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BOROUGH OF MOUNT HOLLY
SPRINGS,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVlL ACTION - LAW
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
NO. 00-5642
BRIEF, OF DEFENDANTS, TROY WISER AND THE MOUNT HOLLY SPRINGS
POLICE ASSOCIATION IN OPPOSITION TO PILAINirIFF'S APPLICATION TO
ENJOIN THE GRIEVANCE ARBrrRATIbN PROCESS
I. FACTUAL BACKGROUND AND PROCEDURAL mSTORY
" Ai an times material hereto, Defendant, Troy Wiser was a"{Jolice officer employed by ...
the Plaintiff, Borough of Mount Holly Springs (hereinafter "Borough"). Defendant, Mount
Holly Springs Police Association (hereinafter "Association"), is the exclusive representative
....
of Mount Holly Springs Police Officers pursuant to Act III of 1968,43 P.S. SS 217.1 et
sea., and the Pennsylvania Labor Relations Act ("PLRA"), 43 P.S. SS 211.1 et seq. The
Borough is the public employer of Association members pursuant to Act 111 and the
PLRA. The Borough and the Association are parties to a Collective Bargaining Agreement
("CBA") covering calendar years 2000 and 2001. (See Exhibit "A" to Plaintiff's Complaint).
In a letter dated June 13, 2000, the Borough discharged Officer Wiser from his
employment for alleged instances of misconduct set forth in a Petition seeking a Protection
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From Abuse Order. The notice provided that Officer Wiser's alleged actions constituted
conduct unbecoming an officer and that he was removed pursuant to Section 46190(4) of
the Civil Service Provisions within the Borough Code. See 53 P.S. S 46190(4).
On or about June 19, 2000, Officer Wiser filed a grievance challenging the discharge
as without just cause and requesting reinstatement with full back pay, seniority and benefits.
Officer Wiser filed the grievance pursuant to Article VI, Exhibit C to the CBA. Officer
Wiser filed the initial grievance with the Mayor of the Borough. When the Mayor failed to
respond to the grievance in a timely fashion, Officer Wiser appealed to the Borough's Public
Safety Committee as per the contractual grievance procedure. The Commitree denied the
grievance on or about July 3, 2000. Officer Wiser then appealed the grievance to Borough
Council pursuant to the contractual grievance procedure. Borough Council denied the
grievance on July 12, 2000. Officer Wiser and the Association then appealed the grievance
to arbitration via letter dated July 27, 2000. See Exhibit "B" to Plaintiffs Complaint.
When the parties were unable to agree upon a neutral arbitrator to hear and decide the
grievance, the Defendants, through their counsel, contacted the American Arbitration
Association ("AAA") and requested a list of arbitrators from which a selection could be
made. Defendants made this request pursuant to Article VI, Exhibit C, Paragraph 6 of the
CBA. Plaintiff then responded by filing the instant Complaint and Petition.
The essence of Plaintiffs current challenge before this Honorable Court is that the
issue of Officer Wiser's discharge is not arbitrable. Plaintiff points to the language of the
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CBA as support for its position. Defendants ask this Court to examine the CBA and to
embrace their position that the matter of employee discharges is within the scope of the
grievance procedure.
n. ISSUE
WHETHER TIllS HONORABLE COURT SHOULD INTERPRET THE
LANGUAGE OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT AND THEN ANSWER PLAINTIFF'S CHALLENGE TO
THE ARBITRABILITY OF THE GRIEV ANCEl
(Suggested Answer in the negative).
m. ARGUMENT
A. TIllS HONORABLE COURT S~OULD NOT DECIDE
THE ARBITRABJiLITY ISSUEBU'f SHOULD DEFER
THE INITIAL DETERMlNATI~N OF SAID ISSUE TO
THE DULY SELECTED GRIEVANCE ARBITRATOR.
It is well settled that a procedural challenge to an arbitrator's jurisdiction to hear a
grievance, which is known as a challenge to arbitrability, is for the arbitrator to determine in
the first instance. The use of a proceeding such as this one, where the employer asks a court
of common pleas to enjoin an arbitration hearing, is not appropriate where the parties' CBA
contains a grievance procedure that culminates in arbitration.
An employer normally utilizes the Uniform Arbitration Act ("UAA"), Act of
October 5, 1980, P.L. 693, No. 142, as amended, 42 Pa. C.S. ~~ 7301 et sea., as the basis for
challenging arbitrability through the Courts in the first instance. Although the UAA vests
trial courts with jurisdiction to determine whether parties to an agreement have agreed to
arbitrate given issues, the UAA does not apply to all types oflabor agreements.
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In Chester Upland School District v. McLaughlin, 655 A.2d 621 (Fa. Cmwlth.
1995), affirmed, 544 Pa. 199, 675 A.2d 1211 (1996), the Commonwealth Court finally
resolved the question of whether a trial court has jurisdiction to enjoin an arbitration arising
from disputes between a public employer and its employees.' The Court placed initial
jurisdiction over challenges to arbitrability in the hands of arbitrators. Id. at 629. Although
prior decisions on the issue produced mixed results, the Court adopted a universal rule in
Chester Uoland overruling all previous decisions to the contrary. Id.
The Court observed that by its very language, the UAA applies only to arbitral
controversies between employers and employees where UAA provisions are consistent with
applicable labor statutes. Id. at 628. The applicable labor statute in Chester Uoland was the
Public Employee Relations Act ("PERA"), 43 P.S. SS 1101.101 et sea., Section 903 of
which addresses the resolution of grievances. The Supreme Court previously interpreted
Section 903 as requiring all disputes over public sector collective bargaining agreements to
be presented to arbitration prior to reaching the courts. Pennsvlvania Labor Relations
Board v. Bald Ealde Area School District, 499 Pa. 62, 451 A.2d 671 (1982). The
Commonwealth Court held that because Section 903 of PERA provides the arbitrator with
the "sole and exclusive jurisdiction to hear disputes related to collective bargaining
agreements, including disputes of whether a matrer is arbitrable," the UAA provisions
creating trial court jurisdiction are inconsistent with the labor statute. Chester Uoland, 655
A.2d at 629. Accordingly, the UAA, by its own definition, does not apply where PERA
1 The Pennsylvania Supreme Court affirmed the Commonwealth Court's Decision and Order without a
further written opinion.
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controls. Id. The arbitrator then "has sole jurisdiction in the first instance to decide
whether an issue is arbitrable," and the courts are completely divested of any injunctive
authority. Id.
Although Chester Uoland specifically addressed a bargaining unit subject to PERA,
the fact that police bargaining units are governed by Act III does not alter the analysis or
the outcome. In Pennsvlvania State Police v. Pennsvlvania State Troopers' Association
(Betancourt), 540 Pa. 66, 656 A.2d 83 (1995), the Supreme Court specifically held that
Section 1 of Act 111 provides the authority for grievance arbitration in police collective
bargaining disputes and not the UAA. Id. at 87-88; see also Chirico v. Board of Supervisors
of Newt own Townshio. 504 Pa. 71, 78-79, 470 A.2d 470,474 (1983). As such, Section 1 of
Act 111 operates in the same capacity as Section 903 of PERA, investing jurisdiction over
all disputes related to police collective bargaining agreements in arbitrators, including issues
of arbitrability. The UAA conflicts with Act 111 just as it does with PERA. Under the
analysis set forth in Chester Uoland, the UAA is inapplicable here by its inconsistency with
the governing labor statute (Act 111). The sole jurisdiction in the first instance is with the
arbitrator and not with the trial court.
In the instant case, the Borough has petitioned the Court for injunctive relief on the
grounds that proceeding with the arbitration will cause it to suffer substantial and
irreparable injury. It has not cited the UAA as providing the Court with jurisdiction to
resolve the arbitrability issue but simply asks for the Court to examine the contract language
under a traditional theory of injunctive relief. Critically, however, the Borough has failed to
meet its burden of satisfYing the requisite elements for injunctive relief.
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An injunction should only be granted where: (1) the petitioner demonstrates a
likelihood of success on the merits; (2) that without the requested relief, the petitioner will
suffer irreparable injury; (3) an injunction will not substantially harm other interested parties
in the proceedings; and, (4) an injunction will not adversely affect the public interest.
Pennsvlvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545,
_, 467 A.2d 805, 808-09 (1983). There are two reasons why Plaintiff is not likely to
succeed on the merits. First, this Honorable Court should defer the initial determination on
arbitrability to the arbitrator pursuant to Chester Unland and Betancourt, supra. Second,
the CBA contains specific election of remedies language that brings officer discipline within
the scope of the grievance-arbitration procedure.
Next, the Plaintiff has failed to aver how it will be irreparably harmed by proceeding
to arbitration. If Plaintiff goes to arbitration, it will be free to challenge arbitrability. During
the time in which the parties schedule the arbitration hearing, hold the hearing and then
await a decision, it does not have to provide Defendant Wiser with payor benefits. These
were stopped in June of 2000 with Officer Wiser's removal. Thus, there will be no
irreparable financial impact on the Borough. Moreover, if Plaintiff disagrees with the
determination of the arbitrator, it may seek judicial review by challenging arbitral
jurisdiction under the narrow certiorari scope of review. Betancourt, 656 A.2d 83. The
application of this scope of review further evidences that arbitrators are to address
arbitrability first. The Court may then review the issue on review of the award. These
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factors demonstrate a failure by the orough to show it will suffer irreparable injury. The
cost of proceeding to arbitration is no irreparable injury. Defendants face those same costs
in proceeding to arbitration.
The Plaintiff has also failed t show that Officer Wiser will not be harmed by an
injunction. Officer Wiser has gone ithout the pay and benefits of Borough employment
since June 12, 2000. An injunctio of the arbitration process will cause Officer Wiser
substantial harm by continuing to sep ate him from paid employment pending the outcome
of this case on the merits.
Lastly, the granting of an inj ction would adversely affect the public interest by
bypassing the contractually establishe procedure for resolving disputes between the parties.
In order to grant the injunction, th Court would have to find, contrary to the prior
holdings of the Commonwealth Curt, that arbitrators do not decide questions of
arbitrability in the first instance. 's would cloud the rule of law concerning the
expeditious resolution of challenges t arbitrability and would thereby adversely affect the
public interest in quickly resolving dis utes between public employers and employees.
Based upon all of the forego. g, it must be found that the Plaintiff has failed to
establish the required elements to enjo the arbitration process.
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B. ARTICLE VI, EXHIBIT C, PARAGRAPH 10
SPECIFICALLY PROVIDES FOR THE USE OF
GRIEVANCE ARBITRATION TO CHALLENGE
DISCJPLlNE IN LlliU OF FOLLOWING THE
STATUTORY MECHANISMS SET FORTH IN THE
POLICE, TENURE ACT OR CIVIL SERVICE
PROVISIONS OF THE BOROUGH CODE,
An examination of the parties' CBA reveals that they agreed upon a grievance and
arbitration procedure to provide an expeditious means of resolving contractual disputes.
This procedure is set forth in Article VI, Exhibit C to the CBA. The procedure contains four
(4) steps: (1) filing with the Mayor; (2) appeal to the Public Safety Committee; (3) appeal to
Borough Council; and, (4) appeal to arbitration. See Exhibit "A" to Plaintiff's Complaint.
An officer who is not satisfied with the disposition of his or her grievance appeal at any of
these steps may continue to appeal the matter up to arbitration, which is binding on the
parties. Article VI of the CBA provides that this procedure "shall be utili[z]ed by the parties
to resolve any grievances." The procedure itself, which is set forth as Exhibit "C" to the
CBA, goes on to provide further information concerning grievances challenging actions of
the employer. Paragraph 10 provides as follows:
If the subject matter involves the Police Tenure Act, Civil
Service statutes, the Local Agency or similar laws and
regulations and the employee utilizes such process, any steps
along the grievance procedure shall cease.
See Exhibit "A" to the Plaintiff's Complaint.
The Police Tenure Act, 53 P.S. SS 811-815, applies to Boroughs with less than three
full-time police officers. At the time of Officer Wiser's discharge, the Borough employed at
least three full-time officers. Thus, this statute did not apply at that particular time. There
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was a time in the past when the Act did apply to Mount Holly Borough Police Officers.
Section 812 of the Act provides a list of offenses for which officers may be suspended or
removed. Id. ~ 812. Section 814 provides that any officer who is suspended or removed
shall have the right to a hearing challenging said discipline. Id. ~ 815.
The Civil Service Provisions of the Borough Code apply to Boroughs that employ
three or more full-time police officers. 53 P.S. ~ 46171. Section 46190 of the Borough Code
sets forth express provisions limiting the reasons for which officers may be suspended or
removed. Id. ~ 46190. Section 46191 provides officers with the right to challenge discipline
in a hearing before the duly appointed Civil Service Commission. Id. ~ 46191. These
provisions applied to the Borough and its officers at the time that Officer Wiser was
terminated because the Borough employed at least three full-time officers.
It is at once apparent that the references to the Police Tenure Act and Civil Service
statutes are specific references to the reasons for which the Borough may suspend or remove
its police officers and the means for the officers to challenge such discipline. The inclusion
of these references in Article VI, Exhibit "C", Paragraph 10 places officer terminations
within the scope of the grievance procedure. First, the subject matter of these statutes is
discipline. Second, the language provides that should an officer use the processes set forth
in the statutes, then the officer forfeits his or her right to challenge the discipline via the
grievance procedure. This language is an obvious "election of remedies" provision
permitting officers to obtain a due process hearing via arbitration or through civil service,
but not both.
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The Pennsylvania Supreme Court addressed the issue of election of remedies when it
decided Commonwealth v. State Conference of State Police Lodges of the Fraternal Order
of Police, 575 A.2d 94 (Fa. 1990). There, the Court held that police officers have a right to
an election of remedies. Officers may utilize statutorily provided procedures to challenge
discipline or they may challenge discipline via the grievance arbitration process. Police
officers in the Borough of Mount Holly Springs have an election of remedies provision set
forth in Article VI, Exhibit C, Paragraph 10 of the CBA. They may challenge discipline via
Civil Service provisions or through grievance arbitration. Officer Wiser properly elected the
grievance procedure to challenge his termination.2
C. Tms HONORABLE COURT SHOULD AWARD
DEFENDANTS' REASONABLE ATTRORNEYS FEES
AND COSTS BECAUSE THE COMPLAINT AND
PETITION TO EN10IN ARBITRATION WERE FILED
WITHOUT SUFFICIENT GROUNDS,
Chapter 25, Section 2 of the Judicial Code, 42 Pa. C.S. S 2503(9), provides for the
award of counsel fees where "the conduct of another party in commencing the matter was
arbitrary, vexatious or in bad faith." Id. S 2503(9). A claim or action that is initiated
without sufficient grounds and which serves only to cause annoyance is "vexatious." In re
St. Clement's Church, 687 A.2d 11 (Fa. Cmwlth. 1996), appeal denied, 584 Pa. 684, 699
A.2d 737 (1997). The Complaint and Petition here were made in clear contrast to precedent
giving grievance arbitrators jurisdiction in the first instance to decide arbitrability questions.
2 The limitation on reasons for which officers may be disciplined, as set forth in the Borough Code (53 P.S. ~
46190), establishes a just cause standard. In addition, the courts have found that just cause is for the arbitrator
to defme as part of his fact-finding function. Crawford County v. AFSCME. District Council 85, 693 A.2d
1385,1391 (Pa. Cmw1th. 1997).
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The Borough's present action has caused undue delay and financial harm to Defendants in
lieu offollowing a process intended to resolve contractual disputes expeditiously. The delay
is caused without any reasonable basis in law or fact. This Court has the discretion to
award counsel fees and costs (pursuant to 42 Pa. C.S. S 1726) to a Defendant in these
circumstances. Fees and costs are appropriate here.
IV. CONCLUSION
Based upon all of the foregoing, it must be found that Plaintiff failed to establish a
right to injunctive relief. This Court does not have jurisdiction to address arbitrability issues
in the first instance. Its jurisdiction concerning arbitrability arises only in an appeal of a
subsequent arbitration award. The Court should dismiss the Petition and Complaint, and it
should direct the Plaintiff to proceed with arbitration of the grievance. The Court should
also award reasonable counsel fees and costs to the Defendants for defending this action.
Respectfully submitted:
Eric C. Stoltenberg, Esquire
Attorney J.D. No. 77630
2705 North Front Street
Harrisburg, PA 17110
(717) 234-0111
Attorneys for Defendants
Date: August ~() ,2000
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CERTIFICATE OF SERVICE
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I, Eric C. Stoltenberg, Esquire, hereby certify that on this L day of August 2000,
I served a true and correct copy of the foregoing Brief of Defendants in Opposition to
Plaintiff's Application to Enjoin the Grievance Arbitration Process, in the manner
indicated below, upon the following individua1(s):
HAND-DELIVERED
Richard J. Pierce, Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
The Honorable Edward E. Guido
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
Keith O. Brenneman, Esquire
SNELBAKER, BRENNEMAN & SPARE
44 West Main Street
P.O. Box 318
Mechanicsburg, Pennsylvania 17055
Attorney for Plaintiff
LlGHTMAN & M
By: ~O ,-/- '\
Eric C. Stoltenberg, Esquire
Attorney J.D. No. 77630
2705 North Front Street
Harrisburg, PA l7ll0
(717) 234-0111
Attorneys for Defendants
BORpUGH OF MOUNT HOLLY
SPRINGS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
: NO. 00- !)~'I';"
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
ORDER
AND NOW, this d,..,;rdayof ~
,2000, upon consideration of the
Petition For Preliminary Injunctive Relief of Borough of Mount Holly Springs it is hereby
ORDERED that:
A RULE is hereby issued upon Respondents Troy Wiser and Mount Holly Springs Police
Association to show cause, if any they should have, why a preliminary injunction should be
issued providing the relief requested by the Petitioner.
RULE RETURNABLE at a hearing scheduled on the Petition before this Court on the
3 bi'kday of ~ ,2000 at g, '/)' o'clock A.. .M. in Courtroom No..b' at the
Cumberland County Courthouse, Hanover and High Streets, Carlisle, Pennsylvania.
LAW OFFICES
SNELBAKER,
BRENNEMAN
& $PARE
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L.AW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
BOROUGH OF MOUNT HOLLY
SPRINGS,
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO.OO- S(,'f;;J.
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
NOTICE TO PLEAD
TO: Troy Wiser and Mount Holly Springs Police
Association, Defendants
You are hereby notified that you have twenty (20) days in which to plead to the enclosed
petition or a Default Judgment may be entered against you.
SNELBAKER, BRENNEMAN & SPARE, P. C.
1Lf~~
By:
Keith O. Brenneman, Esquire
44 West Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Solicitor for Plaintiff
Date: August 15, 2000
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BOROUGH OF MOUNT HOLLY
SPRINGS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO.OO- .bl.,'f.;;;>"
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
PETITION FOR PRELIMINARY INJUNCTIVE RELIEF
Plaintiff Borough of Mount Holly Springs by its attorneys, Snelbaker, Brenneman &
Spare, P .C., petitions this Court for the issuance of a preliminary injunction and in support
thereof states the following:
1. Plaintiff Borough of Mount Holly Springs, Petitioner herein, initiated this action by
filing a Complaint in Equity with the Office of the Prothonotary of this Court on August 15,
2000. A true and correct copy of the Complaint is attached hereto and incorporated by reference
herein as "Exhibit A".
2. Petitioner initiated this action due to Defendants' efforts to submit to binding
arbitration a purported grievance which concerns the removal of Defend ant Troy Wiser as a
police officer in and for the Borough of Mount Holly Springs.
3. At the time Defendant Troy Wiser was removed as a police officer of the Borough of
Mount Holly Springs, there existed a police contract between the Petitioner and Defendant
Borough of Mount Holly Springs Police Association (the "Association") applicable to the
calendar years 2000 and 2001. (See Exhibit A to Plaintiff's Complaint.)
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4. By Grievance Form dated July 27, 2000, Defendants purported to appeal the grievance
of Defendant Wiser to binding arbitration in accordance with Step D of the contractual grievance
procedures of the Police Contract. (See Exhibit B to Plaintiff's Complaint.)
5. The subject matter of the Defendants' grievance upon which they now seek binding
arbitration is not arbitrable under the Police Contract for the following reasons, among others:
a. Nowhere in the Police Contract is the subject matter of dismissal, removal
or discipline of police mentioned, referenced or discussed;
b. By the clear language of the Police Contract and by obvious omission, the
Police Contract did not intend to encompass the matter of dismissal, removal
or discipline of police;
c. The removal of Defendant Wiser as a police officer is not a "grievance" as that
word is defined in Exhibit C of the Police Contract; and
d. "Just cause" is not a standard recognized in the Police Contract that serves as
a basis for the dismissal, removal or discipline of police.
