Esquk~ JOHNSON, DUFFIE, ~TEWART & WEIDNER 301 Market St. P.O. Box 109 Lemoyne, Pa. 17043-(~109 ~JJames L. Mc~e~/I'~~ Attoraeyt:D~. ~f22259 LIGHTMAN & WELBY 2705 N. From St. Harrisburg, Pa. 17110 (717) 234-0111 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Petitioner WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Respondent IN THE COURT OF COMMON PLEAS OF CUIVIBERLAND COUNTY, PENNSYLVANIA NO. 98-1994 CIVIL TERM CIVIL ACTION - LAW ANSWER TO RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER 1. Admitted. 2. Admitted ~ part. Denied in part. It is denied that this action is governed by Rule 206-3. By way of further denial,:~ Petitioner prepared a proposed order as requested by the Prothonotary after Petitioner had initially subh3itted the Petition and Notice to Plead without any proposed order. It is admitted that Petitioner did not prel~are or file a Rule to Show Cause. 3. Denied. This averment is denied as a conclusion o'[ law. 4. Admitted. 5. Admitted Jn part. Denied in part. The document mailed by Petitioner was not labeled "Proposed Final Order." iPetitioner sent the aforesaid Order pursuant to the request of the Prothonotary after Petitioner filed its Pe~ition accompanied with a Notice to Plead. 6. Admitted i~ part. Denied in part. It is admitted that this Honorable Court signed an Order, dated April 16, 1998. By v~ay of denial, this Order was not labeled "Proposed Final Order." IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Respondent No. 98-1994 CIVIL TERM CIVIL ACTION AT LAW I t. ORDER And NOW, this day of , _, upon consideration of the foregoing petitiorg it is hereby ordered that (1) a nde is issued upon the Petitioner to show why judgment non pros should not be entered against Petitioner; (2) wh~re Respo,ndent has submitted an answer that raises no disputed issues of material fact to Petitioner s Petition for Review dated April 7, 1998, the petition shall be decided under Pa. R.C.P. No. 206.7(b); (3) wh~re this matter can be properly dismissed pursuant to Pa. R.J.A. 1901(c); i (4) Petitioner shall file a briefs. ~~~, ~,inthe Cumberland Coumy Court of Common Plet~s, Pennsylvania. (4) ReSpondent shall file a brief in the Cumberl~md County Court of Common Plea~, Pelmsylvanta, thirty (30) days after service of Petitioner's brief. (5) petitioner. not ce of the entry of this order shall be provided to all parties by the BY THE COURT FiLED--OFFC~ OF T!¥'i 02 NOV 26 AH 10:30 CUM~EF, b-~,~D COUNTY PENNSYLVANIA ¥tNVA'IXSNN]d X.I.Nrl¢O 6U :g 1,4d L~ AON IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner EMPLOYEES O~ WEST SHORE REGIONAL POLICE DEPARTMENT, Respondent No. 98-1994 CIVIL TERM CIVIL ACTION AT LAW PETITION FOR JUDGMENT OF NON PROS Respondent, Employees of West Shore Regional Police Department, by the undersigned cotm~el, David B. Washington, Lightman & Welby, respectfully petitions this Court pursuam to Pa. R.J.A. 1901(c) and Cumberland County Rules of Court 228, for the entry of judgment of non pros against Petitioner, West Shore Regional Police Department Commission, and in support avers the following: 1. Thig civil action was commenced on April 7, 1998, when Petitioner filed a Petition for Reviep of an Arbitration Award dated March 12, 1998. 2. Petitioner initially failed to provide the proposed Order required by Court Rule 206-3, but w~s eventually filed on April 14, 2002. 3. On April 16, 1998, this Honorable Court issued an Order vacating a part of the Arbitration Award regarding pension benefits. 4. ResPondent filed a Motion for Reconsideration and an Answer to the Petition on April 30, 1998. 5. On decreed the April accordance with P; 6. Ho~ Petitioner has file motions, or taken Additionally, Petit necessary in the pr May 7, 1998, the Court issued an Order that ordered, adjudged and 16, 1998 Order to be vacated, and that the parties proceed in t. R.C.P. No. 206. lever, in a period of over four years since the Order of May 7, 1998, fl no revised proposed order, has filed no additional pleadings or my further action that would require a response from the Respondent. oner has had over four years to file a brief, which was the only action ;sent matter. 7. In an appeal from an Arbitration Award made pursuant to Act 11 I, this Honorable Court's scope of review is one of narrow certiorari, and restricts the reviewing Court to questions concerning (1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator's powers; and (4) deprivation of constitutional rights. Washington Arbitration Case, 436 Pa. 168, 259 A. 2d 437 (1969). 8. Petitioner's appeal is based on only one contention, that the Arbitrator's Award constituted a legal error. However, given the narrow certiorari scope of review, such a contention Is clearly not a ground for reversal under .Act 111. 9. Since May 7, 1998, Petitioner has not submitted any argument or brief to support its contention. 10 On !September 16, 2002, this Honorable Court properly notified the parties and listed the abo~e captioned matter to be purged on October 22, 2002. 11. OctCber 11, 2002, Petitioner sent a letter requesting that an Order be issued removing lhe above captioned matter from this Honorable Court's purge list. Petitioner conten~, without support, that additional case and statutory authority have been clarified in ti:: past four years which are in some way relevant to this matter. 12. In ~ ccordance with Pa. R.J.A 1901 (c) and C~nnberland County Court Rule 228, a matter is 3roperly ordered to be terminated on the grounds of unreasonable inactivity and whe re the docket of the matter shows no evidence of activity during the previous two years 13. ReSpondent submits that in the past four years no activity has taken place, and that such inactivity has been grossly unreasonable. ~Une scope of review has not changed and there lare no case or statutory authorities that ihave been clarified that allow reversal of an arbiffator's award for legal error. 14. Peti relevant to this ma brief with this Hor for their failure to Court from not stri 15. Peti Court, but has alsc a provision of an ,4 5oner has provided no indication ~vhat authorities they contend are tter. If such authority did exist, all Petitioner needed to do was file a orable Court. Petitioner's objection provides no special circumstances ~roceed nor has it provided reasons that should compel this Honorable ring this case for Petitioner's failure to prosecute. :ioner's delay has not only burdened the Docket of this Honorable severely prejudiced Respondent by preventing the implementation of ward bargained for in earnest. 16. After over four years of abject inactivity, it is clear that Petitioner's request for an Order removing the present case is disingenu.ous. Petitioner's actions only suggest that it has used this delay of prosecution to avoid meeting a contractually bargained for obligation to its employees. 17. Petitioner's letter of October i 1, 2002, provides no information that would suggest that there has been any activity in the last two yea:rs. Consequently, pursuant to Rules 1901(c) and 228, this Honorable Court should purge the case on October 22, 2002. 18. Respondent submits that the case be purged where Petitioner has had ample time and opportunity to prosecute the present matter, that Petitioner's delay has been unreasonable[ and that such delay necessitates the dismissal of this matter pursuant to Rules 1901(c) mad 228. WHEREFORE, Respondent, Employees of West Shore Regional Police Department, requ{sts the Honorable Court to grant a rule upon Petitioner, West Shore Regional Police Department Commission, to show cause why judgment non pros should not be entered. Respectfully submitted, LIGHTMAN & WELBY Sear)/~. Welb~,-fEsquire Dafiid B. Washington, Esquire Supreme Court I.D. No. 66237 2705 North Front Street Harrisburg, PA 17110 (717) 234-0111 Attorneys for Respondent CERTIFICATE OF SERVICE I, David B. Washington, Esquire, hereby certify that on this 21st day of October, 2002, I served a tree and correct copy of the foregoing Petition for Judgment of Non Pros by First Class Mail, Postage Prepaid, upon the following person(s): David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box ll09 Lemoyne, PA 17043-0109 Attorneys for West Shore Regional Police Department Commission LIGHTMAN & WELBY By \ ~',fi'?