6. For the reasons set forth above, an arbitrator has no authority to address the question
of whether there was just cause for Defendant Wiser's removal.
7. For the reasons set forth above, injunctive relief is appropriate to abate and enjoin the
binding arbitration procedure initiated by the Defendants.
8. For the reasons set forth above, immediate and irreparable harm not compensable by
damages will result if the binding arbitration procedure initiated by Defendants continues to
conclusion.
9. For the reasons set forth above, greater injury will be done by refusing a preliminary
. njunction as requested herein than by granting it.
LAW OFFICES
SNELBAKER,
BRENNEMAN
Be SPARE
10. For the reasons set forth above, the grant of an injunction will not adversely affect
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the public interest, but will restore the status quo.
11. The arbitration action sought to be restrained by Petitioner is actionable and the
requested relief is reasonably suited to abate such activity.
12. Injunctive relief is appropriate to abate the improper use of binding arbitration
complained of herein.
13. Petitioner's right is clear and the wrong to be remedied is manifest.
WHEREFORE, Petitioner Borough of Mount Holly Springs requests this Court to:
A. Issue a Rule directed to Respondents Troy Wiser and Mount Holly Springs
Police Association to show cause, if any they should have, why preliminary
injunction should not be granted and scheduling a hearing on this Petition;
and
B. After hearing, grant a preliminary injunction by issuing an Order:
1. Enjoining preliminarily the binding arbitration procedure initiated by
the Defendants with respect to the purported grievance of Defendant
Troy Wiser; and
2. Grant Petitioner such other relief as this Court in its discretion deems
just and appropriate under the circumstances.
SNELBAKER, BRENNEMAN & SPARE, P. C.
LAW OfFICES
SNELBAKER.
BRENNEMAN
& SPARE
Date: August 15,2000
BY: ,~~
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Solicitor for Petitioner
Borough of Mount Holly Springs
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LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
VERIFICATION
I verify that the statements made in the foregoing Petition are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section
4909 relating to unsworn falsification to authorities.
~~n~Jt
Borough Council President
Borough of Mount Holly Springs
Date: August 15, 2000
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BOROUGH OF MOUNT HOLLY
SPRINGS,
IN THE COURT OF C01vlMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 00- 5(,'fJ..
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following
pages, you must take action within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and filing in writing with a court your
defenses 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 entered against you by the Court
without further notice for any money claimed in the Complaint or for any other claim 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
(717) 249-3166
SNELBAKER, BRENNEMAN & SPARE, P. C.
Itf~~
By:
Solicitor for Plaintiff
LAW OffiCES
SNELBAKER.
BRENNEMAN
& SPARE
EXHIBIT A
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BRENNEMAN
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BOROUGH OF MOUNT HOLLY
SPRINGS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
NO. 00-
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
COMPLAINT
The Borough of Mount Holly Springs, by its Solicitor, Snelbaker, Brenneman & Spare,
P. C., submits this Complaint and in support thereof avers the following:
1. Plaintiff Borough of Mount Holly Springs (the "Borough") is a Pennsylvania
municipality with a principal office located at 200 Harman Street, Mount Holly Springs,
Cumberland County, Pennsylvania.
2. Defendant Troy Wiser ("Defendant Wiser") is an adult individual residing at 114
South High Street, Newville, Cumberland County, Pennsylvania.
3. Defendant the Mount Holly Springs Police Association (the "Association") is the duly
recognized collective bargaining representative of the police officers of the Borough of Mount
Holly Springs.
4. On June 12, 2000 at a regular public meeting of the Borough Council, the duly elected
corporate authorities of the Borough of Mount Holly Springs, Plaintiff removed Defendant Wiser
as a police officer of the Borough of Mount Holly Springs effective June 12, 2000,
5. Written notice of the removal of Defendant Wiser as a police officer ofthe Borough of
Mount Holly Springs, including a statement of charges, was given to Defendant Wiser by
Plaintiff through letter dated June 13,2000.
LAW OFFICE1.:S
SNELBAKER,
BRENNEMAN
& SPAR~
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6. At the time Defendant Wiser was removed as a police officer in the Borough of Mount
Holly Springs, there existed a police contract between the Plaintiff Borough of Mount Holly
Springs and Defendant Association (hereinafter the "Police Contract") applicable to the calendar
year 2000 and 2001. A true and correct copy of the Police Contract is attached hereto and
incorporated by reference herein as "Exhibit A".
7. On June 19,2000 Defendant Wiser submitted a Grievance Form to the Mayor of the
Borough of Mount Holly Springs, claiming, inter ali!!, that just cause did not exist to warrant the
imposition of his dismissal as a police officer or for discipline of Defendant Wiser of any kind.
8. On June 26, 2000 the Mayor of the Borough of Mount Holly Springs denied the
grievance of Defendant Wiser.
9. On June 26,2000 Defendant Wiser submitted a Grievance Form to the Public Safety
Committee of the Borough Council of the Borough of Mount Holly Springs.
10. By letter dated July 3,2000 the Health, Safety and Welfare Committee, successor to
the Public Safety Committee, notified Defendant Wiser that his grievance had been denied.
11. On July 4, 2000, Defendant Wiser submitted a Grievance Form to the Borough
Council of the Borough of Mount Holly Springs.
12. The Borough Council of the Borough of Mount Holly Springs, by letter dated July
12, 2000 notified Defendant Wiser that his grievance had been denied.
13. On each occasion where Defendant Wiser was advised in writing by the Mayor,
Health, Safety and Welfare Committee and Borough Council that his grievance had been denied,
Defendant Wiser was advised either that a question existed as to whether Defendant Wiser's
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alleged grievance constituted a "grievance" subject to the procedures set forth in the Police
Contract or that the subject matter was not a grievance, and that denying the grievance did not
constitute a waiver of that question.
14. By Grievance Form dated July 27,2000, Defendant Wiser and Defendant
Association purported to appeal the grievance of Defendant Wiser to binding arbitration in
accordance with Step D of the contractual grievance procedures of the Police Contract. A true
and correct copy of the Grivance Form dated July 27, 2000 is attached hereto and incorporated
by reference herein as "Exhibit B".
15. The subject matter of the Defendants' grievance about which they now seek binding
arbitration is not arbitrable under the Police Contract for the following reasons, among others:
a. Nowhere in the Police Contract is the subject matter of dismissal, removal
or discipline of police mentioned, referenced or discussed;
b, By the clear language of the Police Contract and by obvious omission, the
Police Contract did not intend to encompass the matter of dismissal, removal
or discipline of police;
c. The removal of Defendant Wiser as a police officer is not a "grievance" as that
word is defined in Exhibit C of the Police Contract; and
d. "Just cause" is not a standard recognized in the Police Contract that serves as
a basis for the dismissal, removal or discipline of police.
16. For the reasons set forth above, the Police Contract is not susceptible to an
interpretation that covers the dispute that Defendants claim has arisen.
17. For the reasons set forth above, an arbitrator has no authority to address the question
of whether there was just cause for Defendant Wiser's removaL
LAW. OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
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18. For the reasons set forth above, injunctive relief is appropriate to abate and enjoin the
binding arbitration procedure initiated by Defendants.
19. For the reasons set forth above, immediate and irreparable harm not compensable by
damages will result if the binding arbitration procedure initiated by Defendants continues to
conclusion.
20. For the reasons set forth above, greater injury will be done by refusing an injunction
as requested herein than by granting it.
21. ,For the reasons set forth above, the grant of an injunction will not adversely affect
the public interest, but will restore the status quo.
WHEREFORE, Plaintiff Borough of Mount Holly Springs requests this Court to:
a. Enjoin preliminarily and thereafter permanently the arbitration proceeding
initiated by the Defendants with respect to the grievance of Defendant Wiser;
b. Award Plaintiff reasonable counsel fees and costs ofthis litigation; and
c. Grant Plaintiff such other relief as this Court in its discretion deems just
and appropriate under the circumstances.
SNELBAKER, BRENNEMAN & SPARE, P. C.
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L.AW OFFICES
SNEL8AKER.
BRENNEMAN
& SPARE
BY:
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, PA 17055
(717) 697-8528
Solicitor for Plaintiff
Borough of Mount Holly Springs
Date: August 15, 2000
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LAW OFFICES
SNELBAKER.
BRENNEMAN
8: SPARE
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VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section
4909 relating to unsworn falsification to authorities.
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Borough Council President
Borough of Mount Holly Springs
Date: August 15, 2000
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POLlCE CONTRACf FOR THE MOUNT HOLLY SPRINGS POLlCE ASSOCIATION
OFFERED BY THE MOUNT ROLLY SPRINGS BOROUGH
FOR YE.ARS2000,2001,
December 29, 1999
ARTICLE 1- FORM
SECTION 1 - HEADINGS
Any headings preceding !be text of!be several articles hereof are solely for the convenience of
reference and are nor; themselves, operative lenDs of agreement. 8IId are nor intended to affect the meaning,
construcIion or effect of any herein.
SECfION 2 - LANGUAGE
Unless oIherwise prcwided hlS'ein, the mascu1ine pronoun shall include the feminine, the singular
number shall include the plural and vice versa and all officers wtll be included where applicable. Any
differentiation betweell FULL TIME and PART TIME officers wilI be clearly stated.
SECTION 3 - SAVING CLAUSE
In the event hat any provision contained in the Contract is in conflict with any statuIes of the
CommonweaJt!l of Pennsylvania, Feden.! SIlltutes, Feden.! or Slate directives, or rules or regulatims of any
deparllllenQ1 agency of the said Stale or Federal government now in effect et hcreath:r to become effective,
by reasm of the decision of any Court baving jurisdictiClll, and found invalid or unenfOrceable, it shall nor
affect or im\l8ir any of its o1ber terms an provisiOtlS.
ARTICLE IT - RECOGNITION
SECTION I-PARnES
TheBorougb, pursuant to Act 111 (43 P.S. 217.1, etseq.),berebyrecognizelheAssooiatioos
the exclusive collective bargaining representative of ail its police OfIicer employees fet the PlIlJlOSOS of
negotiations wilh respect to their wages, hOUl'S and o1ber terms and conditions of emplO}1llellt by the
Borough.
ARTICLE m - MANAGEMENT
SECTION 1- GENERAL ,
The Borough sball have allll retain, solely and exclusively, all managerial privileges and
responsibilities recognized and established at law.
ARTICLE IV - :HOURS OF WORK AND OVERTIME
SECTION 1- DEFINITIONS AND WAGES
A. WOlU( DAY
The normal workday is established as the twenty-four- (24) hour period commencing at
0701 llcs.and Ending at 0700 hrs.the following wender day.
EXHIBIT A
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B. WORK WEEK
Thenormal workweek is established as the seven ( 7) day period commeucing at 0701 brs. on
Monday 8Ild mding at 0700 hrs. OIl tile following Monday of each c:alendarweok. The offiCCl'S of
the Association will ba!e a forty(40) hours of work as normal work hours to complete a week
C. WORK SHIFT
The emplClY'" as scheduled by the Ma)'Of or his authorized designee l!Stllblmcs the DOJmal work
shift as lilY ten-(10) consecutive hour periods commencing from tile start of such work to.
D. WAGESANDSALARYPROVlSIONS
The wages and salaries anlas doCumented in the attad1ed Exhibit "AU 8I1d shall be a pIlt oflhis
contract heneefonb.
E. OVERTIME RAlES
Overtime rates for all ofticers shall be one and ono-half ( 1-1/2 ) times the esllIblished rate in
ART, IV; SEe. 1; PARA. D. Overtime shaJI be paid whalin officer or chief works in excess of
tI'ie tal (.10 ) hour work day or past the forty hOUl" work week IS defined previously.
F. ON CALL STATUS
The nie oU 1.$0 per houuball be paid for "On Call Status". All on <all3lalUS must be pro-
spproved by the Olier and the Mayer.
ARTICLE V - EMPLOYEE BENEFITS
Employee benefits will be as defined in the fullowlnll pages headed as employee benefits.
ARTICLE VI - GRIEVANCE PROCEDURES
TIle grievance proc:edures outIined in'EXH!Bfl' 'C' wbidl is aaadIed lI1ereto and made
part hereof shall be utllixed by the parties to resoIw any gritMDCeS;
ARTICLE Vll- MODffiCATION PROCEDURE
This c:ootract'may not be modified after lhe start of the term of the contral:l unless agreed
upon by both of tile parties involved.
ARTICLE Vlll-EFFECTIVEDAlE
The effective date of this contral:l shall be January 1, 2000 unlilDec:ember 31, 2001
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EMPLOYEE BENEfITS
this benefit sballllllly be applicable to the full-time police officers empl<ryedby
1he Borough lmless otherwise specifically noted. '
SECTION 1 - LEAVE
A. VACATION LEAVE
Each full time ofIicer shall be entitled to paid vacation leave according to the fOllowing
schedule:
40 hours - AfteJ" CIIle (I) C<lIllplete year of service (during the second year)
80 hours - AfteJ" two (2) complete yelll'S of service to the end of tile fur1b. (4) yelll'.
After four (4) complete years of service, ten (10) hours are added for each year ofservice.
EXAMPLE: During the fifth year of service lIIl officer would be entitled to 90
hOlll:S of vacation.
,Vacation is to be scheduled with tile Chief and approved by tile Mayor or his designee
" li'0lll council if nec:esaary, thirty (30) days in advance. Vacation dates as scheduled may
be 1I1odified wilb theappi'OVal of tile Chief and the Mayor.
NOTE: OFFICERS MAY CARRY ONE WEEK VACATION MOTHE
FOlLOWING CALENDAR YEAR. ANY TIME BEYOND TIfE ONE WEEK wn.L
BB PAlDTOTIfE omCEIi. AT YEAREND.
B. SICK LEAVE
Paid sick leave shall be a=ued by fUll~ police ofIicers at a /lite of one lIIld one half
(1-112) days for each completed month of service. up to a maximum of ninety (90) days
of IIl:l:rUed sick leave.
Any oftk:ei that has three consecutive days off 80S sick leave must submit a doctor'.
excuse upon return to work iJiordel' to receive the 100"10 sick leave pay.
Sic:lt ~ve will have a 90 day ceiling at wbic:h any time over the 90 days will receive 25%
compensatiQJl in the last pay of Ibe yelll'. Any officer wbic:h is DOt scheduled due to
injuty, ie. Workers Compensation will not build sick time IlIItil reinstated to duty.
c.. HOLIDAY LEAVE
the fonowing are holidays to be observed; NEW YEARS DAY, PRESIDENT'S DAY,
GOOD FRIDAY, MIlMORIAL DAY,INDEPENDENCE DA Yi LABOR. DAY,
COlUMJnJS DAY, THANKSGIVING DAY, CHlUSTMAS DAY, aod TIfE
OFl'1CERS BIR.THDA Y
A full time police ofIicer shall be paid Col' aU holidays as desaibed in the
conuact, wbllIher schCldul.ed to _k or not. It is the scheduled employee's desa1'lion OIl
whtther he wishes to work thal day through notification to the c:hieffi:lleen days prior to
the holiday. An ofIicer thal c:hooses to work 011 the holiday will receive 10 hours holiday
straight pay IIId also 10 hours straight pay for the worlced shift .
Any officer working on the holiday will receive the oquiwlent of double the
hOIlI'!y rate aft. the work sbift continues past the 10 hour s=dard.
, The holiday will be recognized (II the adUal day that lllillls wilbout ex~ion.
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PART-TIME OffiCERS WILL ONLY BE PAID OVERTIME IF 1HE HOURS ARE
IN EXCESS OF FORTY HOURS OR MORE THAN TEN HOURS
CONSECUTIVELY.
D. BEREAVEMENT LEAVE
A full time officer shall m:cive three (3) days paid bercavCIDcnt leave, if assigned to duty, upon
the deatho( Illy of the following members of1l1e empIO}'Ce" or spouses immediate filmily:
GRANDPAiRJ!NTS, PARENTS, SPOUSE, CHILD, or SIBLING. The bereavement pay and/or
leave would end OIl the day of fimeral.
E. PERSONAL DAYS
. Each full time officer will have three etI1ergency days which need nOl be scheduled
in advance of lite time off.
. the remaining two days arc required to have a minimum ofthrcc ~ notice fur
approval to case !he replacement of said officer on !he schedule ifnecessary.
F. COMP TIME
At lite cplion of the officer, lite said officer may choose to take comp time nllh... than overtime.
For ""ch hour of overtime, any hours WIlJ:kcd in excess ofllte daily scheduled work shift or in
excess of lite weekly scheduled work shift, time lite officer shal1 t<lCCivc 1-112 hours of comp time
for every hour of overtime worked. Offic8{$ may not _ulate men !han 40 hours of comp
time. Use of camp time will be scheduled willt and approved by the Chief and Ihe Mayor. Use of
the said time will require a minimmn of24 hours notice and shall be gnnted only if anolhet
officer can cover the time the officer iUllquesling to be off. Any hours acc:um1ll!ated at \he end of
the ClIlendar year not used will be paid to the officer at /lie straight time hourly Illte times the
D\IlIlber of remaining hours.
SEC1'ION 2 - INSURANCE
A. HEALTH INSURANCE
Unless hee1\h insurance exists li"om anodler .source, after sixty (60) days of employment, the
Borough shall provide coverage for each full-time empl~ and his filmily with the Mt. Holly
Group Plan (Blue Cross -120 day I Blue Shield major medical $ 1,000,000.00 life-time
maxiJn\llll). If an officer hu coverage li"om an alternate source, helshe may apply fur and receive
of one balf (112) the cosl ofboJougb supplied coverage that has nol beon used by he emp1oyee.
B. LIFE INSURANCE
Lite insurance in the amount of S 25,000.00 shall be provided to 1IIe full-time police officen.
SECTION 3 - USE OF PERSONAL VEHICLES
1. An officer is NOT required to use a personal vehicle for invcstigatcJy or patrol
work provided a Borough police vehicle is available.
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2. Should an officer be ""luired to use a J"I"sonal vehicle because of a Borough
police vehicle is nol available or the nature of1lle duly would be impeded by the
use of the Borough police .chicle, the officer shal1 be reimbursed fur !be we of
Hess vehicle III the tate of $ 0.35 per mile or in 1I1e case of a fixed position, the
use in that siluation shall be reimbursed at a rate of$ 1.00 per hour, based 00 1IIe
greater amount of reimbursement.
3. An officer may be ""luired to usc a peI'SCXllIl vehicle fur the Court atteodance at
and shall be reimbursed at !beIllte of S 0.35 per mile.
SECTION 4 - CLOTHING AND ALLOTTMENTS: FULL & PART TIME
The Borough sltall provide new full-time and part-time officers with all equipmCDt required \>ilb
the Ell(ceptiOll of the individuals service weapon md hoista' tor 1hat weapon to eomply with th.
depu!ment's unirorm policy. Also, all palt-lime officers must pnwide the reimbursement fur th.
psychiillric evaluations in full prior to hiring of each individual c:andidate.
Full time officers may purclwe replacemCDt bolsters tor their service weapon OIl! oftbe clothing
aJlotmCllt mlyafter 1IIcy purch_1I1e initial holster 1hat complies \>ith depIu1mCDt policy. Boots .
\>ill be purchased from clothing alIallnent as needed by full and pert time officers.
The following uniform will be provided fur each new full and part-time officer as listed
below:
FULL- TIME OFFICERS
ONE (1) EACH -Coat (wintor), Light weight jacket, Rain Coat, Campaign Hats (maw and felt)
w{ accessories, Gloves (I pair)
TWO (2) EACH - Neck Ties
THREE (3) EACH - Shirts (SWDIIl.... and winter)
FOUR (4 ) EACH - Slacks
PART-T\MEOmCERS
ONE EACH - Coat (wintor), Light weight jac1cet, Rain coat, Campaign hats (slniw'aod telt), wi
accessories
ONE ( I ) - EACH- Neck tic
TWO (2) EACH - Shirts (summ... and wintor)
1lIREE (3) EACH - Slacks
Aftcc the fin! year of anplDyll!ent: each filii-time officer .ball be permitted $ 575.00 per
yefilf allo-oance fur equipment aod uoifonn$. Eadl part-time officer will be permiUed a percentap
ofS 575.00 per)"OllT based on the numb<< ofhours WOIked fur 1IIe Borough during the last
calendar year, oomparcd to the base hours of a full-time officer (2080 hrs.1 ye:r.rr).