-)r t~. {~k.,~[9~, S~anA T. Welby, Esquire { /David B. Washington, Esquire Attorney I.D. No. 63227 2705 North Front Street Harrisburg, PA 17110 (717) 234-0111 Attorney for Respondent VERIFICATION I, David B. Waskington, Esquire, attorney for the Employees of West Shore Regional Police Department named in this action, do hereby verify to the best of my knowledge, information and belief, the facts averred and the statements made in the foregoing Petitiod for Judgment of Non Pros are true and correct. I understand that false statements or averments therein made will subject me to the criminal penalties of 18 Pa. C.S. ! Section 4904 relating to unswom falsification to authorities. Dated: October 21 2002 SeanT.~elby. Esquire ~ David B. Washington, Esquire WEST SHORE REGIONAL : IN THE COURT OF COMMON PLEAS OF POLICE DEPARTMENT : CUMBERLAND COUNTY, PENNSYLVANIA COMMISSION, : Plaintiff : : v. : CIVIL ACTION - LAW : EMPLOYEES OF WEST SHORE : REGIONAL POLICE DEPT., : Defendants : No. 98-1994 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of October, 2002, upon consideration of a letter from David J. Lanza, Esquire, dn behalf of Plaintiff objecting to a purge of this case,~ and without objection presented in open court from any ~arty, the case is stricken from the purge list. /Jerry R. ~uffie, Esquire David Lan~a, Esquire For the Pliaintiff /James L. McAneny, Esquire For the D~fendants Court Admlinl st rator By the Court, ~/w~s~ley Ol~-~j~. ,c j~ Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lcmoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Petitioner WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Pelitioner EMPLOYEES OF WEST ~3HORE REGIONAL POLICE DEPARTMENT, i ReSpondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-1994 CIVIL ACTION - LAW ANSWER O 1. Admitted. 2. Denied. required by any rule of 2002, West Shore Regio~ 3. Admitted. 4. Admitted. 5. Admitted 6. Denied. intervening period. West the existence of additi Honorable Judge Wesle 2002. A true and corre, WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS is denied that West Shore Regional Police failed to provide any document,or item ourt. By way of further denial to the extent that any document was filed ,in April ~al Police is unaware of such filing. ~n Part. Denied in Part. The Order of May 7, 1998 speaks for itself. r'here have been legal developments which clarify the issues of this case in the Shore Regional Police Department Commission has previously notified the court of ~al legal precedent and its objection to termination. This Court, through the Oler, has entered an Order removing this case from the "purge" list on October 22, copy of the aforesaid Order is attached hereto as Exhibit A. 7. Denied. As a conclusion of law. 8. Denied. As a conclusion of law. By way of further denial, the Arbitrator's award exceeded the Arbitrator's powers Under clear statutory authority, especially as has been clarified by a subsequent decision of the Pennsylvania Supreme Court. Brief, the Employees hav Non Pros. Admitted in Part. Denied in Part. While West Shore Regional Police have not submitted a 9 not been prejudiced thereby. Prejudice is an essential element for a Judgment of 10. Admitted. 11. Admittedln Part. Denied in Part. It is admitted that Petitioner West Shore Regional Police Commission sent the af(~resaid letter. By way of denial, additional case authority exists which clarify the existing statutory authority/. 12. Denied. ,s a legal conclusion. An Order contraq/to Employees' position has already been entered by this Court on Dctober 22, 2002. By way of further denial, any such dismissal requires an actual showing of prejudice by ti le parties seeking dismissal. Employees can show and have shown no prejudice. 13. Denied. .egal authority has been clarified during the intervening time since the initiation of this action. By way of Jrther denial, the Arbitrator's award prevides more than mere "legal erro¢." The Arbitrator exceeded his p~wers under the statute as clarified by in'lervening legal authority. By way of further denial, Employees can st~ow and have shown no prejudice resulting from any delay. 14. Denied. it is Employees' burden to demonstratE; actual prejudice. West Shore Regional Police does not bear th~ burden of showing "special circumstances." By way of further denial, a Brief , updating this Court on th law and on the Arbitrator's initial award exceeding the Arbitrator's authority and powers is forthcoming. 15. Denied. I1 been prejudice. It is der provisions on which the is denied that the docket of this Court has been burdened or that Employees have led that the award had been prevented from being implemented in any wa~¥. The Arbitrator exceeded his powers have not affected any current employee~. The disputed provisions of the Arbitrator's award affect only the pension benefits. The remaining provisions of the award have been implemented. WHEREFORE, Petitioner West Shore Regional Police Department Commission respectfully requests that this Honorable Court enter an Order dismissing the Petition of Employees of West Shore Regional Police Department for Judgment of Non Pros. Respectfully submitted, Johnson, Duffi~j, Stewart & Weidner By: v / "'~. ~/~ David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoylne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Petitioner :165725 10016-3 CERTIFICATE OF SERVICE AND NOW, this q-~"" day of December, 2002, the undersigned does hereby certify that he did this date serve a copy of the foregoing ANSWER upon the parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Sean Welby David Washington 2705 N. Front Street Harrisburg, PA 17110 JOHNSON, DUFFLE, STEWART & WEIDNER David J. Lanza WEST SHORE REGIONAL : IN THE COURT OF COMMON PLEAS OF POLICE DEPARTMENT : CUMBERLAN]D COUNTY, PENNSYLVANIA COMMISSION, : Plaintiff : v. : CIVIL ACTION - LAW : EMPLOYEES OF WEST SHORE : REGIONAL POLICE DEPT., : Defendants : No. 98-1994 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of October, 2002, upon consideration of a letter from David J. Lanza, Esquire, o~ behalf of Plaintiff objecting to a purge of this case, land without objection presented in open court from any p~.rty, the case is stricken from the purge list. By the Court, ffie, Esquire , Esquire intiff Aneny, Esquire endants istrator Jerry R. D% David Lanz~ For the Pls James L. MC For the Del Court Admi~ wcy IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner EMPLOYEES OI REGIONAL POL : WEST SHORE ICE DEPARTMENT, Respondent ' No. 98-1994 CIVIL TERM CIVIL ,ACTION AT LAW I.. ~QRDER. And NOV~ this day of 2003, upon consideration of the foregoing petitio!, it is hereby ordered that: (1) a r~le is issued upon the Petitioner to sho,w why judgment non prc~ should not De enlereo against Petitioner; (2) Pelitioner shall file a brief on ~L~0,~L~~"' ~1~, n the Cumberland County Court of Common Pleas, Pennsylvania; (3) ReSpondent shall file a brief in the Cumberland County Cou~ of Common Pleas, ~Pennsylvania, thirty (30) days after service of Petitioner's brief; / (4) Nolice of the entry of this order shall be provided to all parties by BY THE COURT the petitioner. Gary M. Lightman Sean T. Welby Eric C. Stoltenberg Anthony M. Caputo David B. Washington Ian J. Blynn LIGHTMAN & WELBY ATTORNEYS AT LAW 2705 North Front Street P.O. Box 911 Harrisburg, PA 17108-0911 Telephone 717-234-0111 Fax 717~234-8964 March 3, 2003 Pittsburgh Office 220 Grant Street, 6th Floor Pittsburgh, PA 15219 Telephone 412-562-0111 Fax 412-562-0675 The Honorable Ge Cumberland Coun 1 Courthouse Sqm Carlisle, PA 1701! Re: W{ En~ DO, >rge E. Hoffer :y Court of Common Pleas re -3387 st Shore Regional Police Department Commission v. ployees of West Shore Regional Police Department :ket No. 98-1994 Dear Judge Hoffer! Enclosed l~lease find an order establishing a briefing schedule as requested by your office on h~arch 3, 2003. A copy will also be :Forwarded to counsel for the Petitioner. Should you have any questions, please feel free to contact me. Thank you for your cooperation. Very truly yours, DBW/las Enclosure cc: David J. L4mza, Esquire Tim Rine / Bernie Dulan Gary M. Lightman Sean T. Welby Eric C. Stoltenberg Anthony M. Caputo David B. Washington lan J. Blynn 2705 North Front Street P.O. Box 911 Harrisburg, PA 17108-0911 Telephone 717-234-0111 Fax 717-234-8964 Pittsburgh Office 220 Grant Street, 6th Floor Pittsburgh, PA 15219 Telephone 412-562-0111 Fax 412-562-0675 Jayne A. Miller, D Cumberland Coun 1 Courthouse Sqm Carlisle, PA 1701! Re: We Em No, Dear Ms Miller: Please acc Regional Police D On Noverr of Cumberland C February26,2003 :puty Prothonotary y Court of Common Pleas re -3387 ,t Shore Regional Police Department Commission v. ployees of West Shore Regional Police Department Commission 98-1994 Civil ~pt this letter on behalf of Respondent, Employees of West Shore :partment. ber 26, 2002, Judge George E. Hoffer of the Court of Common Pleas )unty issued an Order that required Petitioner, West Shore Regional Police Department Commission, to show cause why judgment non pros should not be entered against P~titioner and to file a brief with the Court "when requested". On December 23, 2092, Petitioner filed an answer to Respondent's Petition for Judgment Non Pros, indicating that a brief was forthcoming. As of yet, no brief has been filed. Respondent requests that the Court set a briefing schedule in this matter, so that the case may proceed tow~ds resolution. Please find enclosed a copy of the November 26, 2002 Order. Jayne A. Miller, Deputy Prothonotary February 27, 2003 Page 2 Should you require further information, please advise at your earliest opportunity. Thank you for your cooperation. Very truly yours, DBW/las Enclosure cc~ David J. L4nza, Esquire Tim Rine / Bernie Dulan IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner OF ~ST SHO~ EMPLOYEES REGIONAL POEICE DEPARTMENT, Respondent No. 98-1994 CIVIL TE~ CI~L ACTION AT LAW And blOW foregoing petition, (1) art not be entered aga (2) wh, of material fact to be decided under (3) 1901 (e); ORDER this ~ 6,~ day of 2']~. , ~ upon consideration of the it is hereby ordered that le is issued upon the Petitioner to show why judgment non pros should nst Petitioner; :re Respondent has submitted an answer lhat raises no disputed issues ?etitioner's Petition for Review dated April 7, 1998, the petition shall 'a. R.C.P. No. 206.7(b); wh}re this matter can be properly dismissed pursuant to Pa. R.J.A. / (4) Petitioner shall file a brief on ~ ~n the Cumberland County Court of Conunon Pleas, Pennsylvania. (4) Respondent shall file a brief in the Cumberlax~d County Court of Common Pleas, Permsylvan~a, thirty (30) days after service of Petitioner's brief. (5) notice of the entry of this order shall be provided to all parties by the petitioner. BY THECOE~T r~:{~IE co~Y FROM FIECOP, D In T~-~.~y wher~ef, I here unto se~ my ~ho~ Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attomeys for Petitioner WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN'YY, PENNSYLVANIA NO. 98-1994 EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, CIVIL ACTION - LAW ReSpondent ANSWER O1~ WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS 1. Admitted. 2. Denied. Itl is denied that West Shore Regional Police failed to provide any document Dr item required by any rule of cCurt. By way of further denial to the extent that any document was filed in April 2002, West Shore Regional Police is unaware of such filing. 3. Admttted. 4. Admitted. 5. Admitted ~n part., Denied in Part. The Orderof May 7, 1998 speaks for itself. 6. Denied· '['here have been legal developments which clarify the issues of this case! in the intervening period. West Shore Regional Police Department Commission has previously notified the 6ourt of the existence of additior~al legal precedent and its objection to termination. This Court, through the Honorable Judge Wesley Diet, has entered an Order removing this case from the "purge" list on October 22, 2002. A true and correct, :opy of the aforesaid Order is attached hereto as Exhibit A. 7. Denied. As a conclusion of law. 8. Denied. As a conclusion of law. By way of further denial, the Arbitrator's award exceeded the Arbitrator's powers under clear statutory authority, especially as has been clarified by a subsequent decision of the Pennsylvania Supreme Court. 9. Admitted in Part. Denied in Part. While West Shore Regional Police have not submitted a Brief, the Employees have not been prejudiced thereby. PrejudicE.= is an essential element for a Judgh3ent of Non Pros. 10. Admitted. 11. Admitted ~n Part. Denied in Part. It is admitted that Petitioner West Shore Regional Police Commission sent the afdresaid letter. By way of denial, additional case authority exists which clarify the existing statutory authori~. 12. entered by this Court on showing of prejudice by ti Denied. /~s a legal conclusion. An Order contrary to Employees' position has already been :)ctober 22, 2002. By way of further denial, any such dismissal requires an actual ~e parties seeking dismissal. Employees can show and have shown no prejadice. 13. Denied. this action. By way of f= Arbitrator exceeded his p~ denial, Employees can sh egal authority has been clarified during the intervening time since the initiation of Jrther denial, the Arbitrator's award provides more than mere "legal error;" The ~wers under the statute as clarified by intervening legal authority. By way of further 3w and have shown no prejudice resulting from any delay. 14. Denied. I[ is Employees' burden to demonstrate actual prejudice. West Shore Regional Police does not bear th~/ burden of showing "special circumstances." By way of further denial, a Brief updating this Court on th~ law and on the Arbitrator's initial award exceeding the Arbitrator's authority and 3owers is forthcoming. ~ 15. Denied. It been prejudice. It is deni ~rovisions on which the is denied that the docket of this Court has been burdened or that EmployeeS have 9d that the award had been prevented from being implemented in any way. The ~,rbitrator exceeded his powers have not affected any current employees. The disputed provisions of the Arbitrator's award affect only the pension benefits. The remaining provisions of the award have been implemented. WHEREFORE, Petitioner West Shore Regional Police Department Commission respectfully requests that this Honorable Court enter an Order dismissing the Petition of Employees of West Shore Regional Police Department for Judgment of Non Pros. Respectfully submitted, Johnson, Duffie, Stewart & Weidner David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Petitioner :165725 10016-3 CERTIFICATE OF SERVICE AND NOW, this '~. ~'~day of March, 2003, the under..;igned does hereby certify that he ,did this date serve a copy of the foregoing ANSWER upon the parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Sean Welby David Washington 2705 N. Front Street Harrisburg, PA 17110 JOHNSON, DUFFLE, STEWART & WEIDNER David J. Lanza EXHIBIT "A " Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Petitioner WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner V. EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, ReSpondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-1994 CIVIL ACTJ~_ ,~- !..~w ANSWER OF WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION TO PETITION FOR JUDGMENT OF NON PROS 1. Admitted. 2. Denied. It is denied that West Shore Regional Police failed to provide any document,or item required by any rule of court. By way of further denial to the extent that any document was filed in April 2002, West Shore Regional Police is unaware of such filing. 3. Admitted. 4. Admitted. 5. Admitted lin Part. Denied in Part. The Order of May 7, 1998 speaks for itself. 6. Denied. ti'here have been legal developments which clarify the issues of this case in the intervening period. West~ Shore Regional Police Department CoEimission has previously notified the cour[ of the existence of additional legal precedent and its objection to termination. This Court, through the Honorable Judge Wesle~ Ofer, has entered an Order removing this case from the "purge" list on OctOber 22, 2002. A true and correct copy of the aforesaid Order is attached hereto as Exhibit A. / 7. Denied. As a conclusion of law. 8. Denied. As a conclusion of law. By way of further denial, the Arbitrator's award exceeded the Arbitrator's powers under clear statutory authority, especially as has been clarified by a subsequent decision of the Pennsylvania Supreme Court. 9. Admitted in Part. Denied in Part. While West Shore Regional Police have not submitted a Brief, the Employees have not been prejudiced thereby. Prejudice is an essential element for a Judgment of Non Pros. 10. Admitted. 11. Admitted in Part. Denied in Part. It is admitted that Petitioner West Shore Regional Police Commission sent the afdresaid letter. By way of denial, additional case authority exists which clarify the existing statutory authority. 12. Denied. As a legal conclusion. An Order contrary to Employees' position has already been entered by this Court on tDctober 22, 2002. By way of further denial, any such dismissal requires an actual showing of prejudice by the parties seeking dismissal. Employees~ can show and have shown no prejUdice. 13. Denied. Legal authority has been clarified during the intervening time since the initiation of this action. By way of flurther denial, the Arbitrator's award provides more than mere "legal error." The Arbitrator exceeded his pbwers under the statute as clarified by intervening legal authority. By way of further denial, Employees can show and have shown no prejudice resulting from any delay. 