SECTION 5 - AMMUNITION: ALL EMP1-OYED OffiCERS
The Borough shall provide aU ammunition tbat !he dcpanmcnt requires fur their official
usc and required practice.
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SECTION 6 - PROTECTIVE VESTS
the Bcrough shall provide prorective vests as needed for dilly to aIl1lle full-time and
part-time ofii<;c:$ lIIId this item is not to be deducted li"om the offic= clothing allotment.
SECTION 7 - PENSiON PLAN
As provided in Chapter I, Section 41, et seq., the police pension which WoIS established
1IIerein shall no lcnger be subject to 1I1e Social Security Offset as set for1h in Section 48. The
pension will be vested to all officers 011 the twelfth (12) anniversary of their hiring. the retirement
benefit will be calculated at SO% of the officer's average mO!Jlhly psy 4uring the last 36 months
employment. Disability bencfilS of 50% will be provided through the pension plan subject to a
Workmen's Compensation offilet.
THE PENSION PLAN MAY BE LOWERED TO 20 YEARS IF THE OFFICERS AGREE TO
CONTIUBUffi TO THE PENSION FROM EACH OffiCER AFIER THE TWENTY YEARS
AS DESCRIBED BY 1HE STATE PENSION PLAN WHICH CURRENTLY REMAINS AT
TWENTY-FIVE YEARS fOR RETIREMENT.
EXHIBIT" A "
BASE WAGES PER HOUR
CHIEF OF POLICE
PATROLMAN
PART-TIME
PART-TIME (PROBATION)
2000
$16.87
$14.97
$ 12.82
$11.82
2001
17.52
15.62
12.97
11.97
the above wage scale is based on a flat rate ofS .65 fur year 2000, lIIId $ .65 fur yeU 2001, full
time scale. Part time..ages will be based on a tlatrate of$ .15lbr year 2000 and $ .15lbr 2001.
NEwt. Y HIRED OFFICERS:
FULL-TIME
Newly hired officers Bl'erequired to be Att 120 certified and will receive $ .50 less 1han cum:nt
COlllI1lct wage during probation period.
PART-TIME
Newly hired officers are required to be Act 120 certified and will m;eive the part-time wage and
mlUl: be mbjei:t to a probation period of at least six months, but no longer thlll1 one year from the
date ofhire. .
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Part-time candidates must pay fur all psychiatric evaluaticm prior to employment oppClI1UlIities
with 1IIe Borough: Part time candidates will have to go to an assigned physician by the Borougb,
for the medical exam at lite Borough expeIlJe.
LONGEVITY PAY: FULL TIME OffiCERS ONLY
S 175.00 per year with.a $ 2,200.00 ceiling, based on full-time year's service to be paid allor1lle
completion oftbr.... (3) year's full-time llC'Vioe.
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nON PRESIDENT ROUG UNCll.l'lU!SlD
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BORO HSECRETARY MO . LLYSPGSMAYOR
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EXHIBIT -e-
'Grievance Procedure
1. DEF1NITI~S I
A. A -Grie.vance- 11 a d18pute arleinq out of t.he
'interpretation, misapplication or violation of
the term. of. the Agreement..
B. WDay. ,haUlllean working day.
c. -AssocIation Jepreaentative. 11 an appointee of
the Alloclation for the purpole gf partlcipatinq
In the qrlevance procedure.
,1>. -EIIlployer" 11 the JlQrough CQuncU of Hount Bolly
Spring" .
Z. -AI.ociation- il t.he Mount Holly Springe Police
Asaochtlon.
2 . MANNER OF I'ILING
EAch grievance Ihall be aubmitted in writing to the Mayor or
hil del19ne. on a form approved by both parti.. and provided by
the E1nployer. !hI foJ;'ll\ .hall provide for the Inlertion of the
identity of the aggrieved party 'or partie., the date of filing,
the provl.ion of the contract involved, Including t.he particular
.ubparaqraph, and a brief narrative description of the nature of
,the qr1evance, and ahall .pecity the nUle of the aggrieved
party.
3. 'rIME LIMITATIONS
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A.
A qrievanc. not filed within th$ limit. .Ita~lilhed
herein .hall be deemed invalid. '1'henw:nber of" day.
Indicated 'at each step in the procedure' h .
NxlJl1um. There 1. no minimum.
No vrlevance .hall be flIed or any meeting beld to
4i1eu.. the relolutlon of any trievance during the
work day unl... by autud agre_ent.
4. REPLY
B.
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.' 'Any reply ahall be 1n writing. "lb. reply shall be I part of
the form o~ attached thereto. COps... ahall be furnhhd to t.be
grievant, :the,:"uocletlon, an4 ,"0 the Mayor, Chall'l1lal'l of the .-
Public Sa'fat)' CO_1tte~, and rredc!e.nt of ~rou9h Council. '
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5.
STEPS XN THE PROCEDURE
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STEP A. (1) The person or persotls initiating, the alleged
grievance .h~l3 pre.entthe grlevance to the Kayor or hl,
delignee within one week after itl occurrence. The M4yor Ihall
~eply to the grievant ~ithin on. week after the initial
pre,entation of the qrievan~.. In the event there i. I meetin9,
the aggrieved party II\AY be accompanied by a representative of
the Bargaining Age~t at this leve~ of the grlevance procedure.
(2) The'chain of command is as followss grlevant,
MAyor, Borough Council Public safety Committee, Borough
Council. It 1. intended hereby that grievances progre81 through
thil ~hain and be resolved, if ~ssible, at the lowest level.
STEP a. If the action in Step A f.ils to resolve the
qrlevance to the ..tilfaction of the affected partiel. the
grievance lIIay J:le referred to the Employer'81'ubHc Safety
Committee within 4 days of the determination mad. in Step A, and
the. fd.evaT)tl notified in wrlting of the acUon taken. The
fublie Safety Commi~tee Ihall make a decision and shall indicate
--fhdr'disposition to the g-rievAnt within one week after referral
to them.
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STEP C. If the actIon taken at Step B fail. to resolve the
grievance to the .atlsfaction of the affected partie., the
grievance Ihall be referred by the grievant to Borough Council
within five (51 4ays after receiving the report of thl Public
Safety Collllllittell. The IIorcugh Council Ihall advhe the grievant
of it. deci.ion with 15 daYI after receipt of .ubml.,ion. .
STEP D. If the action 1n Step C fail. to resolve the
frlevance to the .atisfaction of the ,rievant, the grievant Illay
refer the qrtevance to binding arbitration 'and 'the ~ployer and
the ASlociation shall each pay one-half (1/21 of the eo.t. of
arbitration. A requelt for binding arbitration, to be
operative, lIIust ba .ade vithin 30 day. of receipt of Jloroug'h
Council'. 4ecisioft.
6. It il contemplated that the Borouqh and the Alsoeiation
shall lllutual1y agree in writing as to the atatelllent of the .
lII&ttu to be arbitrated prior to & bearing and shall attempt .to
eelect an Arbitrator !)y autuel &greelll8nt. 'alling to 40 10,
dther party aay request AM for a 1111: froil which In arbitrator
will be lelected under AU. rul... .'fhe arllitrator .hall cOl'lfllle
,his decidon ~o . partiCUlar aattar: -'bu. .paeified by the
patti88. . . . '.
7. Bach ~'art.y Ihall bear tbe expen~. of it. own vitn....1 and
of ita own representatift.. !be parti88 shall bear equally the
, expense of Ule impartial arbltrator. 'fhe puty ~eddng a
tranicdpt. of the budD, will HU ~. co.t of Iu.e. ..
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8. Copies of the ~ward of the arbitrator made in accordance .
with the jurisdiction of authority under this Agreement shall be
furnished to both partie I within thirty (30) dayi of the hearing
and Ihall bel f~AI and binding on both partie... .
" lIthe ~ployer doee DQt reach a decilion within the time
limits aet forth in the foregoing procedure, the 9rievant ahall
be entitled to move the grievance on to the next Itep. If the
.mployee 40e. not move it to the pext step within the tim.
e.tahli.hed, the last determination ah~ll be conaidered fin.l.
10. 'The arbitrator ahall have authority to interpret and apply
agreement term a but ahall not add to, detract from or alter
agreement terma. If the subject ~tter involvea the Police
Tenute Act, Civil Service atatute., the Local Agency or a~ilAr
l.w. And regulation. and the employee utilize. .uch proces., any
Itepa along the grIevance proc.dur. ahall c.....
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Mount Holly Springs Police Association
Grievance Fonn
Name of Grievant: Officer Troy Wiser
Type of Grievance: Discipline
Date of Discipline: June 26, 2000
Contract Section(s): Article VI, "Grievance Procedures"
Exhibit C "Grievance Procedure"
Explanation: ."
On or about June 19, 2000, the Grievant, Troy Wiser, fIled a grievance with the
Mayor, Robert H. Otto, protesting .his discharge from employment. A true and correct
o:opy of that grievance is attached hereto. The substance of the grievance is as follows:
On June 13, 2000, this Grievant was notified of allegations made by Michelle R.
Gehr and the resulting investigation of those allegations.
As a result of those investigations, this Grievant was charged with conduct
unbecoming an officer and was removed from the Mount Holly Springs police
Department pursuant to the relevant provisions of the Borough Code.
Just cause does not exist to warrant the imposition of dismissal from the police
force or/or discipline of any kind.
The Mayor did not respond to the grievance in a timely fashion. A response
was eventually received denying the grievance. The Grievant appealed the grievance to
the Mount Holly Springs Borough Council Public Safety Committee pursuant to Step B
and Paragraph 9 of the contractual grievance procedure. The Committee issued a
response dated July 3, 2000 denying the grievance. This response provided that the
discharge is not a grievance within the meaning of the collective bargaining agreement.
The Grievant appealed the grievance to the Mount Holly Springs Borough
Council pursuant to Step C of the contractual grievance procedure. Borough Council
denied the grievance on July 12, 2000. The Council's response provided that the
discharge is not a grievance within the meaning of the collective bargaining agreement.
EXHIBIT B
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The Grievant and the Police Association now appeal the grievance to binding
arbitration in accordance with Step D of the contractual grievance procedure. This
appeal of the discharge action is for the reasons set forth above and in the original
grievance. The Borough lacked just cause to terminate this Grievant's employment.
The discipline and dismissal of a police officer is a grievance pursuant to Article
VI, Grievance Procedure, which covers "any grievances" and Paragraph 10 of Exhibit
C, which provides officers with an election of remedies. Officers may challenge
discipline through civil service procedures or the grievance procedure. This Grievant
has chosen the grievance procedure.
Remedy Sought:
Reinstatement to my former position with all back pay and benefits, deletion of
any reference to this matter from my personnel file and any and all remedies deemed
appropriate to make this Grievant whole.
Step D to the Binding Arbitration
OfA. J~ ~ IAJ~
Ofr. Troy Wi
~..JM~,r
olice ASSOCIation
'7- 27- dO
Date
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CERTIFICATE OF SERVICE
I, KEITH O. BRENNEMAN, ESQUIRE, hereby certify that I have on the below date,
caused a true and correct copy of the foregoing Petition to be served upon the person and in the
manner indicated below:
FIRST CLASS MAIL. POSTAGE PREPAID. ADDRESSED AS FOLLOWS:
Troy Wiser
114 South High Street
Newville, PA 17241
Mount Holly Springs Police Associalion
200 Harman Street
Mount Holly Springs, P A 17065
K~~
-
Keith O. Brenneman, Esquire
SNELBAKER, BRENNEMAN & SPARE, P. C.
44 W. Main Street
P. O. Box 318
Mechanicsburg, PA 17055
(717) 697-8528
Solicitor for Petitioner
Borough of Mount Holly Springs
Date: August 15, 2000
LAW OFFICES
SNE::L8AKER,
BRENNEMAN
& SPARE
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82 Pa.
656 ATLANTIC REPORTER, 2d SERIES
not presented. The punitive procedure of
forcing the Commonwealth to drop -all
charges if the Commonwealth concludes that
identifying a confidential informant will jeop-
ardize the informant's safety is not in the
public's interest in prosecuting criminal con~
duct in our society.
Some information concerning the commis-
sion of crimes is simply unavailable through
the normal course of police investigations;
therefore, confidential informants have be-
come a significant asset in combating crimi-
nal conduct, especially in the continuing fight
against the proliferation of drugs. To force
disclosure of the confidential informant's
identity absent a showing by the defendant
that the informant would materially aid the
defendant's case, unnecessarily jeopardizes
the life of the informant and the police offi-
cers who work with him. Requiring less
would simply play into the hands of those
defendants who merely want to learn the
identification of his or her Judas in order to
make the informant his or her next victim.
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,
OPFICE OF DISCIPLINARY
COUNSEL, Petitioner,
v.
Dennis Edwin McARDLE, Respondent.
No. 103 Disciplinary Docket No.3.
Disciplinary Board No. 12 DB 95.
Supreme Court of Pennsylvania.
March 6, 1995.
ORDER
PER CURIAM,
AND NOW, this 6th day of March, 1995,
there. having. been filed with this Court by
Denms EdWIn McArdle his verified State-
me~t of Resignation dated January 11, 1995,
stating that he desires to resign from the Bar
of the Commonwealth of Pennsylvania in ac-
cordance with the provisions of Rule 215,
Pa.R.D.E., it is
ORDERED that the resignation of Dennis
Edwin McArdle be and it is hereby accepted
and he is DISBARRED ON CONSENT
from the Bar of the Commonwealth of Penn-
sylvania; and it is further ORDERED that
he shall comply with the provisions of Rule
217, Pa.R.D.E. Respondent shall pay costs
if any, to the Disciplinary Board pursuant t~
Rule 208(g), Pa.R.D.E.
MONTEMURO, J., is sitting by
designation.
W
O~UYNUMBfRSYsl'fM
,
Editor's Note: The opinion of the Su-
preme Court of Pennsylvania, in Office
of the Disciplinary Counsel v. Marcane,
published in the advance sheet at this
citation, 656 A.2d 82-83, was withdrawn
from the bound volume because a stay
was issued.
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PA. STATE POLICE v. STATE TROOPERS' ASS'N
C\t\lo....f>~ A.ld &3 {Pa. 1",,",,5)
Pa. 83
OFFICE OF DISCIPLINARY
COUNSEL, Petitioner,
v.
Vladimir N. ZDROK, Respondent.
No. 665, Disciplinary Docket No.2.
No. 131 DB 88-Disciplinary Board.
Supreme Court of Pennsylvania.
March 13, 1995.
Prior Report: 538 Pa. 41, 645 A.2d 830.
ORDER
PER CURIAM,
AND NOW, this 13th day of March, 1995,
on certification by the Disciplinary Board
that the respondent, VLADIMIR N.
ZDROK, who was suspended by Order of
this Court dated August 1, 1994, for a period
of six (6) months, has filed a verified state-
ment showing compliance with all the terms
and conditions of the Order of suspension
and Rule 217, Pa.R.D.E., and there being no
other outstanding order of suspension or dis-
barment, VLADIMIR N. ZDROK is hereby
reinstated to active status, effective immedi-
ately.
MONTEMURO, J., is sitting by
designation.
w
o~mNuMBfRSmfM
,
2
PENNSYLVANIA STATE
POLICE, Appellee,
v.
PENNSYL VANIA STATE TROOPERS'
ASSOCIATION, Trooper James
Betancourt, Appellant.
PENNSYLVANIA STATE
POLICE, Appellant,
v.
PENNSYLVANIA STATE TROOPERS'
ASSOCIATION, Trooper Scott
Gibson, Appellee.
PENNSYLVANIA STATE
POLICE, Appellee,
v.
The FRATERNAL ORDER OF
POLICE, Appellant.
Supreme Court of Pennsylvania.
Argued Dec. 8, 1994.
Decided March 21, 1995.
In three cases, state police petitioned for
review of arbitration. awards sustaining
grievances. In first case, the Commonwealth
Court, No. 980 C.D. 1991, 159 Pa.Cmwlth.
489, 633 A.2d 127&, reven;ed and remanded.
In second case, the Commonwealth Court,
No. 2494 C.D. 1992, 159 Pa.Cmwlth. 592, 633
A.2d 1330, affirmed. In third case, the Com-
monwealth Court, No. 620 C.D. 1991, 159
Pa.C~wlth. 628, 634 A.2d 270, vacated
award. Appeals were consolidated. The Su-
preme Court, Nos. 55-57 M.D. Appeal Dock-
et 1994, Cappy, J., held that: (1) essence test
scope of review does not apply to grievanee
arbitration awards involving police or fire
personnel; (2) narrow certiorari scope of re-
view applies to both grievance and interest
arbitration awards involving police or rITe
personnel; and (3) awards were valid.
Orders in first and third cases reversed
and arbitrators' awards reinstated; order in
'&',!~,w.d ~:a.'i'R. ?J'finwcd.
84 Pa.
656 ATLANT[C REPORTER, 2d SERIES
1. Labor Relations <$=>411
"Grievance arbitration" is arbitration
which occurs when parties disagree as to
interpretation of existing collective bargain-
ing agreement.
See publication Words and Phrases
for other judicial constructions and def-
initions.
2. Labor Relations 1F>411
"Interest arbitration" is arbitration
which occurs when an employer and employ-
ee are unable to agree on tenns of collective
bargaining agreement.
See publication Words and Phrases
for other judicial constructions and def-
initions.
3. Labor Relations e=>483
Narrow. certiorari scope of review appli-
cable to arbitration awards involving police
or fire personnel limits reviewing court to
questions regarding jurisdiction of arbitra-
tors, regularity of proceedings, excessive ar-
bitrator's powers, and deprivation of consti-
tutional rights. 43 P.S. 9~ 217.1-217.10.
4. Appeal and Error <$=>836
'~Scope of review" refers to confines
within which appellate court must conduct its
examination, that is, it refers to the matters
appellate court is permitted to examine.
See publication Words and Phrases
for other judicial constructions and def-
initions.
5. Ap)leaI and Error 0$=>836
"Standard of review" refers to manner
in which appellate court conducts its exami-
nation.
See publication Words and Phrases
for other judicial constructions and def.
initions.
6. Labor Relations e::>483
As narrow certiorari test applicable to
review of arbitration awards involving police
or fire personnel sets confines in which ap-
pellate court may conduct its examination, it
sets scope of review and not standard of
review. 43 P.S. gg 217.1-217.10.
7. Labor Relations e::>483
Essence test for review of arbitration
awards as embodied in Uniform Arbitration
Act (UAA) grants far broader scope of re-
view to courts than does narrow certiorari
scope of review. 42 Pa.C.S.A. 'gS 7301-7320.
8. Labor Relations 0$=>462, 479 .
"Essence test" as embodied in Uniform
Arbitration Act (UAA) pennits court to va-
cate arbitrator's award if court finds that
arbitrator's award did not draw its essence
from collective bargaining agreement, that is,
it allows court to question whether award
represents reasonable interpretation of
agreement. 42 Pa.C.S.A. SS 7301-7320.
See publication Words and Phrases
for other judicial constructions and def.
initions.
9. Labor Relations 0$=>483
Essence test scope of review as embod-
ied in Uniform Arbitration Act (UAA) does
not apply to grievance arbitration awards
involving fire or police personnel; rather,
narrow certiorari scope of review applies to
both grievance and interest arbitration
awards. 42 Pa.C.S.A. SS 7301-7320; 43 P.S.
!! 217.1-217.10.
10. Labor Relations 0$=>463
In arbitration involving police or fire
personnel, arbitrator may not mandate that
illegal act be canied out; rather arbitrator
may only require public employer to do that
which it could do voluntarily. 43 P.S.
!! 2[7.1-217.10.
11. Labor Relations 0$=>463
Arbitration award involving police or fire
personnel must encompass only terms and
conditions of employment and may not ad-
dress issues outside of that realm. 43 P.S.
!! 217.1-217.10.
12. Labor Relations e:::.486
Error of law alone will not warrant re-
versal of arbitration award involving police or
fire personnel under narrow certiorari scope
of review. 43 P.S. s~ 217.1-217.10.