14. Denied. ilt is Employees' burden to demonstrate actual prejudice. West Shore Regional Police does not bear thee burden of showing "special circumstances." By way of further denial, a Brief updating this Court on tt~e law and on the Arbitrator's initial award exceeding the Arbitrator's autholrity and powers is forthcoming. 15, Denied. been prejudice. It is de provisions on which the t is denied that the docket of this Court has been burdened or that Employees have lied that the award had been prevented from being implemented in any way. The Arbitrator exceeded his powers have r~ot affected any current employees. The disputed provisions of the Arbitrator's award affect only the pension benefits. The remaining provisions of the award have been implemented. WHEREFORE, Petitioner West Shore Regional Police Department Commission respectfully requests that this Honorable Court enter an Order dismissing the Petition of Employees of West Shore Regional Police Department for Judgment of Non Pros. Respectfully submitted, Johnson, Duffle, Stewart & Weidner By: ~ '/~'- David O. Lanza Attorney I,D, No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Petitioner :165725 10016-3 CERTIFICATE OF SERVICE AND NOW, this "b>~' day of December, 2002, the undersigned does hereby certify that he did this date serve a copy of the foregoing ANSWER upon the parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Sean Weiby David Washington 2705 N. Front Street Harrisburg, PA 17110 JOHNSON, DUFFLE, STEWART & WEIDNER By: David!'/[''~L~Lanza EXHIBIT "A " WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Plaintiff EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPT., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 98-1994 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of October, 2002, upon consideration of a letter from David J. Lanza, Esquire, o~ behalf of Plaintiff objecting to a purge of this case, iand without objection presented in open court from any p~rty, the case is stricken from the purge list. Jerry R. D~ffie, Esquire David Lanz~ E~quire For the Plaintiff By the Court, ' . ,." ,/ /'/.,,'~ /// James L. Mc For the De~ Court Admit wcy Aneny, Esquire endants istrator Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Petitioner WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Respondent IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-1994 CIVIL ACTION - LAW PRAECIPE TO LIST CASE FOR ARGUMENT TO THE PROTHONOTARY Please list the withir matter for the next: __ Pre-Trial Argument Court X Argument Court State matte~ to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint; etc.): ~eview filed by West Shore Regional Police Department Commission. Petition for Identify cour~sel who will argue case: (a) for Plaintiff: David J. Lanza, Esquire Address: Johnson, Duffle, Stewart & Weianer, 301 Market Street, Lemoyne, PA 17043 (b) for I~efendant: David B. Washington, Esquire Addi'ess: 2705 N. Front Street, Harrisburg, PA 17110 :213308 I will notify ~1 parties in writing within Argument Ctud Date: Call of Argument List Date: two (2) days that thiis case has been listed for argument. July 23, 2003 JOHNSON, DUFFLE, STEWART & WEIDNER, By: David J. Lanza Attorney I.D. No. 55782 Attorney for: Petitioner PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutm%itted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pl~a~e]istthewithinmatterforthene~tArc3~entCourt. CAPTION OF CASE (entire captionmustbestatedin~l]]) WEST SHORE REGIONAL POLICE DEPARTMmNTCOMMISSION ~V~LOYEES OF WEST S~RE R~GIONAL POLICE DEP~, Petitoner 1. State martex demu~z ~r to and Petitio~ Respondent No. 98 Civil 1994 to be argued (i.e., plaintiff's motion for new tri~], defendant's cu,~]a~nt, etc.): Respondent,s Petition for Judgment of Non Pros ~.r's Petition for Review Identif~ o~sel who w~]l argue case: (a) for ?]m~ntiff: David J. Lanza, Esquire ~mess: Johnson, Duffie, Stewart & Weidner 301 Market Street, P.O. Box 109 Lemoyne, PA 17043 (b) for tefeT~nt: David B. WashinGton, Esquire Add cess: Lightman& Welby 2705 N. Front Street Harrisburg, PA 17110 3. I ~rill notii been listed May 21, ! ~] 1 parties in writing within two days that this case has for ar~a~_n t. ~t Date: July 23~ 2003 200 3 i /At~or~e~ f~ Res..~ndent WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Plaintiff VS. EMPLOYEES OF WEST SHORE REGIONAL POLICE' DEPARTMENT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1994 CIVIL CIVIL ACTION -LAW IN RE: PETITION FOR REVIEW BEFORE HOFFER, P.J. AND HESS, J. ORDER AND NOW, this 2~ ~," day of September, 2003, the petition of the West Shore Regional Police Department Commission for Review is GRANTED and the arbitration award of March 12, 1998, is VACATED with respect to a pension increase, and it is further directed that, from and after the date of this order, police officers may retire at no more than fifty percent (50%) of monthly average compensation pursuant to the terms of 53 P.S. 771. Nothing herein shall modify any benefits applicable to retirements prior to the date of this order. BY THE COURT, David J. Lanza, Esquire For the Plaintiff ~ . Hess, J. David~B. Washington, ~squire For the Defendant / ! :rim / WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Plaintiff VS. EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1994 CIVIL CIVIL ACTION -LAW IN RE: PETITION FOR REVIEW BEFORE HOFFER, P.J. AND HESS, J. OPINION AND ORDER In this case, the petitioner has sought review of the decision of an arbitration panel. Specifically, the petitioner excepts to an award which amended a police pension plan to allow police officers to retire at 54.5 percent of their monthly average compensation. There are no factual disputes in the case. The very narrow legal issue is whether or not so-called "Act 600," 53 P.S. 771, which limits pension benefits to up to 50 percent of an officer's monthly average compensation, should have controlled the outcome of the arbitration proceeding. Pending before the court, however, is 4lso a petition filed by the respondent for judgment of non pros based on inactivity in this case. The petitioner initiated this action in 1998 and the matter has only recently been listed fo~ argument. We address firsl the respondent's petition for judgment of non pros. The test for dismissal of a case on account of docket inactivity was set out irt Jacobs v. Hallorai~., 710 A.2d 1098 (Pa. 1998). The luestions which must be addressed are: (1) Whether there has been a lack / of due diligence on thelpart of the plaintiff in failing to proceed with reasonable promptitude; (2) whether the plaintiff h~s a compelling reason for the delay; and (3) whether the delay has caused 98-1994 CIVIL actual prejudice to the defendant. Here there has been delay with no apparent explanation. On the other hand, there has been no prejudice, whatsoever, to the respondent. In the intervening years, several police officers have retired and have begun receiving pensions at the higher rate. The petitioner acknowledges that the outcome of this litigation will not adversely affect their pension status. In the meantime, the remaining employees have: suffered no prejudice in their ability to defend against the commission's appeal. Accordingly, we will deny the respondent's petition for a judgment of non pros and dispose of the matter on the merits. The Employees of the West Shore Regional Police Department (Police Association) is the recognized and exclusive bargaining unit representative for the purpose of collective bargaining with respect to the terms of employment, including wages, hours and conditions of employment. The West Shore Regional Police Commission (Commission) is a police commission formed b~4 mutual agreement between the boroughs of Lemoyne and Wormleysburg, Cumberland County, Pennsylvania. In 1995, the Police Association entered into negotiations for a collective bargaining! agreement to commence January 1, 1996, and run to December 31, 1998. In early 1996, negotiations concluded and an agreement was reached on all issues in dispute except for the improvements demanded by the Police Association with respect to their retirement pension. The Police Aisociation had sought an increase in the monthly average compensation payments. On March 12, 1998, the neutral arbitrator, Kinard Lang, issued an award to the effect that "the Police Pensioh Plan shall be amended retroactively to January 1, 1996 to allow police officers to retire at fift34-four and a