13. Labor Relations 0$=>483
'GrievBl1ce arbitration awards ordering
reinstatement of state troopers .as well as
expungement of record of one of troopers
were valid under narrow certiorari scope of
review; acts ordered were acts that state
police could have voluntarily performed and
were not in contravention of statute, and
'"
PA. STATE POLICE v. STATE TROOPERS' ASS'N
Clteas656 A.2d 83 (Pa. J995)
Pa. 85
'i!
.~
;%
awards were related to tenns and conditions
of employment as they concerned suspension
or termination of employment. 43 P.S.
!! 2[7.1-217.10.
Joanna H. Reynolds, Joseph S. Rengert,
for Pa. State Police.
Gary Lightman, for S. Gibson in Nos. 55,
57.
Gary M. Lightman, for J. Betancourt, in
Nos. 56, 57.
Anthony C. Busillo, II, Stephen C. Rich-
man, for amicus-Philadelphia Lodge No.5,
F.O.P.
Thomas W. Jennings, Thomas H. Kohn,
for amicus-Pa. Prof. Fire Fighters Ass'n.
Gary M. Lightman, for F.O.P. in Nos. 55,
56.
Before NIX, C.J., and FLAHERTY,
ZAPPALA, PAPADAKOS, CAPPY,
CASTILLE and MONTEMURO, JJ.
OPINION OF THE COURT
CAPPY, Justice.
[1,2] These three appeals were consoli-
dated for review as they all raise a single
identical issue: whether the Commonwealth
Court applied the correct scope of review
when it reviewed these Act 1111 grievance
arbitration 1 awards.
For the reasons diScussed below, we find
that the Commonwealth Court applied the
incorrect scope of review. We therefore re-
verse the Commonwealth Court's orders in
the Betancourt and DiRaimo cases and rein-
state the arbitrators' awards, and affirm the
Commonwealth Court's disposition of the
Gibson case.
1. Act of June 24,1968, P.L. 237, as amended. 43
P.S. M 217.1-217.10. Act III applies only to
police and fire personnel.
.1
2. "Grievance arbitration" is the arbitration
whi..cl\. QCO.ln. wheu ~ ';)arti.es. r1.isag\:ee as to the
interpretation of an existing collective bargaining
agreement. "Interest arbitration" is the arbitra-
tion which occurs when the employer and em-
ployee are unable to agree on the terms of a
collective bargaining agreement. Township of
Moon v. Police Offu:ers of the Township of Moon,
508 Fa. 495, SOl. n. 5. 498 A.2d 1305. 1308, n. 5
(1985).
The Betancourt Appeal
Trooper James Betancourt was charged
with Unbecoming Conduct for exposing his
penis while on duty at troop headquarters
during a jovial conversation with other state
troopers. For this incident, Trooper Betanc-
ourt was placed on restricted duty and a
court martial was scheduled. The court mar-
tial was held, and Trooper Betancourt re-
ceived a thirty day suspension without pay.
Trooper Betancourt later appealed this disci-
pline through the contractual grievance pro-
cedure.
The arbitraror deteTmined that Trooper
Betancourt's conduct did not squarely fit the
definition of "Unbecoming Conduct," and
that in any event Trooper Betancourt was
adequately punished by performing janitorial
work for the two months he was on restricted
duty. The arbitrator awarded Trooper Be-
tancourt lost wages and ordered that his
record be expunged. The Pennsylvania
State Police ("State Police") appealed to the
Commonwealth Court. In its appeal, the
State Police urged the Commonwealth Court
to -revisit the issue as to what is the proper
scope of review for an appeal of an Act 111
grievance arbitration award.
[3-6] In its opinion, the Commonwealth
Court recognized that the scope of review
applicable to Act 111 interest arbitration
awards was in the nature of narrow certiora-
ri. Pennsylvania State Police v. Pennsylva-
nia State Troopers' Association (Betanc-
ourt), 159 Pa.Commw. 489, 633 A.2d 1278
(1993). The narrow certiorari scope of re-
view limits a reviewing court to questions
regarding: (1) the jurisdiction of the arbitra-
tors; (2) the regularity of the proceedings;
(3) an excess of the arbitrator's powers; and
(4) depRvation of constitutional rights.3,4
3. Soon after Act 111 was enacted, we reviewed
an Act III interest arbitration award, and de-
clared that the narrow certiorari scope of review
was applicable. Washington Arbitratiol"l Case.
436 Fa. 168, 174, 259 A.2d 437. 441 (l969). We
note now that we did not circumscribe our hold-
ing in Washil"lgcon Arbitration so that it would
apply only to interest arbitration awards.
4. The narrow certiorari test has sometimes been
referred to as a "standard of review" by this
Court and lower courts; this is incorrect. As
this Court recently set out in Morrison v. COn-!-
monwealth. Department of Public Welfare, 538
86 Po.
considered the discipline administered to be
so late that the motivational ~pect of disci-
pline was lacking. The arbitrator directed
the State Police to reinstate Trooper Gibson
immediately_ without hackpay hut with full
seniority. The State Police appealed to the
Commonwealth Court.
Citing its own recent Betancourt opinion
as support, the Commonwealth Court applied
the essence test. The court sustained the
arbitrator's award, declaring that it had
drawn its essence from the collective bar-
gaining agreement.
656 ATLANTIC REPORTER, 2d SERIES
[7,81 The Commonwealth Court went on
to state that the scope of review employed by
courts to review Act 111 grievance arbitra-
tion awards should not be narrow certiorari,
but rather should he the essence test scope
of review as embodied in the Uniform Arbi-
tration Act E"UAA"),5 The essence test
grants a far broader scope of review to the
courts than does the na1TQW certiorari scope
of review. The essence test permits a court
to vacate an arbitrator's award if the court
finds that arbitrator's award did not draw its
essence from the collective bargaining agree-
ment; in other words, the essence test allows
a court to question whether the arbitrator's
award represents a reasonable interpretation
of the collective bargaining agreement.
Cou'fliy of Centre v. Musser, 519 Pa. 380, 548
A.2d 1194 (1988).
The Commonwealth Court rested its con-
clusion as to the appropriate scope of review
upon its understanding that the UAA, and
not Act Ill, authorizes grievance arbitration
for police and' fire personnel. Thus, the
Commonwealth Court concluded, as the UAA
established grievance arbitration, its scope of
review applied.
The Commonwealth Court then deter-
mined that the arbitrator's decision was not
drawn from the essence of the collective bar-
gaining agreement, and reversed the arbitra-
tor's award.
The Gibson Appeal
Trooper Scott Gibson was progressively
disciplined, and ultimately discharged, for vi-
olating State Police regulations. The viola-
tions were connected with his failure to pay
his debts, his issuance of bad checks, and his
failure to file reports properly. Trooper Gib-
son filed a grievance over his dismissal.
The arbitrator found that Trooper Gibson's
offenses did not constitute extremely egre-
gious behavior. Additionally, the arbitrator
Pa.. 122. 646 A.2d 565 (1994), "scope of review"
and "standard' of review" are two distinct legal
concepts. "Scope of review" refers to "'the
confines within which an appellate court must
conduct its examination.' (citation omitted). In
other words, it refers to the matters (or "what")
the appellate court is permitted to examine." leL
at -,646 A.2d at 570. "Standard of review,"
on the other hand, "refers to the manner in
PA. STATE POLICE V. STATE TROOPERS' ASS'N
Clleu656 A.2d 83 (Pa. 1995)
pay. The Commonwealth Court vacated the Second, the Commonwealth Court in Be-
arbitrator's award and reinstated the order tancourt was also inCOlTect in stating that
dismissing Trooper DiRaimo.7 this Court established the UAA as the pro-
genitor of Act 111 grievance arbitration in
Chirico and Toumship of Moon v. Police
Officers of TO'WI'/,Ship of Moon, 508 Pa. 495,
498 A2d 1305 (1985). Neither case provides
justification for the court's views. Chirico
could not support the proposition that "[u]ntil
the enactment of the Uniform Arbitration
Act in 1980, a governmental body was With-
out authority to enter into a grievance arbi-
tration procedure[.]" Betancourt, 159 Pa.
Commw. at 503, n. 13, 633 A.2d at 1285, n. 13.
Chirico declared that a grievance must be
arbitrated in accordance with Act 111. Chir-
ico, 504 Pa. at 78-79, 470 A.2d at 474. As
noted above, the UAA was not mentioned in
Chirico. TO'I.UT!3hip of Moon also provides no
support for the Commonwealth Court's prop-
osition. In Township of Moon, we focused
on the issue of whether it was pernrissible for
an Act 111 grievance arbitration panel to
decline to follow some of the procedures set
forth for interest arbitration in Section 4 of
Act 111, and instead follow some of the pro-
cedures set forth in the UAA.IO We deter-
mined that a grievance arbitration panel
need not conform in all particulars to the
procedures set forth in Section 4. We rea-
soned that while tl:le procedures within Sec-
tion 4 are specifically applicable to interest
arbitration, there is no such specific direction
that they should apply to grievance arbitra-
tion. Furthermore" we noted that grievanc.e
arbitration procedures could deviate from
Section 4 on such particulars as the number
of arbitrators to be on the panel as "there is
nothing unique about a tripartite arbitration
panel [which is mandated by Section 41 that
Discussion
[9] In these appeals, we are presented
with the question of what is the proper scope
of review for an Act 111 grievance arbitra-
tion.8 The Commonwealth Court in Betanc-
ourt stated that the UAA's essence test is
the proper scope of review; the State Police
now urges this Court to adopt the Common-
wealth Court's conclusion.
The conclusion of the majority of th~ Com-
monwealth Court in Betancourt is based on
the assertion that the courts of this Common~
wealth have declared that Act 111 does not
allow grievance arbitration, and that the only
authorization for grievance arbitration for
police and- fire personnel comes from the
UAA. Therefore, the Commonwealth Court
concluded, since it is the UAA that validates
grievance arbitration, its essence test scope
of review applies. The Commonwealth Court
was in error.
The DiRaimo Appeal
While returning from a police training ses-
sion, Trooper Joseph DiRaimo placed $10
worth of gasoline in the state vehicle he was
driving and $5 worth of gasoline in the per-
sonal vehicle his wife was driving; both pur.
chases were placed on a Commonwealth
credit card. Trooper DiRaimo did not repay
the $5. When Trooper DiRaimo's act was
discovered, he was charged with the sum~
mary offense of making unauthorized use of
a credit card.6 Trooper DiRaimo pled guilty
to this charge.
Court martial proceedings were instituted.
Trooper DiRaimo pled guilty, and he was
dismissed. Trooper DiRaimo then requested
grievance arbitration.
The arbitrator sustained the grievance,
and reduced the discipline to a fifteen-day
suspension without pay. The arbitrator rea-
soned that Trooper DiRaimo did not act like
one who had the selfish nature of a thief and
thus should not be discharged.
The Commonwealth Court, again citing Be-
tancourt, applied the essence test. The
court held that the arbitrator had failed to
conform to the essence of the collective bar-
gaining agreement when he reduced the dis-
cipline to a fifteen-day suspension without
First, the Commonwealth Court's percep-
tion that the courts of this Commonwealth
have specifically held that Act 111 does not
authorize grievance arbitration rests on Alle-
gheny County Firefighters, Local 1038 v. Al-
legheny County, 7 Pa.Commw. 81, 299 A2d
60 (1973). Its reliance on this case is mis-'
placed. Ten years ,after Allegheny County
Firefighters, this Court plainly declared in
Chirico v. Board of Supervisors for Newton
Township, 504 Pa. 71, 78-79, 470 A.2d 470,
474 (1983) that it was Act 111 that authorized
grievance arbitration; there was no mention
of the UAA in Chirico.9
7. The implementation of the Commonwealth
Court's decision was stayed pending disposition
of this appeal.
8. We havejurisdiction over this matter pursuant
to 42 Pa.C.S. 9 724(a).
which (or "how") that examination is conduct-
ed." ld. As narrow certiorari sets the confines
in which an appellate court may conduct its
examination, it sets a scope of review, and not a
standard of review.
9. After Chirico was handed down, Allegheny
County Firefighters was referenced three times
for its proposition that Act III does not autho-
rize grievance arbitration. Two of those times,
the citing courts declared that this proposition
was no longer valid in light of Chirico. Town-
ship of Moon v. Police Officers of the Township of
Moon, 83 Pa.Comrow. 14, 477 A.2d 29 (1984);
5. 42 Pa.C.S. 99 7301-7320.
6. 18 Pa.C.S. 9 4106(a)(I)(iv).
Pa. 87
Muni~ip,!lity of Penn Hills v. Municipality of
Penn Hills Police, 90 Pa.Commw. 356, 495 A.2d
637 (1985). The third time Allegheny Count,.
Firefighters was cited for this proposition was by
the Commonwealth Court in Betancourt.
10_ Section 4 is specifically addressed to the man-
ner in which an interest arbitration panel is to be
fonned and its business is to be conducted. Sec-
tion 4 sets forth direction on such matters as the
number of arbitrators to be on the panel, how
the arbitrators are to be chosen, and the timing
for each stage of the arbitration process. This
section, however, does not address judicial re-
view of these arbitration awards.
88 Pa.
65<l ATLANTIC REPORTER, 2d SERIES
P A. STATE POLICE v. STATE TROOPERS' ASS'N
Clte....6Sli A.2d 83 (Pa. 1995)
Pa. 89
would make it more suitable for grievance
arbitration than other forms of binding arbi-
tration. . .." Township of Moon, 508 Pa. at
509, 498 A2d at 1312. Thus, we allowed that
the UAA's procedures could be used to de-
tennine such matters as the number of arbi-
trators to be employed without offending Act
111. We did not, however, make any state-
ments which could be construed as giving
support for the proposition that it was the
UAA, and not Act 111, that gave authority
for grievance arbitration under Act 111.11
Thus, since the UAA is not the progenitor of
Act 111 grievance arbitration, we reject the
Commonwealth Court's reasoning and con-
clusion.
The State Police argues that the essence
test as set forth in the UAA is applicable to
grievance arbitration; however, this argu-
ment does not parallel the reasoning of the
Commonwealth Court in Betancou1i.
The State Police notes that the DAA and
its essence test apply to grievance arbitra~
tions so long as its provisions are consistent
with any statute regulating labor and man-
agement relations.12 The State Police posits
that the UAA is consistent with Act 111 as to
the seope of review for grievance arbitration
awards. It reasons that since Act 111 does
not specifically provide for grievance arbitra-
tion procedures, the Act therefore does not
provide a scope of review for grievance arbi-
tration awards. Thus, the State Police con-
cludes, since there is a void within Act 111 as
11. Township of Moon confined itself to discuss-
ing how a grievance arbitration panel could
properly deviate from Section 4 of Act 111, the
section covering composition and methods of a
grievance arbitration panel, and how the panel
could conform to the UAA's provisiol1$ in these
matters. Section 4 concerns the procedures to
be employed; it does not, however, touch upon
judicial review of arbitration awards. Scope of
review was not discussed in Township of Moon.
We now make it clear that Township of Moo"
should not be read as condoning the tJAA's es-
sence test as the scope' of review for Act III
grievance arbitration awards.
12. Section 7302(b) of the UAA provides that
"[tJhis subchapter shall apply. .. only where the
arbitration pursuant to this subchapter is consis-
tent with any statute regulating labor and man-
agement relations." 42 Pa.C.S. !i 7302(b).
13. Where the legislature's intent is questioned,
this Court is instructed to look to the occasion
to this matter, there is nothirig within Act
111 with which the UAA's essence test could
be inconsistent; therefore, the UAA's es-
sence test is applicable as per 42 Pa.C.S.
! 7302(b).
We are not persuaded by the argument of
the State Police. Act 111 is not devoid of
direction on this issue. In the first section of
Act 111, the legislature plainly declared that
"policemen or firemen ... shall have the
right to an adjustment or settlement of their
grievances or disputes in accordance with the
terms of this act." 43 P.S. g 217.1. The
legislature thus expressed the unqualified in-
tent that issues relating to grievance resolu-
tion be covered under Act 111. Arguably,
this intent is obscured by the legislature's
failure to provide as detailed a mechanism
for grievance arbitration as it did for interest
arbitration. To determine whether the legis-
lature intended that grievance arbitration
awards have a different scope of review from
interest arbitration awards, we must review
the history behind Act 111.13 From this
review, we conclude that there is no justifica-
tion for establishing a scope of review for Act
111 {l'I"i2vance arbitration awards which dif-
fers from the scope of review for Act 111
interest arbitration awards.
Prior to the passage of Act 111, police and
fire personnel were prohibited from striking
and had no rights to collective bargaining.
Act of June 30, 1947, P.L. 1183, 43 I:'.S.
g 215.1 et seq. ("Act of 1947").14 By the late
1960s, the failure of labor relations law to
protect the rights of public employees had
led to illegal strikes and a general break-
down in communication between public em~
ployers and their employees; the system was
in clear need of revision.
In the late 1960s -and early 1970s, the
legislature enacted -sweeping refonns of pub-
lic labor relations law. The law relating to
police and fire personnel, whose services are
so vital to an ordered society, was addressed
first. Act 111 was created to strike a more
perfect balance between the need of the
Commonwealth to insure public safety and
the rights of the worker. To protect the
need of the Commonwealth, police and fire
personnel were still denied the right to
strike. 43 Pa.C.S. g 215.2. The rights of
the worker were to be safeguarded through
collective bargaining rights and arbitration
provisions. The interests of labor and man-
agement, as well as those of the general
public, were to be safeguarded by a provision
which forbad appeals from an arbitration
award.15 This swift resolution of disputes
decreased the chance that the workforce
would be destabilized by protracted litiga-
tion, a state hannful to all parties.
We have recognized that this restraint on
judicial activism is the linchpin of the Act,
stating that "[an Act 111 arbitration panel's]
resolution of the dispute must be sure and
swift, and much of its effectiveness would be
lost if the mandate of its decision could be
dehiyed _indefinitely through protracted liti-
gation." Washington Arbitration, 436 Pa. at
and necessity for the enactment of the statute in
question, the circumstances WIder which it was
enacted, the mischief to be remedied and the
object to be obtained. I Pa.C.S. !i 1921(c).
IS. Section 7 of Act III states that "[n]o appeal
[from an arbitration award] shall be allowed to
any court." 43 P.S. !i 217.7(a).
We nared in Wa.f;h,>Jg.t.m:t A.~.N!r.rJ!w.>J. SJJpTJJ,
that, notwithstanding!i 217. 7(a), there is a limit-
ed right of review in the nature of narrow certio-
rari. The legislature seems to have tacitly ap-
proved of the narrow certiorari scope of review.
it was well aware of Washington Arbitration and
its progeny when it enacted the amendments to
Act 111 in 1974, amendments which repealed
Act 111 in part without modifying the scope of
review set forth in Washington Arbitration.
14. Act of 1947 also provided for negotiated set-
tkmeat ol gn'e'wm:e;,-; we fuund tlW; law ro be
an unconstitutional delegation of legislative pow-
er, however, insofar as it allowed arbitrators to
compel municipalities to enact legislation. Erie
Firefighters v. Gardner, 406 Pa. 395,178 A.2d 691
(1962).
Subsequently, an amendment to Article 3, Sec-
tion 20 (now renumbered as Article 3, Section
31) of the Pennsylvania Constitution was present-
ed to and passed by the electorate. This 1967
Amendment, paving the way for Act Ill, allowed
the legislature to promulgate statutes which
would provide for binding grievance and interest
arbitration between police and fire personnel
and their public employers.
'I
16. We have not, until today, explicitly stated that
the scope of review for an Act 111 grievance
arbitration award is narrow certiorari. As both
parties note, we did grant review of a Common-
wealth Court decision which had expressly stated
173, 259 A.2d at 440 (reviewing an interest
arbitration award). Almost fifteen years la~
ter, this Court eschewed judicial interference
in grievance arbitration stating that the ob-
jective of Act 111 "would be completely fl1ls-
trated if we were to impose, by judicial fiat, a
layer of court intervention." Chirico, 504 Pa.
at 79, 470 A.2d at 475. See also Appeal of
Upper Providence, 514 Pa. 501, 511, 526 A.2d
315, 320 (1987); Guthrie v. Borough of Wil~
kinsburg, 508 Pa. 590, 499 A.2d 570 (1985).
The legislature's intent was to prevent Act
111 arbitration awards from miring down in
litigation. We are not persuaded that the
legislature intended grievance arbitration
awards to be subject to broader judicial re-
view than are interest arbitration awards.
There is no indication, either in the Act itself
or in the history of the Act, that the legisla-
ture intended appeals from grievance arbi-
tration awards to be subject to greater judi-
cial involvement than interest arbitration
awards. We will not now allow a scope of
review which is markedly broader than nar-
row certiorari for Act 111 grievance arbitra-
tion. To do -so would allow the courts to
interfere impennissibly with the legislative
scheme as the courts would be able to alter
Act 111 arbitration awards by means of an
unauthorized expansion of the proper scope
of review. Such a result would I1ln counter
to the legislature's intent. Thus, we hold
that the proper scope of review is nan-ow
certiorari.16,17
& stated above, the narrow certiorari
scope of review limits courts to reviev,.;ng
i.
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that the narrow certiorari scope of revicw is
applicable to Act 111 grievance arbitrations.
Fratenlal-Drder of Police Lodge. NO.5 v. City or
Philadelphia (Bojanowski), 137 Pa.Commw. l,
586 A.2d 459 (1989). We per curiam o.ffi,med
(with Larsen and Cappy, JJ., dissenting), howcv-
er, and did not discuss whether the Common-
wealth court appiied the correct scope of revicw.
Fraternal Order of Police, Lodge No.5 (BojmlO\\'-
ski) v. City o{Philadelphia, 526 Pa. 301. 586 A.ld
355(1991).
17. We reaffirm today our statement in Upp~r
Providence that the UAA's essence test is incon-
sistent with the narrow certiorari scope of r~.
view. Appeal of Upper Providence, 514 Pa. at
511, 526 A.2d at 320. Thus, as the essence tcst b
inconsistent with the appropriate scope of re-
view. the UAA's provisions dictate that it cannot
apply. 42 Pa.C.S. !i 7302(b).
90 Pa.
trators' awards, and affirm the Common-
wealth Court's order -in the Gibson case.
. .656 ATLANTIC REPORTER, 2d SERIES
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, supra.
The only question presented here is whether
the arbitrators exceeded their powers in ren.
dering their decisions.
[10-12] An arbitrator's powers are limit-
ed. He or she may not mandate that an
illegal act be carried out; he or she may only
require a public employer to do that which
the employer could do voluntarily. Washing.
ton Arbitration, supra; Upper Providence
Police, 514 Pa. at 514, 526 A2d at 321. For
example, this Court found in Upper Provi-
dence that the arbitrator had exceeded his
powers when he ordered the municipality to
reduce retirement benefits for former and
present employees as the order violated a
section of the Home Rule Act. The munici-
pality could not be ordered to do an act
which it could not do voluntarily. Upper
Providence, 514 Pa. at 515--516, 526 A2d at
322. Furlhennore, the award must encom-
pass only terms and conditions of employ~
ment and may not address issues outside of
that ream. Wa.shington Arbitration, 436
Pa. at 176-177, 259 A.2d at 442. An eITar of
law alone will not wan-ant reversal under the
narrow certiorari scope of review. Appeal of
Upper Providence, 514 Pa. at 515, 526 A2d
at 322.
[13] The arbitrators' awards here in
question were not illegal. The reinstatement
of Troopers Gibson and DiRaimo, as well as
the expungement of Trooper Betancourt's
record, were acts which could have been
voluntarily performed by the State Police
and were not in contravention of a statute.
Furthennore, the awards were certainly re-
lated to the terms and conditions of employ~
ment as they concerned the termination or
suspension of employment. Therefore, we
hold that the arbitrators did not exceed their
powers.
We thus :tind that the arbitrators' awards
withstand scrutiny under the narrow certio-
rari scope of review. Accordingly, for the
reasons stated herein, we reverse the Com-
monwealth Court's orders in the Betancourt
and DiRaimo cases and reinstate the arbi-
PAPADAKOS, J., did not participate in
the decision of this case.
]
MONTEMURO, J., is sitting by
designation.
w
o~mNUMBERSYSTEM
,
COMMONWEALTH of Pennsylvania,
Appellee,
v.
Shawn WALKER, Appellant.
Supreme Court of Pennsylvania.
Argued Oct. 18, 1994.
Decided March 23, 1995.
Defendant was convicted of murder in
the first degree, aggravated assault, and oth-
er offenses and was sentenced to death after
trial in the Court of Common Pleas of Phila-
delphia County, Criminal Division, at 2770-
2776 May Term 1991, Eugene H. Clarke, Jr.,
J. On automatic direct appeal, the Supreme
Court, No. 43 Capital Appeal Docket, Cas-
tille, J., held that: (1) evidence was sufficient
to show that defendant acted with malice
aforethought and specific intent to kill and
not under influence of sudden and intense
passion; (2) evidence supported finding at
suppression hearing that confession was vol-
untary despite ingestion of pills; (3) defen-
dant failed to show ineffective assistance of
counsel; (4) death penalty statute is not un~
constitutional; and (5) imposition of death
penalty was not product of passion, prejudice
or any other arbitrary factor and was not
excessive or disproportionate.
. Affirmed.
P.. 91
COM. v. WALKER
Cite as 656 A.2d 90 (Pa. 1995)
then broke into the house and fatally shot
person there twice while he slept, and after
stating intent to kill former girlfriend, shot
her t\vice in the head was sufficient to estab-
lish that defendant acted with malice afore-
thought with specific intent to kill, rather
than as result of mistaken belief that he was
defending himself.
1. Criminal Law <$=>1134(3)
Supreme Court must conduct indepen-
dent review of sufficiency of the evidence in
all cases where death penalty has been im-
posed.
2. Criminal Law <$=>1144.13(3, 5), 1159.2(7)
Test for sufficiency of evidence claim on
appeal is whether the evidence, and all rea-
sonable inferences drawn therefrom, viewed
in light most favorable to the Commonwealth
as verdict winner, is sufficient to establish
that jury could have reasonably determined
that all the elements of the offenses were
established -beyond a reasonable doubt.
3. Homicide <$=>22(1)
Criminal homicide constitutes murder in
the first degree when killing is committed
intentionally, by means of poison, or by lying
in wait. or by any other _ kind of willful,
deliberate and premeditated killing. 18 Pa.
C.S.A. , 2502.
4. Homicide <$=>145
In murder prosecution, use of deadly
weapon on vital part of the body is sufficient
to establish specific intent to kill.
5. Homicide <$=>230, 239
Evidence in murder prosecution was suf~
:ticient to sustain conviction despite claim that
defendant was acting under heat of passion
when he broke into girlfriend's home after
discovering another man was former girl-
friend's new boyfriend; claim was inconsis-
tent with defendant's trial testimony that he
had previously learned about former girl-
friend's possible new relationship and that he
acted in self-defense while he was about to
leave, and even if defendant was acting under
heat of passion at time he repeatedly made
threatening phone calls, sufficient amount of
time for cooling had elapsed between then
and actual murder, especially where defen-
dant waited in his car for extended period of
time before the killing. 18 Pa.C.SA
g 2503(a).
6. Homicide <$=>231
Evidence in murder prosecution that, af-
ter defendant threatened to kill his ex-girl-
friend, he drove to her residence and waited
in his car for an extended period of time, and
7. Criminal Law e=>1159.2(9), 1159.4(2)
Weight of evidence is exclusively for
finder of fact, who is free to believe all, part,
or none of the evidence and to determine
credibility of witnesses, and appellate court is
barred from substituting its judgment for
that of the finder of fact.
8. Criminal Law e=>1134(3), 1158(4)
Standard of review in addressing ,chal-
lenge to trial court's denial of suppression
motion is whether the factual :tindings are
supported by the record and whether legal
conclusions drawn from those facts are cor-
rect.
9. Criminal Law Q;::>531(3)
Record supported denial of motion to
suppress defendant's confession despite con-
tention that it was not knowing and volun-
tary because defendant was still suffering
from effects of pills he ingested before admit-
ting himself to hospital to receive treatment
for stomach pains, where, by defendant's own
admission at time of intelTOgation, he was
not under the influence of any mind altering
substance, three police officers testified that
defendant never appeared to be under the
influence of alcohol or drugs, and physician
who was aware that defendant had taken
overdose of drugs felt that defendant was
sufficiently-coherent and well enough to war-
rant his release from hospital.
10. Criminal Law Q;::>641.13(1)
When asserting ineffective assistance of
counsel, defendant must demonstrate that:
underlying claim is of arguable merit; partic-
ular course chosen by counsel did not have
some reasonable basis designed to effectuate
defendant's interest; and counsel's ineffec-
tiveness prejudiced defendant. U .S.C.A.
Const.Amend. 6.
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94 Pa.
575 ATLANTIC REPORTER, 2d SERIES
'}
Accordingly. 1 would reverse the order of
Superior Court and would reinstate the or-
der of the Court of Common Pleas of Mont.
gomery County.
McDERMOTT and PAPADAKOS, JJ.,
join this dissenting opinion.
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McDERMOTT, Justice, dissenting.
The question here is whether appellee's
partnership interest in a law firm is a
reachable asset for equitable distribution.
Appellee contends it is not because under
the terms of his partnership agreement his
interest is limited to entitlements only
available upon withdrawal from the part-
nership and that short of dissolution he has
no larger ownership of its ne~ worth. The
creation of assets during marriage is eon-
sidered the product of the common effort
of both spouses. Appellee's efforts in cre-
ating the net worth. of the partnership was
therefore the effort of both husband and
wife. The husband now says that effort
could only be realized if the partnership is
dissolved. Despite long life" everyone and
everything is mutable, subject to change in
person, place and condition: The partner-
ship in question, has long prevailed, but yet
must rely upon agreement to continue. It
can be dissolved by its members for their
own reasons and what was, upon a given
day, will no longer stand. Meanwhile,
what the wife contributed remains an asset
of that partnership, but appellee contends
it is subject to his agreement with others.
The partnership's net worth has heen calcu-
lated and appellee's share is known. How
and why he cannot get what he helped
create is from his own choice. What the
wife gave to help his effort is. between him
and her. Appellee's agreement with others
ought not deprive ,her of what exists from
their common effort. Appellee owes to her
what she helped him obtain. He used her
effort to get what he has. She ought not
be defeated because he encumbered it by
agreement with others. I believe his calcu-
lable share is an asset for purposes of
equitable distribution. I pass no judgment
earnings in calculating appellee's interest in the
here upon how it should be apportioned
between them.
LARSEN and PAPADAKOS, JJ., join
this dissenting opinion.
.
0, ~K[YNUMIlUSYllEM
,
COMMONWEALTH of .Pennsylvania,
Appellant (at No.9)
v.
STATE CONFERENCE OF STATE PO.
LICE LODGES OF the FRATERNAL
ORDER OF POLICE, By and Through
its Trustee Ad Litem, Paul McCOM-
MONS.. President, Appellant (at No.8).
Supreme Court of Pennsylvania.
Argued March 8, 1990.
Decided May 11, 1990.
State police bargaining unit declared
impasse in negotiations with State, and in-
voked mandatory and binding arbitration
provisions of Collective Bargaining for Po-
licemen and Firemen Act. The arbitration
panel determined pension 'benefits! autho-
rized grievance procedures as alternative
method to court-martial, and determined
that bargaining unit included all ranks of
police officers through lieutenant colonel
Commonwealth appealed. The Common-
wealth Court, No. 657 C.D. 1988, Doyle, J.,
117 Pa.Cmwlth. 564, 546 A.2d 697, vacated
portions of award, and appea.l and cross
appeal were taken. The Supreme Court,
No. J-57-90, Flaherty, J., held that: (1)
Retirement Code did not preclude arbitra-
tion of pension benefits; (2) C01Umonwealth
Court did not have jurisdiction to rule in
first instance on appropriateness of bar-
gaining unit; and (3) election of remedies
provision, providing grievance arbitration
as alternative method for challenging of-
partnership.
(i:~;"
if
COM. v. CONF. OF STATE POLICE LODGES
cu... u !1! A..2d 94 (Va. 1990)
Pa. 95
fenses subject to court-martial proceedings,
was valid and enforceable.
Reversed.
1. Labor Relations €=o178, 249
Provision of Pension Code stating that
no collective bargaining agreement be-
tween Commonwealth and its employees
shall be construed to change provisions of
Retirement Code does not prohibit bargain-
ing over pension benefits, nor does it pro-
hibit pension benefits from being affected
by arbitration awards, but rather, prohibits
only collective bargaining agreements from
determining pension rights. 71 Pa.C.S.A.
! 5955.
2. Lahor Relations <$=>454
Arbitration board in collective bargain.
irlg context has authority, both constitu'
tional and statutory, to issue award affect-
ing police pension benefits, and such award
is mandate to legislature to enact whatever
legislation is necessary to implement or
fund arbitration award. Const. Art. 3,
! 31: 43 P.S. !! 217.1, 217.4.
3. Labor Relations <$=>510
Pennsylvania Labor Relations Board
(PLRB) has exclusive jurisdiction to deter-
mine appropriateness of bargaining unit.
4. Labor Relations <$=>454
In absence of Pennsylvania Labor Re-.
lations Board (PLRB) certification of bar.
gaining unit, arbitration board or court has
no authority to alter unit which had been
contractually definBd.
5. Labor Relations <$=>201, 216
Lack of Pennsylvania Labor Relations
Board (PLRB) certification of bargaining
unit of state police was not defect in unit,
where more than 50% of state police desig-
nated union as their representative, and
proceedings were controlled by Collective
Bargaining for Policemen and Firemen Act,
not Public Employee Relations Act. 43
P.S. ~~ 217.1, 217.1 et seq., 1101.101 et
seq., 1101.602, 1101.603.
I. Act of June 24,1968, P.L. 237, No. 111, 43 P.S.
!i 217.1 et seq., also known as the Collective
6. Labor Relations e=207
Under neither Public Employees Rela-
tions Act (PERA) nor Collective Bargaining
for Policemen and Firemen Act does appel-
late court have jurisdiction to determine
appropriateness of bargaining unit in first
instance. 43 P.S. ~~ 217.1 etseq., 1101.101
et seq.
7. Labor Relations e=207
Under Collective Bargaining for Police-
men and Firemen Act, proper forum for
challenging bargaining unit designated by
state police was Pennsylvania Labor Rela-
tions Board (PLRB), not board of arbitra-
tion or appellate court. 43 P.S. ~ 217.1 et
seq.
8, Labor Relations .s=>461
Award of board of arbitration, permit-
ting grievance arbitration as alternative
method of challenging offenses of state
police which are also subject to court-mar.
tial proceedings, was valid and enforceable.
II
I
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Gary M. Lightman, Anthony C. Busillo,
II, Harrisburg, for appellant at No. 8.
Frank A. Fisher, Jr., Chief Counsel, Of.
fice of Administrator, Jerome J. Shestaek,
James D. Craw-ford, Philadelphia, Steve D.
Shadowen, Harrisburg, for appellant at No.
9.
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Before NIX, C.J., and LARSEN,
FLAHERTY, McDERMOTT, ZAPPALA,
PAPADAKOS and CAPPY, JJ.
:f
OPINION OF THE COURT
FLAHERTY, Justice.
These are cross-appeals by both parties
from a Commonwealth Court order vacat-
ing in part an arbitration award under Act
1111 which decided the terms of employ-
ment of the Pennsylvania State Polke fOf
the contract period July 1, 1988 to June 3D,
1990. We must reverse the judgment of
the Commonwealth Court on three of the
issues raisBd in this Court.
Bargaining for Policemen and Firemen Act.
_~-_{~~~~~3"~~-;~~:~~~~~~~~~~~
96 Pa.
575 ATLANTIC REPORTER, 2d SERIES
~"
In Apn1, 1987, the State Conference of
State Police Lodges of the Fraternal Order
of Police (FOP) initiated collective bargain-
ing for a successor agreement to its 1986-
88 contract with the. Commonwealth which
governed state police personnel throughout
the state. In July, 1987, the FOP declared
an impasse in the negotiations. According-
ly, it invoked the mandatory and binding
arbitration provisions of section 4 of Act
111 which are available when an impasse is
reached between a public employer and its
police personnel during the collective bar-
gaining process.
A board of arbitration was appointed,
and it held four evidentiary hearings and
received sundry documents. Based on this
evidence, the arbitrators awarded increased
benefits to the state police. Among other
things, an across-the-board pay raise of
$2,000 per annum was to be implemented
over the two-year contract. A substantial
increase in pension benefits. was ordered;
conjoined with this term, it was ordered
that if the pension increase were to be
judicially overturned or held to be void, it
would be replaced by an across-the.board
base pay ,increase of $1,000. The arbitra-
tion award also pennitted police officers an
election of remedies when charged with
offenses subject to court-martial proeeed~
ings-tbe officers were henceforth to be
permitted to select grievance arbitration as
an alternative to a court martial. Finally,
the award included all ranks of police offi-
cers up through lieutenant colonel as part
of the bargaining unit which benefitted
from the new agreement.
The Commonwealth l1ppealed to the Com-
monwealth Court, challenging the arbitra~
tion award. A divided en bane panel of the
court vacated portions of the award due to
perceived transgressions of the statutory
limitations on collective bargaining agree-
ments under Act 111. The appeals now
require us to decide whether the Common-
wealth Court erred in holding that: '(1) the
Retirement Code, 71 Pa.C.S. ~ 5955, pre-
cludes Act. 111. arbitration over pension
benefits; (2) the Commonwealth Court had
jurisdiction to rule in the first instance on
2. Act of March 1, 1974, P.L. 125, No. 31, as
, I
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COM. v. CONF. OF STATE POLICE LODGES
Cite as 515 A.2d 94 (Pa. 1990)
fected by arbitration awards. The Retire- It therefore seems clear that an arbitration
ment Code prohibits only collective bar- board has the authority, both constitutional
gaining agreementa from determining pen- and statutory,' to issue an award affecting
sian rights. police pension benefits, and such an award
is a mandate to the legislature to enact
whatever legislation is necessary to imple-
ment 'or fund the arbitration award.
To adopt the Commonwealth's argument
would be to interject into the Retirement
Code the phrase "nor any arbitration
award," so that 71 Pa.C.S. fi 5955 would
read: "Pension rights of State employees
shall be determined solely by this part or
any amendment thereto. and no collective
bargainilig agreement nor any arbitration
award between the Commonwealth and its
employees shaD be construed to change
anY of the provisions herein." It is not
only unnecessary, but it is impermissible,
for us to rewrite the statute in such a
fashion.
Another aspect of the Commonwealth's
argument is answered succinctly in the dis-
senting and concurring opinion by Judge
Craig in the Commonwealth Court:
To contend, as the Commonwealth
does, that pension arbitration for the
state police was eliminated from Act 111
by "the Retirement Code's repealer of Act
111 "insofar as inconsistent with the pro-
visions of section 5955," is to beg the
question. Section 5955 presents no in-
consistency with the binding arbitration
provisions of Act 111, unless words
about arbitration are injected into section
5955, where they cannot lV)W be found.
Common;;e;j,lth v. State Conference of
State Police Lodges of the Fraternal Or.
de1'ofPolice, 117 Pa.Cmwlth."564, 580, 546
A.2d 697, 705 (1988).
We therefore conclude that the arbitra~
tion award granting increased pension ben-
efits to the state police was constitutionally
and statutorily pennissible, and it was er-
ror for the Commonwealth Court to vacate
this portion of the award.
the appropriateness of the bargaining unit;
and (3) the election of remedies provision,
providing grievance arbitration as an alter-
native method for challenging offenses
subject to court-martial proceedings, was
invalid and unenforceable.
Pension Arbitra.biUty
[1] The Commonwealth's first argu-
ment is that there is a statutory prohibition
against the arbitration of pension benefits.
It ~ claimed that, although' Act 111 ap-
pears to permit bargaining over pensjon
benefits, part. of the State Employees' Re-
tirement Code 2 clearly prohibits sueh bene-
fits from being the subject of negotiations
under Act 111. Title 71 Pa.C.S. ~ 5955
states, in pertinent part: "Pension rights
of State employees shall be determined
solely by this Part or any amendment
thereto, and no collective bargaining agree-
ment between the Commonwealth and its
employees shall be construed to change
any of the provisions herein." At the time
of its passage, the State Employees' Retire-
ment Code contained a repealer, section
2(d) of the 'pamphlet law, which stated:
(d) The following acts are repealed in
so far as inconsistent with the provisions
of section 5955 (relating to construc.tion
of part):
Act of June 24, 1968 (p.L. 237, No.