half- percent (54.5%) of mouthly average compensation." (Award, p. 2) It is fror The Police Ass, present case because, this award that the Commission now appeals. ,ciation argues that Act 600's fifty percent limit is not applicable in the ;ior to May 10, 1996, regional police departments were not specifically 2 98-1994 CIVIL included in the Act. In support of its position, the Association cites Borough of Lewistown v. Pennsylvania Labor Relations Board, 735 A.2d 1240 (Pa. 1999). The Association relies on Lewistown for the proposition that regional police departments can be awarded pension plans beyond the limits of Act 600. The case, however, does not stand for that proposition. In Lewistown, g regional police department and police association were unable to agree to terms on a new lab~r agreement. An arbitration panel had awarded a pension plan providing regional police departrhent officers with a retirement benefit of seventy percent of their final average salary. Importantly, the arbitration panel's award was not appealed. Nonetheless, the borough, believing that the award was a violation of Act 600, refused to distribute pension funds in accordance with theiarbitration award. The association filed an unfair labor practice action. In the end, the Supreme Court upheld the arbitrator's award of seventy percent, not because it was lawful but because the borough had failed to appeal the award and therefore "waived its right to raise the legalily of the arbitration award." Id~ at 1246. The question, t~en, remains whether Act 600 applied to regional police departments prior to their specific inclusibn in the May 10, 1996 amendment. The Association contends that vacating the arbitrator'S award in the instant case would apply legislation to a contract in effect prior to its enactment and would be the equivalent of an ex post facto law in violation of the Pennsylvania and United States Constitutions. As noted in Lewistown, however, the municipalities forming regional police departments delegate to the regional police department the power to hire, discharge and discipline, and to fix salaries, wages and benefits. Id~. at 1244. We are satisfied that th forming municipalities should be viewed as joint employers for the 3 I 98-1994 CIVIL purposes of Act 111.~ In this case, the boroughs of Lemoyne and Wormleysburg are the joint employers of the West Shore Police Department. Acts 111 and 600 should be applied to them even though their police employees make up a regional departrnent. In light of this conclusion, any constitutional question need not be addressed. ORDER AND NOW, this ,Z/," day of September, 2003, the petition of the West Shore Regional Police Department Commission for Review is GRANTED and the arbitration award of March 12, 1998, is VACATED with respect to a pension increase, and it is further directed that, from and after the datei of this order, police officers may retire at no more than fifty percent (50%) of monthly average compensation pursuant to the terms of 53 P.S. 771. Nothing herein shall modify any benefits applicable to retirements prior to the date of this order. BY THE COURT, ess, J. David J. Lanza, Esquire For the Plaintiff David B. Washington, Esquire For the Defendant :rlm ~ 43 P.S. 217.1, which confi rs upon policemen "employed by a political subdivision of this Commonwealth" the right to bargain collectively with their employers concerning the terms and conditions of their employment including pensions. 4 IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner No. 98-1994 CIVIL TERM CIVIL ACTION AT LAW EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Respondent NOTICE OF APPEAL Notice is tereby given that the Employees of the West Shore Regional Police Department, Res )ondent in the above captioned action, hereby appeals to the Commonwealth C~urt of Pennsylvania from the Order entered in this matter on the 26th day of September. reduced to judgm~ docket entry. Dated: October 8, 2003, by the Honorable Kevin A. Hess, Judge. This Order has been nt and entered in the docket as evidenced by the attached copy of the t003 LIGHTMAN & WELBY Sean T. Well¥, EsqUire Attorney I.D. No. 66516 2705 North Front Street Harrisburg, PA 17110 (717) 234-0111 Attorney for Employees of the West Shore Regional Police Department PYS511 1~98-0'1994 WEST SHORE REGIONAL POLICE DE Cumberland County Prothonotary's Office Page Civil Case Print ' (rs) EMPLOYEES OF WEST SHORE REGION Reference No..: Case TyDe ..... : PETITION Judgmen% ...... : .00 Judge Assigned: HOFFER GEORGE E PJ Disposed Desc.: ............ Case Comments ............. Filed ........ : Time ......... : Execution Date Jury Trial Disposed Date Higher Crt 1.: Higher Crt 2.: 4/o9/1998 3:30 o/oo/oooo o/oo/oooo General Index WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION 301 MARKET STREET LEMOYNE PA 17043 EMPLOYEES OF WEST SHORE REG- IONAL POLICE DEPARTMENT PETITIONER RESPONDANT Attorney Info DUFFIE JERRY R MCANENY JAMES L * Date Entries * /o9/1998 4/17/1998 4/30/1998 4/30/1998 5/07/1998 5/11/1998 11/19/2002 11/26/2002 ii/19/2002 i2/23/2002 3/06/2003 3/27/2003 5/16/2003 5/22/2003 ............. FIRST ENTRY .............. PETITION FOR REVIEW AWARD OF 31~2198 IS HEREBY VACATED AND SET ASIDE SOLELY WITH RESPECT TO pENSION IMPROVEMENT ISSUES -- POLICE OFFICERS MAY RETIRE AT NO MORE THAN 50% OF MONTHLY AVERAGE COMPENSATION PURSUANT TO THE TERMS OF 531 PS 771 - BY EDGAR BY BAYLEY J FOR GEORGE E HOFFER PJ - NOTICE MAILED 4/17/98 RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER VACATE ORDER - ORDER OF 4/16/98 IS VACATED ~2qD PARTIES ARE DIRECTED TO PROCEED WITH THIS ACTION IN ACCORDANCE WITH PA RCP NO 206 ET SEQ BY GEORGE E~ HOFFER PJ - NOTICE MAILED 5/7/98 ANSWER TO RESPONDENT'S MOTION TO RECONSIDER AND VACATE ORDER PETITION FoR JUDGMENT OF NON PROS - BYDAVID B WASHINGTON ESQ ORDER - DATED 11/26/02 - IN RE FOR PETITION TO JUDGMENT OF NON PROS - A RULE IS ISSUED UPON PETITION TO SHOW WHY JUDGMENT NON PROS SHOULD NOT BE GR3~NTED AGAINST PETITIONER - BY GEORGE E HOFFER PJ ES - THE CASE IS STRICKEN FROM THE PURGE LIST AND SHALL REMAIN ACTI VE - J WESLEY OLER JR J - NOTICE MAILED 11/18/02 PETITION FOR JUDGMENT OF NON PROS - BY DAVID J LANZA ESQ FOR PETITIONER JUDGMENT NO~ PROS SHOULD NOT BE ENTERED - RULE RETURNABLE 20 DAYS FROM SERVICE PETITION SHALL FILE A BRIEF ON 30 DAYS AFTER ANSWER - BY THE COURT GEORGE E HOFFER PJ COPIES MAILED FOR JUDGMENT OF NON PROS - BY DAVID J LANZA ESQ FOR PETITIONER PRAECIPE FOR LISTING CASE FOR ARGUMENT - PETITION FOR REVIEW FILED BY WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION - BY DAVID J LANZA ESQ F~R PETITIONER FOR DEFT - RESPONDENT'S PETITION FOR JE~GMENT OF NON PROS AND PETITIONER'S PETITION FOR REVIEW PYS511 1~9'8-61994 WEST SHORE REGIONAL POLICE DE Cumberland County Prothonotary's Office Page Civil Case Print (rs) EMPLOYEES OF WEST SHORE REGION Reference No..: Case Type ..... : PETITION Ju~gmen% ...... : .00 Juage Assigned: HOFFER GEORGE E PJ Disposed Desc.: ............ Case Comments ............. Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: 4/09/1998 3:30 0/00/0000 0/00/0000 GRANTED - AND THE ARBITRATION AWARD OF 3/12/98 IS VACATED WITH RESPECT TO A PENSION INCREASE AND IT IS FURTHER DIRECTED THAT FROM AND AFTER THE DATE OF THIS ORDER POLICE OFFICERS MAY RETIRE AT NO MORE THAN 50 PERCENT OF MONTHLY AVEHAGE COMPENSATION - NOTHING HEREIN SHALL MODIFY ANY BENEFITS APPLICABLE TO RETIREMENTS PRIOR TO THE DATE OF THIS ORDER - BY THE COURT KEVIN A HESS J COPIES MAILED .............. LAST ENTRY .............. * Escrow Information * * Fees & Debits Beq Bal PVmts/Adj End Bal * PETITION 35.00 35.00 .00 TAX ON PETITION .50 .50 .00 SETTLEMENT 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 45.50 45.50 .00 * End of Case Information * WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Plaimiff VS. EMPLOYEES OF WES REGIONAL POLICE DEPARTIvlENT, Defendant T SHORE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-1994 CIVIL CIVIL ACTION - LAW IN RE: PETITION FOR REVIEW BEFORE HOFFER, P.J. AND HESS, J. AND NOW, thi~ ORDER day of September, 2003, the petition of the West Shore Regional Police Department Commission for Review is GRANTED and the arbitration award of March 12, 1998, is VA(~ATED with respect to a pension increase, and it is further directed that, from and after the date !ftkis order, police officers may retire at no more than fifty percent (50%) of monthly average compensation pursuant to the terms of 53 P.S. 771. Nothing herein shall modify any benefits applicable to retirements prior to the dale of this order. BY THE COURT, David J. Lanza, Esquire