111), entitled 'IAn act specifically llutho-
rizing collective bargaining between po-
licemen and firemen and their public em-
ployers; providing for arbitration in or-
der to settle disputes, and requiring com.
pliance with collective bargaining agree-
ments and findings of arbitrators:'
The Commonwealth argues that this re-
pealer obviously prec.ludes bargaining, pur-
suant to Act Ill, over pension benefits,
which, pursuant to the Retirement Code,
cannot be changed by collective bargaining
agreement but shall be determined solely
by the Retirement Code or amendments
thereto.
We are not persuaded by this argument.
< Quite simply, the statute does not prohibit
bargaining over pension benetits, nor does
it prohibit pension benefits from being af.
amended. 71 Pa.C.S. 9 5101 et seq.
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[2] We have no reason to question or
reject this legislative distinction. Article 3,
section 31 of the Pennsylvania Constitution
explicitly enables arbitrators to force the
legislature to fund the cost of a contract
for the state police. The constitution au-
thorizes the General Assembly to enact
laws
which provide that-the findin~ of panels
and commissions, selected aitd actiqg in
accordance with law for the adjustment
or settlement of grievances or disputes
. .. between policemen and firemen and
their public employers shall be binding
upon all parties and shatz. constitute a
mandate. .. to the lawrriaking bod!/. . . .
of the Commonwealth, with respect to
matters which require legislative action,
to take the action necessary to carry
out such findings.
(Emphasis added.) This the legislature has
done in Act 111, which contains language
tracking that of the state constitution, set
forth in sections one and four of .the act, 43
P.S. ~~ 217.1 and 211.4. Section one pro-
vides: "Policemen ... employed . .. by the
Commonwealth shall ... have the right to
bargain collectively with their public em-
ployers concerning the terms and condi-
tions of their employment, including com-
pensation, hours, working conditions, re-
tirement, pensions and other benefits. . . ."
Section four authorizes the appointment of
an arbitration board to resolve an impasse
in bargaining. It then adds:
The detennination of the majority of
the board of arbitration thus established
shall ,be final on the issue or issues in
dispute and shall be binding upon the
public employer and the policemen or
firemen involved.... Such determina-
tion shall constitute a mandate ... to the
lawmaking body ... of the Common~
wealth with respect to matters which re-
quire legislative action. to take the action
necessary to carry out the determination
of the board of arbitration.
Pa. 97
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The Bargaining Unit
The second issue is whether the Com-
monwealth Court had jurisdiction to deter-
mine the appropriateness of the bargaining
unit, and, if so, whether the court was
I
98 Pa.
575 ATLANTIC REPORTER, 2d SERIES
"
correct in rejecting the scope of the bar-
gaining unit subject to the arbitration
award. At stake is whether all officers
through the rank of lieutenant colonel
should be included in the bargaining unit,
or whether, as the Commonwealth main-
tains, the bargaining unit should consist
only of troopers and corporals, excluding
sergeants, lieutenants, captains, majors,
and colonels, because the latter ranks are
management personnel.
[3.4] It is clear that the Pennsylvania
Labor Relations Board has exclusive juris-
diction to determine the appropriateness of
a bargaining unit. See, e.g., Philadelphia
Fire OfficerS Association 'lJ. Pennsylvania
Labor RelatUms Board, 470 Pa. 550, 369
A.2d 259 {1977}. In the aJ;lsence of PLRB
certification of a unit, an arbitration board
or a court has no authority to alter a unit
which has been contractually defined. The
Commonwealth Court's assumption of such
authority due to lack of PLRB certification
was erroneous, evincing a lack of attention
to the statutory differences between Act
111 and the Public Employe Relations Act
(pERA).'
[5] The critical distinction as it relates
to bargaining units under the two acts is
that PERA requires that PLRB certifica-
tion be obtained prior to initiation of the
bargaining process, 43 P.B. ~~ 1101.602
and 1101.603, whereas Act 111 provides
that designation of a representative by fif-
ty percent or more of the members is suffi-
cient to establish the obligation to bargain,
43 P.S. ~ 217.1. Lack of PLRB certifica-
tion in this ease, therefore, is not a: defect
in the proceedings, for Act 111, not PERA,
controls, and more than fifty percent of the
state police designated the FOP as their
labor representative.
[6.7] Under neither PERA nor Act 111
does an appellate court have jurisdiction to
determine the appropriateness of the bar-
3. Act of July 23, 1970, P.L. 563, No. 195, art. I,
!i 101, 43 P.s. !i 1101.101 et seq., also referred
to as "Act 195."
4. Indeed, the Commonwealth petitioned the
PLRB for such a unit clarification, attempting
to exclude the ranks of sergeant and above from
the bargaining unit. The Commonwealth, how-
I
I
gaining unit in the first instance. Al-
though Act 111 does not require PLRB
certification prior to bargaining, the act
pennits PLRB certification of the bargain-
ing unit. The PLRB thus has original jur-
isdiction to establish the classifications of
employees who are included within the bar-
gaining unit under both PERA and Act
111. Philadelphia Fire Officers Associa-
tion v. Pennsylvania Labor Relations
Board, id. The proper- forum for challeng-
ing the bargaining unit designated by the
employees is the PLRB, not the board of
arbitration nor the appellate court. 4 It was
error, therefore, for the Commonwealth
Court to overturn the bargaining unit des-
ignated by the employees and contractually
defined by the parties to this litigation.
Election of Remedies
[8J The final issue is whether the award
of the board of arbitration, permitting
grievance arbitration as an alternative
method for challenging offenses which are
also subject to court-martial proceedings, is
valid and enforceable. The Common.
wealth's opposition to this aspect of the
arbitration award. is, essentially, the argu-
ment that the statutory court-martial
scheme, set forth in the Administrative
Code,5 is so detailed and comprehensive
that the le~lature must have intended to
prohibit any alternative means of dealing
with offenses subject to court martial. The
FOP, on the other hand, argues that noth-
ing in the Administrative Code would pre-
clude grievance arbitration as an alterna-
tive to a court martial, and that our holding
in Board of Education v. Philadelphia
Federation of Teachers Local No.3, 464
Pa. 92, 346 A.2d 35 (1975), would permit
grievance arbitration.
The Administrative Code, in 71 P.S.
fi 251, does indeed provide a detailed court.
martial procedure, yet we perceive it as
ever, requested leave to withdraw the petition
on March 28, 1989, and on April 7, 1989, the
PLRB granted the request, leaving the contrac-
tually-defined unit intact.
5. Act of April 9, 1929, P.L. 177, art. VII, as
amended, 71 P.s. !i 251.
COM. v. CONF. OF STATE POLICE LODGES Pa. 99
. Cite.. 575 A.1d 94 (Pa. 1990)
being comparable in substance to the provi- course, no substitute for an impartial
sions of the Public, School Code 6 which fact-finder in the first instance.
allegedly vitiated the grievance arbitration One possible construction of the collec-
procedures which we upheld in Board of tive bargaining agreement is that the
Education, supra. In the face of argu- ''just cause" standard for discharge is
menta fundamentally the same as those identical with the statutory enumeration
presEmted by the, Commonwealth in this of reasons justifying such action. On
case, we upheld a collective bargaining this construction, all that the parties
agreement which pennitted grievance arbi. would have done is substitute a hearing
tration of disputes over discipijne or dis. before an impartial arbitrator for the
charge though the public employer argued hearing before the _board and subsequent
that such disputes were the province of the judicial review under the Local Agency
board of education pursuant to the Public Law. From tlie stanapoint 6f-th-e par-
School Code. Our rationale in that case is ties, this would have the advantage of
instructive: providing an inexpensive and expeditious
Moreover, the collective bargaining procedure in addition to an impartial fact.
agreement is susceptible of at least two finder.
constructions which fully protect the au- An alternative construction is suggest-
thority of the board. These stem from ed by the brief for the union. It sug-
consideration of the procedure fonnerly gests that the term "just cause," as used
in effect. in the agreement, contemplates the possi-
When a school board heretofore bility of discharges for a wider variety of
sought to dismiss a non-tenured teacher, reasons than those enumerated in the
the teacher was notified of the charges statute. Thus, an employee who elects
and afforded a hearing before the board, to pursue the grievance procedure rather
which then acted upon the proposed dis. than proceeding to a hearing before the
missal. As this Court stated in Brent- board would accept a less restrictive sub-
wood Borough School District Appeal, stantive standard in return for the great-
439 Pa. 256, 262-63, 267 A.2d 848, 851 er procedural advantages afforded by
(1970): the arbitration proceeding.
"At the hearing the board plays a dual We see no reason why either of the
role. It acts as both prosecutor and as constructions here suggested would in-
judge, and because of this it can never volve violation of any legal restriction
be totally unbiased." upon the power of the board, and the
The defects of this procedure from the board offers none.
s~ndpoint of .the teach~r have long be.en Board of Education, 464 Pa. at 103-05,
eVIdent. While there IS ~ oPPOrtU~Io/ 346 A.2d at 41-42 (footnotes omitted). '
for judicial review of the dIscharge, It IS -h -I b d' B d if Ed
limited to determining whether Like the sc 00 o~ maar 0 ~-
" .... . cation, the CommiSSIOner of Pennsylvama
the sam~ IS In Violation of the COns:l- State Police plays a "dual role" in a court
tuti~nal nghts of ~e appellant, or IS martial-he is required to furnish a de-
not l~ .accordanc:e WIth law, or tha~ the tailed written statement of charges and
pro.vlslons of th~ act have been vIOlat- then makes the ultimate decision on the
ed In the procee~Ing before the.agency, . 71 P.S. s: 251(bX1) and (2).
or that any findmg of fact made by the merits. ~
local agency and necessary to support Courts martial of Penns~l~ania. State Po-
its adjudication is not supported by lice held under the AdmmlS~tlve. ~d~,
substantial evidence." similar to the board of education dlSClph-
Local Agency Law, supra, fi 8, 53 P.S. nary proceedi~gs und.er .~e PUb,lic School
fi 11308. This type of review is, of Code, are subject to JudiCial review under
6. Act of March 10, 1949, P.L 30, art. V, !i 510, 24 P.S. 5-510 (1962).
,
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100 Pa.
MACKOWICK v, WESTINGHOUSE ELEC. CORP. Pa. 101
Cite as 575 A.2d 100 (Pa. 1990)
it ade uate] notUtes intended user of which a.ffirmed the judgment entered by
unobvi~us ~ngers inherent in product. the Court of Common ~leas of Allegheny
County. For the followmg reasons we con-
2. Products Liability $::>87 elude that as a. matter of law s.ppellant
Determinations of whether a warning fooled to state a cause of action in strict
is adequate and whether a product is defec- liability based upon inadequate warning,
tive due to adequate warnings are que&- and the judgment of the Superior Court
tiana of law to be answered by trial judge. must be aHinned.
3. Electricity e=>16(l) In December, 1982, the appellant, W~*
The warning on the lid of electrical liam Mackowick, was installing an electri-
capacitor clearly instructing the user to cat capacitor in the switchgear room at
ground the electricity before handling ~nd Wes.tern Pennsylvania Hospital. The yOom
thereby relieve any danger of electrocution had high voltage warnings on its door and
from uninsulated,. live electrical SO~ ade- was unlocked fOT authorized persons only.
quately addressed danger inherent. in prod~ During the installation; one of the appel-
net and was sufficient for the mtended lant's co-workers removed the cover from
user,' product was intended to be used only the operating Westinghouae ea.pa.ei~r. On
Id b the lid was a warning to usets which stat-
by qualified electricians who wou e
aware of the - dangers of arcing in such ed:
THIS CAPACITOR CONTAINS BUlLT-
equipment. IN DISCHARGE RESISTORS. CAU.
4. Ele<trieily 0=>1.(6) TION\ WAIT FIVE MINUTES AFTER
Question of whether electrical capaci- DISCONNEPTING. THEN SHORT
tor manUfacturer was required to warn CIRCUIT THE TERMINALS AND
professional electrician of dangers expeet~ GROUND THE CAPACITOR BEFORE
ed to be known by a skilled electrician, HANDLING.
including danger of arcing with exposed The appellant had similarly removed the lid
high voltage electrical power, was a ques~ to the Westinghouse capacitor several
tion of law to be decided by the court and we~k$ prij)r to- the accident and was aware
not by the jury. of the warning written on the cover. He
beg-an to_warn his eo-worker of ~e .danger
of the live, uninsulated fuses UlSlde th~
capaCitor. As appellant pointed a scre~d.rl-
ver into the live capacitor, the electriCity
from the capacitor explosively flashed or
"arced", and he was severely burned.
Appellant filed suit against Westing;-
house, as the manufacturer of the Cap?Cl-
tor on a products liability theory allegmg
th~t Westinghouse provided inadequate
warnings of the' dangers of electrical "arc-
ing" inherent in the unit Westin~house
claimed the plaintiff assumed the nsk of
pointing a screwdriver near uninsul~~d
fuses because, as an experienced electrlclan
of 30 years, he was aware of the dangers
of "arcing" regardless of the adeq~acy of
the warning. After a four-day trial, the
jury found in favor of Westinghouse.
Appellant appealed the judgm;nt :laim-
ing the trial judge instructed the jury Incor-
rectly as to this Commonwealth's law of
675 ATLANTIC REPORTER, 2d SERIES
I'
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the Administrative Agency Law; 1 courts
martial are therefore subject to the same
limited standard of review, 2 Pa.C.S. ~ 704,
as the teachers' disciplinary proceedings iit
the Board of Education case. As we said
there, that type of review is no substitute
for an impartial fact.finder in the first in-
stance.
The alternative of grievance arbitration
in addition to court martial in no way de-
tracts from the Commissioner's authority
to establish rules and regulations to retain
employment in the state police or to set
forth grounds for discharge. Neititer does
the procedure inhibit the Commissioner's
ability to prefer charges and recommend
discharge. The arbitration award merely
adds the alternative of a hearing before an
impartial arbitrator to the remaining alter-
native of accepting a court martial. Like
the Public School Code, there are no provi-
sions in the Administrative Code which pre-
clude such a procedure.
We must be 'careful to avoid inappropri-
ate connotations which might be derived
from military courts martial. Although the
term "court martial" justifiably emphasizes
the paramilitary aspects of uniformed ser-
vice in the generally-regarded prestigious
Pennsylvania State Police, serving as a
state trooper is more akin to holding a
civilian job than true military service in the
national defense. The fundamental distinc-
tion derives from the indentured nature of
military service such that a soldier may be
impressed into service and may not resign
at will. A state trooper, on the other hand,
may decide on a whim to abandon his job
and never return to work. He would be
'5ubject to "court martial," but the ultimate
sanction would be discharge from employ-
ment A soldier would theoretically be exw
posed to the ultimate sanction of execution
by firing squad if he abandoned bis job
under circumstances which could be charac-
terized as desertion in the face of the ene-
my. Bearing in mind this distinction, we
do not deem state police "court-m:arlial"
proceedings to be sacrosanct, but rather to
involve employment-related disciplinary
7. Act of April 28, 1978, P.L 202, No. 53, ~ 5, as
matters which may appropriately be re-
ferred to grievance arbitration. ~
We therefore reverse the judgment of
the Commonwealth Court which held the
grievance arbitration of disciplinary _ pro-
ceedings to be repugnant to the mandate of
the Administrative Code, 71 P.S. ~ 251.
11
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.
o ~~IYNUMBlRSYSTEM
,
William W. MACKOWlCK, Jr. and
Margaret Maekowick, his wife,
Appellants.
v.
WESTINGHOUSE ELECTRIC
CORPORATION, Appellee.
Supreme Court of Pennsylvania.
Argued SepL 29, 1989.
Decided May 22, ,1990.
In products liability ac'tion against elec-
trical capacitor manufacturer, the Court of
Common Pleas, Allegheny County, Civil Di-
vision, No. GD 83-19844, entered judgment
for manufacturer. On app~al, the Superior
Court, 373 Pa.Super. 484, 541 A.2d 749,
aff'trmed, and plaintiff appealed. The Su-
preme Court, No. 110 W.D. Appeal Docket,
1988, Nix, C.J., held that injured electrician
failed to state cause of action in strict
liability based upon inadequate warning as
a matter of law.
Affirmed.
Papadakos, J., concurred in result.
Larsen, J., filed dissenting opinion.
Maureen Dunn Harvey, Wallace, Chapas
& Associates, Poughkeepsie, for appellants.
Kenneth s. Mroz, Dickie, McCamey &
Chilcote, P.C., Poughkeepsie, for amicus
curiae, Pa. Defense Institute.
Richard H. Galloway, Galloway, DeBer-
nardo, Antoniono & McCabe P.C., Greens-
burg, for Pa. Trilll Lawyers Ass'n.
Frederick N. Egler, 'Egler, Anstandig &
Garrett, -Pittsburgh, for appellee.
Before NIX, C.J., and LARSEN,
FLAHERTY, McDERMOTT, ZAPPALA
and PAPADAKOS, JJ.
1. Products Liability ~14
The duty to 8.liequately warn does not
require a manufacturer to educate a neo-
phyte in the principles of the product;
warning of inherent dangers is sufficient if
amended, 2 Pa.C.s. ~ 501 et seq.
OPINION
NIX, Chief Justice.
The appellant here requests that this
Court reveroo the decision of the Superior
Court, 373 Pa.Super. 434. 541 A,2d 749,
620 Pa.
completion of 180 day\) of instruction under
Section 1501 of the Public School Code of
1949.
655 ATLANTIC REPORTER, 2d SERIES
[11] While it is clear that section 1003
has been rendered basically ineffective due to
the Secretary's standing to seek an end to a
strike by public educators, the option still
remains for public school entities to seek
injunctive relief to end a strike by its em*
ployees. Accordingly, we hold that section
1003 of PERA was not repealed by the enact*
ment of Act 88.
'The June 7, 1994 order of the Chancellor
ordering court-monitored negotiations be~
tween the Board al'ld the Association is re~
versed.
ORDER
NOW, this 24th day of February, 1995, the
order of the Court of Common Pleas, dated
June 7, 1994, at No. 94-2924, ordering court-
monitored bargaining between the Ringgold
Board of School Directors and the Ringgold
Education Association is hereby reversed.
McGINLEY, J., concurs and dissents.
McGINLEY, Judge, concurring and
ofusentmg.
I concur in the majority's opinion insofar
as it reaches the merits of the argument of
''whether the Chancellor had the authority to
order court-monitored bargaining between
the Board and the Association," (Footnote
omitted.) As the majority correctly notes,
only that portion of the Chancellor's June 7,
1994, order that the Board and the Associa-
tion undergo court-monitored negotiations is
on appeal before this Court. The majority
also correctly notes that although the appeal
is moot because the 1993-94 school year has
ended, the issue on appeal is one of "impor-
tant public interest, capable of repetition,
which is apt to elude review." I also concur
in the majority's opinion that the Secretary
has the standing tn request an injunction
where the strike threatened the mandatory
1. The majority concludes that Act 88 prohibits
court-ordered negotiations and that until the leg.
islature remedies "any defects in Act 88 ,.. after
all the provisions of Act 88 ha\le been complied
with and an agreement has not been reached due
to an ongoing impasse" courts must "restrain"
the use of their equitable powers.
CHESTEil UPLAND SCHOOL DIST. v. McLAUGHLIN
Cllellll655 A.2d. 621 (PII.Cmwlth. 199.51
authority to compel court-monitored bargain-
ing between the Board and the Association.
In Armstrong School District v. Education
Association, 528 Pa. 170, 595 A2d 1139
(1991) our Pennsylvania Supreme Court stat-
ed:
Inherently, courts sitting in equity have
the power to enforce their own decrees.
The power of a court of equity to enforce
its own decrees is a necessary incident
to the jurisdiction of the court. 'Without
such power, a decree would in many
cases be useless "All courts (of equity]
have this power, and must necessary
have it; otherwise they could not protect
themselves from insult or enforce obedi-
ence to their process. Without it they
would be utterly powerless"'. . . . The
jurisdiction of the court continues for
the purpose of enforcing the decree.
Where there is an unimpeachable final
decree, contemplating the performance
of a series of acts, the proceedings to
enforce compliance with the decree must
be through that proceeding. Butler
Co. v. P., H., B. and N.C. Ry. Co., 298
Pa. 347, 350--351, 148 A. 504, 505 (1929);
Roth v. M'CleUand, 6 Watts 68 (1837).
Advanced Management Research, fnc.
v. Emanue~ 439 Pa. 385, 391, 266 A.2d
673, 674 (1970).
fd. at 176--77, 595 A2d at 1142-43 (emphasis
in original).
I would affirm the order of the Chancellor.
However, I respectfully dissent to the por-
tion of the majority's conclusion that the
Chancellor's authority is limited to the issu-
ance of an injunction.l The record reflects
that the Secretary of Education filed a com-
plaint in equity and a petition for a prelimi-
nary injunction to assure that the District
complied with the 180 days of instruction
mandated under Section 1501 of the Public
School Code of 19492, 24 P.S. ~ 15-1501.3
The Association then requested court-or-
dered negotiations. The Chancellor granted
injunctive relief and ,the request for court-
ordered negotiations, concluding:
The real problem arises once the collective
bargaining impasse alternatives have been
utilized and have failed to reach a resolu-
tion as here. Act 88 provides no further
dispute resolution and provides no remedy
for the 'second' collective bargaining im-
passe once the parties have complied with
the mandates of Act 88. Therefore, this
court finds that Act 88 must be read in
pari materia with Act 195 since Act 88 has
failed to provide remedy, relief and/or res-
olution.
This Court agrees that Act 195 provides
for injunctive relief to the Defendant
school district and that Act 88 provides
additional injunctive relief to the Secretary
of Education. This Court had equity pur~
suant to Plaintiff's Complaint in Equity
and therefore, retains jurisdiction over the
entire controversy.
n
DOYLE, J., joins in this concurring and
dissenting opinion.
Opinion of the Chancellor, July 12, 1994, at
4-5.
I believe that the Chancellor properly de-
tennined that she possessed the equitable
2. Act of March 10. 1949. P.L. 30, as amended.
w
o ~~!YNUMaIRSYmM
,
3. Prior to the May 25, 1994, strike. the District
provided 163 days of instruction.
:;;
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Pa. 621
CHESTER UPLAND SCHOOL
DISTRICT
v.
MILDRED MCLAUGHLIN and Chester
Upland Education Association,
Appellants,
CHESTER UPLAND SCHOOL
DISTRICT
v.
PENNSYLVANIA LABOR RELATIONS
BOARD, Appellant,
CHESTER UPLAND SCHOOL
DISTRICT
v.
PENNSYLVANIA LABOR RELATIONS
BOARD and Chester-Upland Education
Association, Appellants,
CHESTER UPLAND SCHOOL
DISTRICT, Appellant
v.
~
PENNSYLVAt~IA LABOR RELATIO:SS
BOARD, and Chester-Upland
Education Association.
Commonwealth Court of Peimsylvania.
Argued Oct. 5, 1994.
Decided Feb. 24, 1995.
Education Association filed unfair labor
practice (ULP) charge with Pennsylvania La-
bor Relations Board (FLRB), alleging that
school district failed or refused tn take any
action regarding selection of arbitrator in
violation -([Public Employee Relations ACt
(PERA), and school district filed stay of arbi-
tration with Court of Common Pleas. The
Court of Common Pleas, Delaware County,
Nos. 92-10911 and 93--5141, Jenkins, J.,
granted school district's application for stay,
and subsequently v2Cated order and granted
in part and denied in part school district's
petition for review. Association and PLRB
filed individual appeals, and school district
cross-appealed. The Commonwealth Court,
Nos. 601, 651, 659, and 770 C.D. 1994, Pelle-
grini, J., held that arbitrator had sole juris-
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622 Pa.
655 ATLANTIC REPORTER, 2d SERIES
diction in first instance to decide whether
issue was arbitrable, overruling -Lutz, 122
Pa.Cmwlth.Ct. 112, 551 A.2d 396, petition for
allowance of appeal denied, 523 Pa. 638, 565
A.2d 446, Middle Bucks Ana Vocational
Technical School Education Ass'n, 122 Pa.
Cmwlth. 595, 552 A2d 763, petition for aiM
Iowance of appeal denied, 522 Pa. 606 562
A2d 828, in re Glover, 137 Pa.Cmwlth,Ct.
429, 587 A2d 25, petition for allowance of
appeal denied, 528 Pa. 63&, 598 A.2d 286;
Phoenixuille Area School Dist., 154 Pa.
Cmwlth.Ct. 438, 624 A2d 1083, Chester Up-
land Education Ass'n, 158 Pa.Cmwlth.Ct.
134, 631 A.2d 723.
Reversed in part, and afftnned in part.
Doyle, J., filed concurring and dissenting
opinion.
Smith, J., concurred in result.
1. Appw and Error <:;=>846(1), 1010.1(6)
Commonwealth court's scope of review
of trial court decision is limited to determin-
ing whether its findings are supported by
substantial. evidence, whether error of law
has been committed or whether there has
been abuse of discretion.
2. Labor Relations <$::=>46
Public Employee Relations Act (PERA)
was enacted to provide comprehensive legis-
lative scheme for resolution of employment
disputes in public sector. 43 P.S.
II 1101.101-1101.2301.
3. Labor Relations <$=>46
Primary public policy objective of Public
Employee Relations Act (PERA) was to es-
tablish hannonious and fair working relation-
ship for benefit of citizens and also for pro-
tection of employee. 43 P.S.. ~~ 1101.101-
1101.2301.
4. LabDr Relations <$::=>241, 246
Pursuant to written agreement section
of Public Employee Relations Act (PERA),
collective bargaining agreement (CBA),
which embodied terms of employment was
representative of mutual acceptance of terms
by both employer and employee when re-
duced to writing and signed by parties. 43
P.S. ; 1101.901.
5. Arbitration <$::=>2
Purpose of Uniform Arbitration Act
(UM) was to promote resolution of disputes
in nonjudicial forum while still providing for
court's role in compelling or staying arbitra-
tion proceedings when requested. 5 P.S.
g 161 et seq.
6. Arbitration <$::=>23.14
Pursuant to Publie Employees RelationB
Act (PERA), arbitrator has sole jurisdiction
in first instance to decide whether issue is
arbitrable, as PERA provides that arbitrator
is to hear, at leaBt in mst instance, all dis-
putes including arbitrability of disputes, and
thus to hold trial court also has jurisdiction
would violate Uniform Arbitration Act
CUAA), overruling Lutz, 122 Pa.Cmwlth.Ct.
112, 551 A.2d 396, petition for allowance of
appeal denied, 565 A.2d 446, Middle Bucks
Area Vocational Technical Sclwol Education
Ass'n, 122 Pa.Cmwlth.Ct. 595, 552 A.2d 763,
petition for allr:nvance of appeal denied, 562
A2d 828, In re Glover, 137 Pa.Cmwlth.Ct.
429, 587 A.2d 25, petition for aUowance of
appeal denied, 598 A.2d 286; Phoenixville
Area Sclwol Dist., 154 Pa.Cmwlth.Ct. 438,
624 A.2d 1083, Chuter Upland Education
Ass'n, 158 Pa.Cmwlth.Ct. 134, 631 A2d 723.
42 Pa.C.S.A. ~ 7302(b); 5 P.S. ~ 161 et seq.;
43 P.S. ; 1101.903.
7. Statutes e=223.1
Whether something is "consistent" \Vith
another statute is determined by if it supple-
ments without changing statutory scheme.
Leonard V. Tenaglia, for appellants Ches-
ter Upland Educ. Ass'n and Mildred
McLaughlin.
James L. Crawford, for appellant/appellee
Pennsylvania Labor Relations Bd.
Leo A Hackett, for appellee/appellant
Chester Upland School Dist.
Before COLINS, President Judge, and
DOYLE, McGINLEY, SMITH,
PELLEGRINI, FRIEDMAN and
NEWMAN, JJ.
Pa. 623
CHESTER UPLAND SCHOOL DIST. v. McLAUGHLIN
Cite as 655 A.2d 62.1 (Pa.Cmwlth. 1995)
education students.2 The Association filed a
grievance on McLaughlin's behalf seeking to
restore her status as a tenured professional
employee without loss of compensation or
benefits. On May 15, 1992, the Association
sent a letter to Dr. Iacono to discuss the
selection of a mutually acceptable arbitrator
pursuant to Article III C.6 of the collective
bargaining agreement (Agreement) but re-
ceived nG restmnse.
PELLEGRINI, Judge.
The Chester-Upland Education Associa~
tion (Association) app~a1s an order of the
Court of Common Pleas of Delaware County
(trial court) denying in part the trial court's
order dated July 16, 1993, and reversing the
decision of the Pennsylvania Labor Relations
Board (PLRB) except as to its finding that
the School District's refusal to arbitrate or
seek a stay of arbitration constituted an un~
fair labor practice contrary to the Public
Employe Relations Act (PERA).l The Ches~
ter Upland-School District (School District)
has filed a Cl"(}ss appeal frGm this order as
well.
1.
These appeals arise as a result of the
following procedural history. On April 2,
1992, Mildred McLaughlin (McLaughlin), a
special education teacher employed by the
School District, was advised in writing by the
School District's Superintendent, Anthony
Iacono, Ed.D. (Dr. Iacono), that she was
being suspended without pay as a result of
hearings that were held regarding allegations
that she used corporal punishment on special
1. Act of July 23, 1970. P,L. 563. as amended, 43
P.S. ~~ 1101.101-1101.2301.
2. Specifically, the School District aUeged that
McLaughlin had been charged with intemper-
ance, cI"Uelty, persistent negligence and persis-
tent and willful violation of school laws based on
the following charges:
(a) The illegal administration of corporal pun-
ishment to students who were legaUy ineligible
for corporal punishment;
(b) The administration of corporal punishment
in violation of the laws and regulations of the
Commonwealth of Pennsylvania applicable to
student with disabilities;
(c) The excessive use of corporal punishment
causing injury to students;
(d) On or about October 24, 1988, the use of
physical force on a student such as to cause
injury to the student;
(e) On or about October 24, 1988, the use of
corporal punishment by means of striking the
head of a student;
(f) Her unauthorized dismissal of her class on
or about May 6, 1988, endangering the stu-
dents thereof;
(g) The use of corporal punishment and/or
threats and severe emotional intimidation to a
student on or about December 5, 1991;
(h) Failure to follow the instructions and to
abide by notices and wamings issued to
On June 4, 1992, the Association conbcted
the Pennsylvania Department of Labor and
Industry, Bureau of Mediatwn, to request a
list of arbitrators because the parties had not
selected a mutually acceptable arbitrator
within the requisite time set forth in the
agreement. After receiving the list of arbi-
trators, the Association still could not get a
response from the School District. The AP,-
sociation then filed with the Pennsylvania
Labor Relations Board (PLRB) an unfair
labor practice charge, alleging that, the
School District had failed and/or refused to
take any action regarding the selection of an
arbitrator in violation of Section 903 of
PERA.3
d
II
;
Mclaughlin by the building principal during
the period 1987 to the present concerning
maintaining supervision of her class and leav-
ing that class unsupervised;
(i) The continued use of negative criticism,
verbal harassmen.t, bud and boisterous yelling
at students and the class despite continued
wamings from the building principal.
3. 43 P.S. 9 1lOI.903. That section provides:
Arbitration or disputes or grievances arising
out of the interpretation of the provisions of a
collective bargaining agreement is mandatofy.
The procedure to be adopted is a proper sub-
ject Ilrbatgaining with the proviso that the
final step shall provide for a binding decision
by an arbitrator or a tripartite board of arbitra.
tors as the parties may agree. Any decisions of
the arbitrator or arbitrators requiring legisla-
tion will only be effective if such legislation is
enacted:
(1) If the parties cannot voluntarily agree
upon the selection of an arbitrator. the par-
ties shall notify the Bureau of Mediatio[l of
their inability to do so. The Bureau of Medi-
ation shall then submit to the parties the
names of seven arbitrators. Each party shall
alternately strike a name until one name
remains. The public employer shall strike
the first name. The person remaining shall
be the arbitrator.
i
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624 Pa.
lacked jurisdiction pursuant to Section 501(a)
of the Uniform Arbitration .Act (UAA), 42
Pa.C.S. ~ 7304(a),5 also failed because its jur~
isdiction had not been preempted by the trial
court.
Because the PLRB then found that the
School District had violated Section
1201(a)(5) of PERA 6 by refusing to arbitrate
the grievance, the School District filed a
petition for review and a petition for injunc.
tion with the trial court seeking a reversal of
the PLRB's order and a determination that
the alleged demotion of a professional em-
ployee was not within the grievance arbitra-
tion provisions of the Agreement. It again
alleged that the Agreement between the As-
sociation and the School District expressly
excluded from arbitration that provision Qf
the collective bargaining agreement having
to do with discipline grievance matters where
the teacher would otherwise have a remedy
on the provisions of the Public School Code
of 1949.
School District's Application for Stay of Arbi-
tration. The second order vacated its July
16, 1993 order and then granted in part and
denied in part the School District's petition
for review by reversing the decision of the
PLRB except insofar as the PLRB found
that the School District's refusal to arbitrate
or contemporaneously seek a stay of arbitra-
tion constituted an unfair labor practice con-
trary to PERA. The trial court did so in
light of the School District's pending petition
for injunction which it found, at least techni-
cally, to be an unfair labor practice under the
authority of Chester Upland 1.8 The Associ-
ation and the PLRB med individual appeals
and the School District filed cross-appeals
with this court from both of the trial court's
order",.9
I
I
iJ{;;'
_F..'
. 655 ATLANTIC REPORTER, 2d SERIES
The School District responded by filing a
Stay of Arbitration with the Court of Com-
mon Pleas of Delaware County (trial court)
contending that the matter was not arbitra-
ble because the grievance provision under
the Agreement did not apply to circum-
stances where, as in this case, the teacher
had a remedy under the provisions of Section
1151 of the Public School Code of 1949.4
Although the matter was called for a hearing
in the trial court, the trial court judge re-
cused himself and indicated that the hearing
would be rescheduled before another judge.
No further action was taken by the trial
court and no orders were entered regarding
the Stay of Arbitration.
Addressing the-unfair labor charge of re-
fusing to arbitrate and relying on Section 903
of PERA, the PLRB found that an arbitra-
tor, at least in the first instance, is to decide
whether a grievance)s arbitrable, Further,
it found that under PERA, any refusal to
arbitrate a dispute concerning a collective
bargaining agreement is, per se, an unfair
labor practice. It further stated that the
School District's defense that the PLRB
4. Act of March 10, 1949, P.L. 30, as ammded, 24
P.S.9 II-lISt. That section provides:
Tbe salary of any district superintendent, assis-
tant district superintendent or other profes-
sional employe in any school district may be
increased at any time during the term for
which such person is employed, whenever the
board of school directors of the district deems
it necessary or advisable to do so, but there
shall be no demotion of any profeSSional em-
ploye either in salary or in type of position,
e:u:ept as otherwise- provided in this act, with-
out the consent of the employe, or, if such
consent is not received, then such demotion
shall be subject to the right to a hearing before
the board of school directors and an appeal in
the same manner as hereinbefore provided in
the case of the dismissal of a professional em-
ploye.
5. Act of October 5. 1980, P.L. 693. That section
provides that on application to a court to compel
arbitration made by a party showing an agree-
ment described in section 7303 (relating to valid-
ity of agreement to arbitrate) and a showing that
an opposing party refused to arbitrate, the court
shall order the parties to proceed with arbitra-
tion. If the opposing party denies the existence
of an agreement to arbitrate, the court shall
proceed summarily to determine the issue so
raised and shall order the parties to proceed with
arbitration if it finds for the moving party. Oth-
erwise, the application shall be denied.
CHESTER UPLAND SCHOOL DIST. v.McLAUGHLIN
Cltu1l655 A.2d 621 (Pa.Cmwlth. 199!1)
Pa. 625
[1] After a hearing, the trial court issued
two orders.7 The fll'St order granted the
6. 43 P.S. 9 1101.l201(a)(5). That section pro-
vides that public employers, their agents or rep-
resentatives are prohibited from refusing to bar-
gain collectively in good faith with an employe
representative which is the exclusive representa_
tive of employes in an appropriate unit, including
but limited to the discussing of grievances with
the exclusive representative.
II.
At the core of this appeal is the effect
Section 7302(b) of the UAA, 42 Pa.C.S.
~ 7302(b), has on Section 903 of PERA.
Since the enactment of the UAA, parties on
both sides of collective bargaining agree-
ments have repeatedly raised questions as to
whether PERA or the UAA controls when
detennining which entity, the arbitrator or
the trial court, has jurisdiction, in the first
instance, to determine if a matter is arbitra-
ble, The Association and the PLRB argue
that PERA is controlling because Section 903
of PERA mandates arbitration before an ar-
bitrator, and the UAA. only applies when it is
consistent with any statute regulating labor
and management relations. If PERA con-
trols, then matters relating to disputes over
whether an issue is arbitrable must first go
before an arbitrator. If the UAA applies,
then the trial court first decides to either
7. The trial court had previously issued an order
on July 16, 1993, granting both of the School
District's petitions and reversing the PLRB's de-
cision relying on the decision of Judge Labrum in
Chester Upland School District v. Pennsylvania
Labor Relations Board, et al., 80 Del. 218 (1993),
where he held that failure to arbitrate did not
constitute an unfair labor practice when the em-
ployee possessed a remedy under the provisions
of the Public School Code of 1949. However,
relying on this court's decision in Chester Upland
Educatum Association v. Pennsylvania Labor Re-
lations Board (Chester Upland I), 158 Pa.Com-
monwealth Ct. 134, 631 A.2d 723 (1993), the
trial court issued a second opinion in which it
cited PERA and stated that the threshold issue of
arbitrability remains, at least in the first instance,
with the arbitrator. Only ,thereafter is judicial
review appropriate. Tbe trial court noted,
though. that failure to submit grievances to the
arbitration procedure constituted an unfair labor
practice unless the arbitration procedure had
been timely stayed.
8. The trial court explained in its opinion:
This Court's March I, 1994, Orders represent
an attempt to recognize the requisite finding of
an unfair labor practice. seemingly compelled
by Chester Upland I, supra 631 A.2d at 726
("judicial intervention. .. cannot help the em-
ployer who chooses not to participate in arbi-
tration until after an unfair labor practice is
lodged"), while at the same time granting to
the District that it should not be compelled to
bear the burden and expense of an unwarrant-
ed grievance arbitration.
It further noted that "the better practice would
involve the employer filing its stay application
preemptively."
compel or stay arbitration. In order to re-
solve this debate, we first must examine the
history of the two Acts as well as the case
law that has emerged in this area.
A.
[2,3J PERA was enacted in 1970 to pro-
vide a comprehensive legislative scheme for
the resolution of employment disputes in the
public sector. Its primary public policy ob-
jective was to establish a harmonious and fair
working relationship for the benefit of the
citizens and also for the protection of the
employee. Kapil v. Association of Pennsyl-
vania State College and University Facul-
ties, 504 Pa. 92, 470 A.2d 482 (1983).
[4J Under Sections 401 and 701 of
PERA, III -public, employees were given the
right to "organize, fonn, join or assist in
employe organizations or to engage in lawful
concerted activities" for the purpose of bar-
gaining with their employers over tenns of
employment. Consequently, pursuant to
Section 901 of PERA,ll the collective bal'-
gaining agreement, which embodied the
terms of employment, was representative of
a mutual acceptance of the terms by both the
employer and the employee when reduced to
writing and signed by the parties, Under
Section 903 of PERA, the legislature deter-
mined that arbitration of disputes or griev-
ances arising out of the interpretation of
provisions of a collective bargaining agree-
ment was mandatory, and that the procedure
to be adopted was a proper subject of bar-
gaining with the proviso that the final step
had to provide for a binding decision by an
4{
~
9. Our-scope of review of a trial court decision is
limited to determining whether its findings arc
supported by substantial evidence, whether an
error of law has been committed or whether
there has been an abuse of discretion. North-
ampton Area School District v. Skepton, 138
Pa.Commonwealth Ct. 574, 588 A.2d 1020
(1991), petition for allO'lvance of appeal denied.
529 Pa. 637, 600 A.2d 956 (1991).
10. 43 P.S. 9 1101.401 and 91101.701.
11. 43 P.S. 9 1101.901.
626 Po.
655 ATLANTIC REPORTER,2d SERIES
arbitrator or a tripartite board of arbitrators
as the parties may agree,I2
In Pennsylvania Labor Relations Board v.