For the Plaintiff David B. Washington, For the Defendant :rim squire Hess, TRUE COPY FROM RECORD In Testimony whereo(, I here unto set my hand and the _se~ d saki Cou~t at ~ .C~all,~e, Pa.i / ~ Prothon(~lp/ WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Plaintiff VS. EMPLOYEES OF WE REGIONAL POLICE DEPARTMENT, Defendant SHORE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 98-1994 CIVIL : : CIVIL ACTION - LAW IN RE: PETITION FOR REVIEW BEFORE HOFFER, P.J. AND HESS, J. OPINION AND ORDER In this case, the ~etitioner has sought review of the decision of an arbitration panel. Specifically, the petitioner excepts to an award which amended a police pension plan to allow police officers to retire at 54.5 percent of their monthly average compensation. There are no factual disputes in the cgse. The very narrow legal issue is whether or not so-called "Act 600," 53 P.S. 771, which limits pension benefits to up to 50 percent of an officer's monthly average compensation, should have controlled the outcome of the arbitration proceeding. Pending before the court, however, is a~so a petition filed by the respondent for judgment of non pros based on inactivity in this case. The petitioner initiated this action in 1998 and the matter has only recently been listed for We address fir~ dismissal of a case on a 1098 (Pa. 1998). The, of due diligence on the whether the plaintiff ha argument. the respondent's petition for judgment of non pros. The test for :count of docket inactivity was set out in Jacobs v. Hailoran, 710 A.2d uestions which must be addressed are: (:[) Whether there has been a lack ~art of the plaintiffin failing to proceed with reasonable promptitude; (2) ~ a compelling reason for the delay; and (3) whether the delay has caused 98-1994 CIVIL actual prejudice to the defendant. Here there has been delay with no apparent explanation. On the other hand, there ha~ been no prejudice, whatsoever, to the respondent. In the intervening years, several police officers have retired and have begun receiving pensions at the higher rate. The petitioner acknowledges that the outcome of this litigation will not adversely affect their pension status. In the n~eantime, the remaining employees have suffered no prejudice in their ability to defend agalns! the commission's appeal. Accordingly, we will deny the respondent's petition for a judgment !fnon pros and dispose of the matter on the merits. The Employees pf the West Shore Regional Police Depmrtment (Police Association) is the recognized and exclusive bargaining unit representative for the purpose of collective bargaining with respectito the terms of employment, including wages, hours and conditions of employment. The Wes~ Shore Regional Police Commission (Commission) is a police commission formed by ~utual agreement between the boroughs of Lemoyne and Wormleysburg, Cumberland County, Pennsylvania. In 1995, the Police Association entered into negotiations for a collective bargaining ~greemant to commence January 1, 1996, and run to December 31, 1998. In early 1996, negotiati{ms concluded and au agreement was reached on all issues in dispute except for the improvements demanded by the Police Association with respect to their retirement pension. The Police Alsociation had sought an increase in the rnonthly average compensation payments, on March '1~, 1998, the neutral arbitrator, Kinard Lang, issued an award to the effect that "the Police Pensi0~ Plan shall be amended retroactively to January 1, 1996 to allow police officers to retire at fiftytfour and a half- percent (54.5%7 of monthly average compensation." (Award, p. 2) It is fron The Police Ass( present case because, p · this award that the Commission now appeals. ciation argues that Act 600's fifty percent limit is not applicable in the /or to May 10, 1996, regional police departments were not specifically 2 98-1994 CIVIL included in the Act. In isupport of its position, the Association cites Borough of Lewistown v. Pennsylvania Labor Relations Board, 735 A.2d 1240 (Pa. 1999). The Association relies on Lewistown for the proposition that regional police departments can be awarded pension plans beyond the limits of ArX 600. The case, however, does not stand for that proposition. In Lewistown, 4 regional police department and police association were unable to agree to terms on a new labo! agreement. An arbitration panel had awarded a pension plan providing regional police depar~ent officers with a retirement benefit of seventy percent of the/r final average salary. Import~tiy, the arbitration panel's award was not appealed. Nonetheless, the borough, believing that the award was a violation of Act 600, refused to distribute pension funds in accordance with the ~rbitration award. The association filed an unfair labor practice action. In the end, the Supreme Court upheld the arbitrator's award of seventy percent, not because it was lawful but because the borough had failed to appeal the award and therefore "waived its right to raise the legalit of the arbitration award." Id. at 1246: The question, ti eh, remains whether Act 600 applied to regional police departments prior to their specific inclusi, m in the May 10, 1996 amendment. The Association contends that vacating the arbitrator5, award in the instant case would apply legislation to a contract in effect prior to its enactment a id would be the equivalent of an ex post facto law in violation of the Pennsylvania and Unit~ d States Constitutions. As noted in Lewsstown, however, the municipalities forming regional police departments delegate to the regional police department the power to hire, discharge and discipline, and to fix salaries, wages and benefits. Id. at 1244. We are satisfied timt th~ formlng municipalities should be viewed as joint employers for the 3 98-1994 CIVIL purposes of Act 111.~ In this case, the boroughs of Lemoyne and Wormleysburg are the joint employers of the West Shore Police Department. Acts 111 and 600 should be applied to them even though their police employees make up a regional department. In light of this conclusion, any constitutional question need not be addressed. i ORDER AND NOW, thik ,Z I, *~ day of September, 2003, the petition of the West Shore Regional Police Depart~nent Commission for Review is GRANTED and the arbitration award of March 12, 1998, is VACATED with respect to a pension increase, and it is further directed that, from and after the date 6f this order, police officers may retire at no more than fifty percent (50%) of monthly average compensation pursuant to the terms ol." 53 P.S. 771. Nothing herein shall modify any benefits applicable to retirements prior to the date of this order. BY THE COURT, David J. Lanza,, Esquire For the Plaintiff Hess, J. David B. Washington, Esquire For the Defendant ~ 43 P.S. 217.1, which confels upon policemen "employed by a political subd/vision of this Commonwealth" the right to bargain collectively }vith their employers concerning the terms and conditions of their employment/ncluding pensions. 4 CERTIFICATE OF SERVICE I, Sean T Welby, Esquire hereby certify that on thi[s 8th day of October, 2003, I served a tree and ~orrect copy of the foregoing Notice of Appeal by depositing the same with the U.S. Po~tal Service, First Class Mail, Postage Prepaid, upon the following individual(s):, David J. L~ nza, Esquire Johnson, D ~ffie, Stewart & Weidner 301 Marke' Street P.O. Box 1 )9 Lemoyne, ]'A 17043-0109 Attorneys l ~r West Shore Regional Police Departmen: Commission By Scan T. Welby, Es~ire Attorney I.D. No. ~6516 2705 North Front Street Harrisburg, PA 17110 (717) 234-0111 Attorney for Employees of the West Shore Regional Police Department IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE RI~GIONAL POLICE DEPARTMENT QOMMISSION, Petitioner EMPLOYEES O~WEST SHORE REGIONAL POLICE DEPARTMENT, Respondent No. 98-1994 CIVIL TERM CIVIL ACTION AT LAW TO THE COURT A Notice ¢ that there is no tra Dated: October 8t 2003 ORDER FOR TRANSCRIPT TENOGRApHER: f Appeal having been filed in the above-captioned matter, I hereby certify ~script for transmittal. LIGHTMAN & WELBY By Sean T. Welby, Fl~quire Attorrtey I.D. No. 66516 2705 North Front Street Harrisburg, PA 17110 (717) 234-0111 Attorney for Employees of the West Shore Regional Police Department Commonwealth Court of Pennsylvania October 17, 2003 RE: W. ,~t:ig~t Comm v. Emp of W Shore Reg No.~ Agency Docket Number: Filed Date: October 9, Notice of Docketing Appeal A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter ~19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effe{;t of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete re~ord, including the opinion of the trial judge, should be forwarded to the Commonwealth Cou[t within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. PaRA.P. 1921~to 1933 provides the standards for preparation, certification and transmission of the record. The address to ~vhich the Court is to transmit the record is set forth on Page 2 of this notice. Notice to Counsel A copy of this nc rice is being sent to all parties or their counsel indicated on the proof of service accompanyi3g the Notice of Appeal. The appearance of all counsel has been entered on the reco'd in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the I~ otice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907 (b. Appellant or App .~llant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must acc?mpany records in Zoning Appeal casesil. The addresses t(~ which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Attorney Name David J. Lanza, Esq Sean T. Welby, Esq Party Name Party Type West Shore Regional Police Department Appellee Employees of the West Shore Regional Appellant 1N THE COMMON PLEAS COURT OF CUMBERLAND PENNSYLVANIA WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, Petitioner V. EMPLOYEES OF ~ VEST SHORE REGIONAL POLI( ~.E DEPARTMENT, Respondent Notice is he Department, Respr Commonwealth Co, No. 98-1994 CIVIL TERM CIVIL ACTION AT LAW NOTICE OF APPEAL reby given that the Employees of the 'West Shore Regional Police ndent in the above captioned action, hereby appeals to the irt of Pennsylvania from the Order entered in this matter on the 26th day of September, ~003, by the Honorable Kevin A. Hess, Judge. This Order has been reduced to judgmen[ and entered in the docket as evidenced by the attached copy of the docket entry. TRIJE COPY FR Dated: October 8, 2( 3M RECORD 03 LIGHTMAN & WELBY By Sean T. Welby, EsoqfiJre Att0mey I.D. No. 66516 2705 North Front Street Harrisburg, PA 17110 (717) 234-0111 Attorney for Employees o£the West Shore Regional Police Department IN THE COMMONWEAL TH COURT OF PENNSYLVANIA West Shore Regional Police Department Conunission ~q8-r lqqq ~ v. Employees of West Shore Regional Police Department, Appellant No. 2237 C.D. 2003 Argued: March 29, 2004 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE CHARLES P. MIRARCHI, JR., Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: May 25,2004 The Employees of West Shore Regional Police Department (Employees) appeal the order of the Court of Common Pleas of Cumberland County (common pleas court) which granted the West Shore Regional Police Commission's (Commission) petition and vacated the arbitration award which awarded the Employees pension benefits equal to 54.5% of salary. The common pleas court further ordered that from and after the date of its order, police officers may retire with a pension no greater than fifty percent of monthly average compensation. The Borough of Wormleysburg (Wormleysburg) and the Borough of Lemoyne (Lemoyne) entered into a municipal compact for police services which resulted in the creation of the Commission. The Commission recognized the West Shore Regional Police (Police) as the exclusivl~ bargaining agent for the Employees below the rank of Chief of Police and entered into a collective bargaining agreement. Upon the expiration of that collective bargaining agreement, the parties began negotiations for the contract year to begin on January I, 1996. Collective bargaining was initially unsuccessful and in accordance with Act III] a Board of Arbitrators (Board) was appointed to hear the matter. At a hearing held February 29, 1996, the parties resolved all issues with the exception of pension benefits. The Board suspended proceedings and reconvened on September II, 1997, to decide that issue. By award issued March 12, 1998, (award), the Board detennined that the police pension plan should be amended to provide a normal retirement benefit of 54.5% of monthly average compensation, effective January I, 1996. On April 9, 1998, the Conunission petitioned for revIew of the arbitration award in the common pleas court and contended that the award violated Act 6002 which established a maximum normal retirement benefit of no more than 50% of average monthly compensation. The COl1Unission did not do anything to move along its petition until it was placed on the COl1U110n pleas court's purge list on September 16, 2002. When the COlwnission objected to the placement on the purge list, the Police petitioned for judgment non pros. The Commission moved to have its petition decided on May 16, 2003. The common pleas court consolidated the two matters. 2 Act ofJnne 24, 1968, P.L. 237, as amended, 43 P.S. 99217.1-217.10. Act of May 29, 1956, P.L. (1955) 1804, as amended, 53 P.S. 99767-778. 2 The common pleas court denied the motion for non pros on the basis that the Police failed to show any prejudice as a result of the delay because police officers who retired since the award received pension benefits at the rate established in the award and the remaining employees have suffered no prejudice. With respect to the award itself, the common pleas court determined: The Police Association argues that Act 600's fifty percent limit is not applicable in the present case because, prior to May 10, 1996, regional police departments were not specifically included in the Act. . . . The question, then, remains whether Act 600 applied to regional police departments prior to their specific inclusion in the May 10, 1996 amendment. The Association [Police] contends that vacating the arbitrator's award in the instant case would apply legislation to a contract in effect prior to its enactment and would be the equivalent of an ex post facto law in violation of the Pennsylvania and United States Constitutions. As noted in Lewistown [v. Pennsylvania Labor Relations Board, 558 Pa. 141, 735 A.2d 1240, (1999)], however, the municipalities forming regional police departments delegate to the regional police department the power to hire, discharge and discipline, and to fix salaries, wages and benefits. . . . We are satisfied that the forming municipalities should be viewed as joint employers for the purposes of Act 111. . . In this case, the boroughs of Lemoyne and Wormleysburg are the joint employers of the West Shore Police Department. Acts 111 and 600 should be applied to them even though their police employees make up a regional department. (Footnote and citation omitted). Common Pleas Court Opinion and Order, September 26, 2003, at 2-4; Reproduced Record at 45a-47a. The Employees contend that the order of the common pleas court should be vacated for lack of subject matter juriscliction where the petition for 3 review was not filed by the Act 111 employers who are necessary parties to such an action, that the common pleas court erred when it vacated the award, where the COlmnission took no action to pursue review for nearly five years and the Employees were prejudiced by the delay, that the common pleas court erred when it vacated the award where the Board did not exceed the authority it had upon its appointment, that the common pleas court exceeded the scope of review prescribed for an Act 111 interest arbitration award when it fashioned a new award through its order.J The Employees contend that the common pleas court erred when it detennined that the Board exceeded its authority when it awarded pension benefits in the amount of 54.5% of salary in excess of the amount required under Act 600 where Act 600 was not applicable to regional police departments until after the Board began its proceedings.4 The parties authorized the Board to resolve issues of retirement and pensIOn effective January 1, 1996. At that time, Act 600 limited retirement benefits in those municipalities covered by Act 600 to 50%. Section 1 (a) of Act 600,53 P.S. s767(a)(2), provided: This Court's review of an Act III interest arbitration award is limited to narrow certiorari where the award may only be reviewed for the jurisdiction of the arbitrator, any ilTegularity in the proceedings, an excess of the arbitrator's authority; or deprivation of constitutional rights. Pennsvlvania State Police v. Pemlsvlvania State Troopers Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995). With respect to the common pleas court's denial of the Employees' motion to enter judgment non pros, the decision rests within the discretion of the common pleas court and will not be disturbed unless the common pleas court abused its discretion or committed an error oflaw. Settv v. Knepp, 722 A.2d 1099 (Pa. Super. 1998). 4 We have foregone the sequence of the Employees' arguments. J 4 Each borough, town and township ofthis Commonwealth maintaining a police force of three or more full-time members shall, and all other boroughs, towns or townships may, establish, by ordinance or resolution, a police pension fund or pension annuity to be maintained by a charge against each member of the police force, by annual appropriations made by the borough, town or township, by payments made by the State Treasurer to the municipal treasurer from the moneys received from taxes paid upon premiums by foreign casualty insurance companies for purposes of pension retirement for policemen, and by gifts, grants, devises or bequests granted to the pension fund pursuant to section two of this act. Such fund shall be under the direction of the governing body of the borough, town or township, and applied under such regulations as such governing body, by ordinance or resolution, may prescribe for the benefit of such members of the police force as shall receive honorable discharge therefrom by reason of age and service, or disability, and may prescribe for the benefit (i) of widows, and if no widow survives or if she survives and subsequently dies or remarries, then (ii) of child or children under the age of eighteen years, of members of the police force or a member who retires on pension who dies or if no widow survives or if she survives and subsequently dies or remarries, then the child or children under the age of eighteen years of a member who retires or on pension who dies on or after the effective date of this amendment, may, during her lifetime or so long as she does not remarry in the case of a widow or until reaching the age of eighteen years in the case of a child or children, be entitled to receive a pension calculated at the rate of fifty per centum of the pension the member was receiving or would have been receiving had he been retired at the time of his death. Section 1 of Act 600 was amended effective May 10, 1996. After the amendment, Section 1 provides: (a) Each borough, town and township of this Commonwealth maintaining a police force of three or 5 more full time members and each regional police department shall, and all other boroughs, towns or townships may, establish, by ordinance or resolution, a police pension fund or pension annuity to be maintained by a charge against each member of the police force, by annual appropriations made by the borough, town, township or regional police department, by payments made by the State Treasurer to the municipal treasurer from the moneys received from taxes paid upon premiums by foreign casualty insurance companies for purposes of pension retirement for policemen, and by gifts, grants, devises or bequests granted to the pension fund pursuant to section two of this act. Such fund shall be under the direction of the governing body of the borough, town, township or regional police department, and applied under such regulations as such governing body, by ordinance or resolution, may prescribe for the benefit of such members of the police force as shall receive honorable discharge therefrom by reason of age and service, or disability, and may prescribe for the benefit (i) of widows, and if no widow survives or if she survives and subsequently dies or remarries, then (ii) of child or children under the age of eighteen years, of members of the police force or a member who retires on pension who dies or if no widow survives of if she survives and subsequently dies or remarries, then the child or children under the age of eighteen years of a member who retires or on pension who dies on or after the effective date of this amendment, may, during her lifetime or so long as she does not remarry in the case of a widow or until reaching the age of eighteen years in the case of a child or children, be entitled to receive a pension calculated at the rate of fifty per centum of the pension the member was receiving or would have been receiving had he been retired at the time of his death. (b) For purposes of this Act, the term 'regional police department' shall mean a police force organized and operated in combination by two or more municipalities through an intermunicipal agreement under the act of July 12,1972 (P.L. 762, No. 180),... referred to as the Intergovernmental Cooperation Law. (Footnote omitted, emphasis added). 6 53 P.S. ~767. In addition, the 1996 amendment to Act 600 added the following language in Section 11.1: Notwithstanding any provIsIOn of this act, a regional police department retirement system established prior to the effective date of this amendatory act may retain the eligibility and benefit provisions specified in the retirement system's pension plan on the effective date of this amendatory act. Any subsequent modification of the eligibility or benefit provisions of the regional police department retirement system's pension plan shall be made under the provisions of this amendatory act. 53 P.S. ~777.1. The effective date of the amendments to Act 600 was May 10, 1996. Prior to that time, Act 600 did not refer to regional police departments in the plain language of the act. Although the Board did not issue its award until March 12, 1998, the Board's jurisdiction attached as of January I, 1996. The Board ordered the Commission to set the police pensions at a rate of 54.5%. The common pleas court determined that the Board exceeded its authority and directed an illegal act because the pension rate exceeded 50% in violation of Section I of Act 600. However, as of the effective date of the Board's decision, regional police departments were not covered under Act 600. This Court agrees with the Employees that Act 600 did not apply to regional police departments prior to the 1996 amendment. Further, Section 11.1 of Act 600, 53 P.S. ~777.1, provides that regional police departments are not subject to the limitations of Act 600 before 7 May 10, 1996, if a regional police department pension had a pension system in place at that time. The common pleas court erred when it determined that the Board directed the commission of an illegal act when it ordered that the pension be established at 54.5%.5 Accordingly, we reverse. p~L rnxf;-~y BERNARD L. McGINLEY, Ju e 5 This Court need not address the Employees' remaining issues. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA West Shore Regional Police Department Commission v. Employees of West Shore Regional Police Department, No. 2237 C.D. 2003 Appellant ORDER AND NOW, this 24th day of May, 2004, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is reversed. G -;:> B ~ ~ S r - ~ ;- J\ \J -<; ~ C" C:' p.,,- c r ~. J'. ~ ~ .->;--> ..-l r - IN THE SUPREME COURT OF PE.NNSYLVANIA MIDDLE DISTRICT WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, : No. 529 MAL 2004 Petitioner : Petition for Allowance of Appeal from the : Order of the Commonwealth Court v. : JI q8- Iq0c.f ~~ EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Respondents [ ORDER PER CURIAM AND NOW, this 15th day of October 2004, the Petition for Allowance of Appeal is denied. TRUE & CORRECT COPY ArnST: "- /~ 2004 ' .~ ~ SHIR 8A'L~ CHIEF CLERK '" ~j>~ C'~'" i l..-'') c S:- C) 0') Irene M. Bizwso Deputy Prothonotary Shirley Bailey Chief Clerk Supreme Court of Pennsylvania J.V[jddle District October 15, 2004 Mr. Charles R. Hostutler Deputy Prothonotary/Chief Clerk Irvis Office Building, Room 624 Sixth Floor Harrisburg, PA 17120 RE: West Shore Regional Police Department Commissiion, Petitioner v. Employees of West Shore Regional Police Department, Respondents Commonwealth Docket Number - 2237 CD 2003 Trial Court/Agency Dk!. Number: 98-1994 Civil Term No. 529 MAL 2004 Appeal Docket No.: Date Petition for Allowance of Appeal Filed: June 23, 2004 Disposition: Order Denying Petition for AllowancEl of Appeal Date: October 15, 2004 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /ma jtJ P.O. Box 624 Harrisbure:. PA 17108 717-787-6181 wwvl.aopc.org ~ = = = n D O.3:Al "~rrr -000 rriZr<1 Z:E.< Zrrtrt (,l))> 0 -<r-~ :<::::!t<~ :r>-"-::: z(Jr -Of'T1 )>CCJ ::0 -< z = <:: I W "D w o IN THE SUPREME COURT OF PI::NNSYLVANIA MIDDLE DISTRICT WEST SHORE REGIONAL POLICE DEPARTMENT COMMISSION, : No. 529 MAL 2004 Petitioner : Petition for Allowance of Appeal from the : Order of the Commonwealth Court v. :j{ qg- Iqq~ C!u~ EMPLOYEES OF WEST SHORE REGIONAL POLICE DEPARTMENT, Respondents ORDER PER CURIAM AND NOW, this 15th day of October 2004, the Petition for Allowance of Appeal is denied. TRUE & CORRECT COPY ArnST: ,-~/JE 1 ::~ ~; ;( SHIR~ BAILEY CHIEF CLERK ~ !:.:J ,1 ~-:;, c:) }::- (:7) 0'''\