Bald Eagle Area School District, 499 Pa. 62,
67-68,451 A2d 671, 674 (1982), the Supreme
Court held that Section 903 of PERA re-
quired matters relative to collective bargain-
ing agreements to first go to an arbitrator
rather than the courts, stating:
[TJoday's decision only returns the issue to
the Carom where it should have been decid-
ed at the outset; it obviously leaves open
the posSlbility of additional review. How-
ever, were we to decide otherwise we
would only encourage potential parties to
such disputes to continue to follow the
practice of preliminary litigating through
one fomm the power of another to decide
the substantive issue. We condemn that
practice and hold that hereafter issues in-
volving conflicts between a public sector
collective bargaining agreement and funda-
mental statutory policies of this Common-
wealth must be presented first to arbitra-
tion for determination, subject to appropri-
ate court review of any award in conflict
with such policies.
See also East Pennsboro Area School Dis-
trict v. Pennsylvania Labor Relations
Board, 78 Pa.Commonwealth Ct. 301, 467
A2d 1356 (1983); Neshaminy Federation of
12. See Pittsburgh Joint Collective Bargaining
Committee v. City of Pittsburgh. 481 Pa. 66, 391
A.2d 1318 (1978); Rylke v. Portage Area School
District. 473 Pa. 481,375 A.2d 692 (1977): Hol-
linger v. Department of Public Welfare, 469 Pa.
358,365 A.2d 1245 (1976); Milberry v. Board of
EducaJion of the Sclwol District of Philadelphia,
467 Fa. 79, 354 A.2d 559 (1976); Board of Edt/-
cation of the School District of Philadelphia v.
Philadelphia Federation of Teacher.; Local No.3,
464 Pa. 92, 346 A.2d 35 -(1975); Koch v, Belle-
fonte Aretl School District, 36 Pa,Commonwealth
Ct. 438, 388 A.2d 1114 (1978); School District of
Penn Hills v. Penn Hills Education Association,
34 Fa.Commonwealth Ct. 507, 383 A.Zd 1301
(1978).
13. By comparison, Section 301 of the Labor
Management Relations Act, 29 U.S.C. S 185(a),
gives the district courts jurisdiction to resolve
disputes relating to collective bargaining agree-
ments, including disputes as to whether a matter
is subject to mandatory arbitration and' to enjoin
arbitration if not subject to arbitration. See also
AT & T Technologies v. Communications Workers,
Teachers v. Neshaminy School District, 501
Pa. 534, 462 A.2d 629 (1983),: Appeal of
Woodland Hills School District., 81 Pa.Com-
monwealth Ct. 199, 473 A.2d 257 (1984); Alli-
ston v. City of Allentown, 71 Pa.Common-
wealth Ct. 321, 455 A2d 239 (1983).13
B.
[5] The Uniform Arbitration Act was
first adopted in Pennsylvania in 1927 by the
Act of April 25, 1927, P.L. 381. That Act
provided for the arbitration of contract-relat-
ed matters by an arbitrator. In 1980, Penn-
sylvania repealed the 1927 Act by adopting
and modifying in part the model Unifonn
Arbitration Act of 1955 (Model Act) 14 to
create the current UAA The purpose of the
UAA was to promote the resolution of dis-
putes in a nonjudicial forum while still pro-
viding for the court's role in compelling or
staying arbitration proceedings when re-
quested.
Under both the Model Act and the UAA,
the trial court could compel arbitration if an
agreement existed in which the parties
agreed that any grievances would be subject
to arbitration, and there was an indication
that one of the parties was refusing to submit
to arbitration. Section 501(a) of the UAA. 42
Pa.C.S. * 7304(a). To stay arbitration, it had
to prove that there was no agreement to
475 u.s. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648
(1986); John Wiley &- Sons, Inc. v. Livingston,
376 U.S. 543, 84 S.Ct. 909, It L.Ed.2d 898
(1964); Atkinson v. Sinclair Refining Company,
370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462
(1962): United Steelworkers of America v. Enter-
prise Wheel and Car Corporation, 363 U.S. 593,
80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United
Steel-workers of America v. Wamor and Gulf Navi-
gation Company, 363 U.S. 574, 80 S.Ct. 1347, 4
L.Ed.2d 1409 (1960); and United Steelwor~r.; of
America v. American Manufacturing Company,
363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403
(1960), which rely on 29 U.S.C. ~ 185(a) to de-
termine that controversies in the private sector
relating to collective bargaining agreements are
for the courtS to determine.
14. The Model Act was the result of the National
Conference of Commissioners on Uniform State
Laws drafting a model arbitration act, the pur-
pose being to validate arbitration agreements,
make the arbitration process effective, provide
necessary safeguards, and provide an efficient
procedure when judicial assistance was neces-
sary.
CHESTER UPLAND SCHOOL DIST. v. McLAUGHLIN
Cite as 655 A.2d 621 (Pa.Crnwlth. 1995)
arbitrate. Section 501(a) of the UAA, 42 A.2d 25, petition for allowance of appeal
Pa.C.S. * 7304(b). Section 501(a) of the denied, 528 Pa. 633, 698 A.2d 286 (1991).
UAA, 42 Pa,C.S. * 7302(b), also specifies: More recently, in Phoeni.-eviUe Area School
This subchapter shall apply to a collective District v. The Phoenixville Area Education
bargaining agreement to arbitrate contro- Association, 154 Pa.Commonwealth Ct. 438,
versies between employers and employees 624 A.2d 1083 (1993), we held that it was
or their respective representatives only appropriate for the trial court to decide un-
where the arbitration pursuant to this der the UAA whether a matter was arbitra-
subchapter is consistent 'IlJith any statute ble only when the collective bargaining
regulating labor and management rela- agreement was clear on whether arbitration
tions. (Emphasis added.) was pennitted. Relying on both the lan-
Only if Section 7304(a) is consistent with guage in Section 7304(b) of the UAA .pro~d-
PERA would the trial court have jurisdiction ing: that the trial court may stay arbitration
under the UAA. on a showing that there is no agreement to
arbitration, and Section 903 of PERA stating
that arbitration of disputes or grievances
arising out of the interpretation of the provi-
sions of a collective bargaining agreement is
mandatory, we stated:
Read together these statutes confirm that
if there is no agreement to arbitrate and
an employee attempts to pursue an inappli-
cable grievance procedure, a stay of arbi-
tration, pursuant to the Uniform Arbitra-
tion Act, is appropriate. If, however, the
agreement -does not clearly permit or pre-
clude grievance of the dispute, the provi-
sions of the agreement must be interpret-
ed to detennine whether there is an agree-
ment to arbitrate. In that case, a stay is
not appropriate, and an arbitrator must
determine whether the dispute is grieva-
ble.
fd.; 154 Pa.Commonwealth Ct. at 445-446,
624 A.2d at 1087.
The most recent decision in this area of
law adding further explanation to that exist-
ing on who, in the first instance, has the
power to determine whether a matter is arbi-
trable, is Chester Upland 1. Summarizing
the law :Ill this area, we stated:
First, the scope of matters to be resolved
by grievance arbitration is in the frrst in-
stance for the arbitrator to determine.
Bald Eagle. An employer may, however,
file a petition for a stay of arbitration
proceedings under 42 Pa.C.S. * 7304(b) if
the employer can show a substantial, bona
fide dispute as to arbitrability. Middle
Bucks. If, on consideration of that stay
petition, it can be said with certainty that
the collective bargaining agreement does
,.........-.'......'...'-..
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.
C.
"~
We first addressed the impact of the UAA
on the arbitrability of a dispute in a collective
bargaining agreement in Mifflin County
School District v. Lutz, 122 Pa.Common-
wealth Ct. 112, 551 A.2d 396 (1988), petition
for allowance of appeal denied, 523 Pa. 638,
565 A2d 446 (1989). In that case, a teacher
questioned whether her dismissal, based on
her unsatisfactory ratings, was subject to
arbHi-cition before an arbitrator. Without
ever referring to PERA, we held that be-
cause the collective bargainmg agreement ex-
pressly prohibited arbitration to settle a dis-
pute related to teacher ratings, the trial
court had jurisdiction pursuant to Section
501(a) of the UAA, 42 Pa.C.S. * 7304(b), to
issue an order staying arbitration proceed-
ings.
We first directly addressed the effect of
the UAA on Section 903 in Middle Bucks
Area Vocational Technical School Education
Association v. Executive Council of the Mid-
dle Bucks Area Vocational Technical School,
122 Pa.Commonwealth Ct. 595, 552 A.2d 763,
petition for allowance of appeal denied, 522
Pa. 606, 562 A.2d 828 (1989). Reasoning that
PERA was silent as to whether the arbitra-
tor was to determine whether a dispute was
even arbitrable, and the UAA expressly per-
mitted the trial court to stay an arbitration
when there was no agreement to arbitrate a
matter, we held that it was not inconsistent
to allow the parties to petition the trial court
for a preliminary determination as to the
arbitrability of an issue. See also In re
Glover, 137 Pa.Commonwealth Ct. 429, 587
l'
Pac 627
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628 Po.
, 655 ATLANTIC REPORTER,2d SERIES
CHESTER UPLAND SCHOOL DIST. v. McLAUGHLIN
Clle....6SS A.2d 621 (Pa.Cmwhh. 1995)
of our previous decisions deciding other-
wise.19
not address the dispute which would be
arbitrated, the common pleas court may
grant a stay. Central Bucks School DUJ-
trict v. Central Bucks Education Associa-
tion. (Citation omitted.) A trial court
should not, however, enjoin arbitration un-
less "it can be said with - positive assur~
ance" that the parties have agreed the
dispute is not subject to arbitration.
PhoenixviUe Area School District v. The
Phoenixville Area Education Association.
(Citation omitted.)
Second, after arbitration, a party may, on
appeal to the common pleas colU't, raise
the question of arbitrability as a threshold
matter if the question has been raised
before the arbitrator. See, e.g., Harbor
Cr88k.ls If it is established - before the
common pleas com:t; that the dispute is not
subject to arbitration, then that court may
vacate the arbitration award. Gamet Val-
ley."
Finally, where no stay is sought and an
employer does not process a grievance or
othenvise participate in arbitration, the
question before the PLRB is whether the
refusal to arbitrate is an tmfair labor prac-
tice, and jurisdiction to determine this
question is first in the PLRB "and no~
wh~ else." HoUinger. A party cannot
unilaterally refuse to proceed to arbitra-
tion, since section 1201(a)(5) of the PERA
makes it an unfair labor practice to refuse
to arbitrate grievances in good faith. EWlt
Pe:nnsboro.
Id., 158 Pa.Commonwealth Ct. at 142-143,
631 A2d at 727.
Essentially, the result of the evolution in
the case law since Mifflin County School
District in 1988 has been to create a situation
where the trial court can enjoin arbitration.
If no injunction has been issued, the arbitra-
tor can proceed to address the arbitrability
of the issue, and if either party refuses to
proceed to arbitration, an unfair labor charge
can be filed with the PLRB.
IS. Harbor Creek School District v. Harbor Creek
Education Association, 146 Pa.Commonwealth
Ct. 631, 606 A.2d 666 (1992).
16. Garnet Valley Service Personnel Association v.
Garnet Valley School District, 128 Pa.Common-
wealth Ct. 182, 563 A.2d 207 (1989). was a
Ill.
[6] The Association and the PLRB have
asked us to revisit this area of law and
determine whether an arbitrator can be
preemptively enjoined by the trial court un-
der Section 7302(b) of the UAA. They ar-
gue, based on our Supreme Court's holding
in Bald Eagle, that Section 903 of PERA
provides that whether an issue is arbitrable
in the first instance is for the arbitrator to
decide and the UAA does not apply, at least
in this area, because it is inconsistent with
that provision.
Here, Section 903 of PERA, as found by
our Supreme Court in Bald Eagle, requires
that all disputes arising out of the collective
bargaining agreement, including disputes as
to whether issues are arbitrable under the
Agreement, are to be arbitrated before an
arbitrator. Because Section 903 of PERA
provides that the arbitrator ia to hear, at
least in the first instance, all di.sputes includM
ing the arbitrability of disputes, to hold that
a trial court also has jurisdiction would vioM
late Section 501 of the UAA, 42 Pa.C.S.
~ 7302(b). To allow the trial court to enjoin
such an action would not be a supplement to
PERA's provision and consistent, but a new
inconsistent'scheme. Section 903 of PERA
requires an arbitrator to hear these disputes
and after an arbitrator has decided, the trial
court then has jurisdiction to make an inde-
pendent judgment as to whether the matter
is arbitrable.
[7) Section 501(a) of the DAA, 42 Pa.C.S.
~ 7302(b), provides:
This subchapter shall apply to a collective
bargaining agreement to arbitrate contro--
versies between employers and employees
or their respective representatives only
where the a1"bitration pursuant to this
subchapter is consistent with any statute
regulating Labar and management rela-
tions.
The question then is whether this provision is
inconsistent with Section 903 of PERA man-
dating arbitration of disputes. Section 903 of
PERA provides:
Arbitration of disputes ur grievances aris-
ing out of the interpretation of the provi-
sions of a collective bargaining agreement
is mandatory. The procedure to be
adopted is a proper subject of bargaining
with the proviso that the final step shall
provide fur a binding decision by an arbi-
trator or a tripartite board of arbitrators
as the parties may agree. (Emphasis add-
ed.)
Whether something is "consistent" is deter-
mined by if it supplements without changing
the statutory scheme. In this context, it
means we can rely on the provisions of the
UAA to supplement PERA as long as there
is nothing in the UAA that prevents us from
doing that.
We hold that Section 903 of PERA is not
silent as to whether the arbitrator has jurisM
diction because our Supreme Court in Bald
Eagle has interpreted that section to mean
that the arbitrator has sole and exclusive
jurisdiction to hear disputes related to collec-
tive bargaining agreements, including dis-
putes of whether a matter is arbitrable. Be-
cause Section 903 of PERA has been inter-
preted as such, Section 501(a) of the UAA, 42
Pa.C.S. ~ 7302(b), giving the trial court ini-
tial intervention is "inconsistent." 17
Inasmuch as an inconsistency exists be-
tween the UAA and PERA, and pursuant to
our Supreme Court's holding in Bald Eagle,
the arbitrator has sole jurisdiction in the first
instance to decide whether an issue is arbi-
trable.iS As such, we expressly overrule all
17. The trial court still has full and independent
powers to review collective bargaining agree-
ments after the arbitrator has ruled on whether a
matter is subject to arbitration.
18. While the School District argues that the col-
lective bargaining agreement requires this matter
to be determined by the School Code of 1949,
that, too, would be a matter for the arbitrator to
decide. To find otherwise would require us to
ignore the intent of the General Assembly who
enacted both PERA and the UM.
19. Specifically, we overrule the following cases:
Mifflin County School District v. Lutz; Middle
1Jcu::ls Arw Vocational Technic&ll Schtwl BmJ-
different scenario than the cases we have been
discussing. In that case, the parties agreed to
take the matter to arbitration. Only after the-
arbitrator determined that the matter was arbi-
trable and the grievance was upheld was the trial
coun asked to vacate the arbitration award.
Pa. 629
Accordingly, because we have determined
that all questions of whether a matter is
arbitrable must be decided in the first in-
stance by an arbitrator, the order of the trial
court granting the School District's applica-
tion for stay of arbitration is reversed. As to
its order reversing in part its July 16, 1993
order except insofar as the PLRB found that
the School District's refusal to arbitrate or
seek a stay of arbitration constituted an un-
fair labor practice, we affirm that portion of
the order rmding that the PLRB properly
determined that the School District's refusal
to arbitrate was an unfair labor practice.
We reverse as to the trial court's determina-
tion that the School District's refusal to seek
a stay of arbitration was an- unfair labor
practice.
ORDER
AND NOW, this 24th day of February,
1995, the order of the Court of Common
Pleas of Delaware County, No. 92-1 mlll.
dated March 1, 1994, granting the School
District's application for stay of arbitration,
is reversed. As to its order also dated
March 1, 1994, reversing in part its July 16,
1993 order except insofar as the PLRB found
that the School District's refusal to arbitrate
or seek a stay of arbitration constituted an
unfair labor practice, we affirm that portion
of the order finding that the PLRB properly
determined that the School District's refusal
to arbitrate was an unfair labor practice.
We reverse as to the trial court's determina-
tion th;i the School District's refusal to seek
cation Association v. Executive Council of tile
Middle Bucks Vocational Technical School; In re
Glover; Phoenixville Area School District v. The
PhoellQvil!e Area Education Association; Central
Bucks School District v. Central Bucks Education
Association, 157 Pa.Commonwealth Ct. 100, 629
A.2d 196 (1993) (not cited in this opinion but
also holding that the tria1 court had jurisdiction
first to determine whether an issue was arbitra"
ble); and Chester Upland Education Associatioll
v. Pennsylvania Labor Relations Board (Chester
Upland I). Any other opinions not cited in this
opinion but decided contrary to this holding arc
also expressly overruled.
~,
~
630 Pa.
655 ATLANTIC REPORTER, 2d SERIES
a stay of arbitration was an unfair labor
practice.
SMITH, J.t concurs in the result only.
DOYLE, Judge, concurring and dissenting,
I concur in the result reaehed by the ma-
jority- which reversed the order of the trial
court granting the Chester Upland School
District a stay of the arbitration ordered by
the Pennsylvania Labor Relations Board
(PLRB, or Board) on April 6, 1993. I would
affinn the second order of the common pleas
court dated March 1, 1994, which affirmed
the PLRB's order with respect to the
Board's rmding that the School District had
committed an unfair labor practice (without
reference to the unfair labor practice as be-
ing labeled "technical"), I would reverse
that second order in "all other respects, which
would, in effect. affirm the Board's adjudica-
tion ordering the School District to arbitrate
the grievance. I
I dissent. however, from the majority's
legal conclusions that an arbitrator possesses
the "sole and exclusive" jurisdiction to ad-
judicate the issue of arbitrability, and that
Section 903 of the Public Employee Relations
Act (PERA) 2: and Section 7304 of the Judi-
cial Code, 42 Pa.C.S. S 7304, otherwise
known as the Uniform Arbitration Act
<OAA), are inconsistent and incompatible.
In my view, these Acts have already been
reconciled so that both should be given full
effect with respect to the issue of jurisdiction
in determining the arbitrability of a griev-
ance under a collective bargaining agree-
ment
1. I am unclear why the majority would reverse
"the trial court's determination that the School
District's refusal to seek a stay of arbitration was
an unfair labor practice." Op. at 629. The trial
court affirmed the PLRB's finding that the "Dis-
trict's refusal to arbitrate or contemporaneously
seek a stay of arbitration [from the Board] consti-
tuted an unfair labor practice." (Order of the
Court of Common Pleas of Delaware County
dated July 16, 1993). The School District did, of
course. seek a stay of the arbitration proceedings
from the common pleas court itself, but it is clear
t'rm\ the "!:,'lay" reierred. to in ine trial court's
order was a failure by the School District to
either arbitrate or file exceptions to the hearing
examiner's Proposed Decision and Order. I be-
The Historical Significance
of the Statutes.
In 1925, the National Conference of Com.
missioners on Uniform State Laws drafted
the first Unifonn Arbitration Act.3 Pennsyl-
vania adopted it in 19274 and it became
lmown as the Unifonn Arbitration Act. Sec-
tion 16 of the Uniform Arbitration Act of
1927 made it specifically applicable to "any
'Written contract to which the Commonwealth
of Pennsylvania . .. or any . .. political divi-
sion of the Commonwealth shall be a. party."
5 P.S. S 176. The Unifonn Arbitration Act
of 1927 did not contain any reference to the
arbitration of disputes in collective bargain-
ing agreements of public sector employees
because public sector employees had no right
to submit their grievances to binding arbitra-
tion. Erie Firefighters Local No. 293 v.
Gardner, 406 Pa. 395, 178 A.2d 691 (1962).
The right to submit public sector employee
grievances to binding arbitration was not
gained until November 7, 1967, when Article
III, Section 31 of the Pennsylvania Constitu-
tion was amended.a
Under the Arbitration Act of 1927 the
courts were authorized to stay the trial of
any action until the arbitration of the dispute
was complete if the agreeml;!nt called for
arbitration, and, could likewise "make an or-
der directing the parties to proceed to arbi-
tration in accordance with the terms of the
agreement." 5 P,S. S 163.
It is clear, therefore, that prior to the
adoption of PERA in 1970, the courts of this
CCtmmCtnwealth were, vested with the juris~
diction to determine the arbitrability of the
grievance at issue. Goldstein v. lnternation.
Iieve the Board's order was correct and_the trial
court's affirmance of that order was also correct.
2. Act of July 23,1970, P.L. 536, as amended, 43
P.S. 99 1101.t01-ll01.2301.
3. Peter H. Berge, The Uniform Arbitration Act: A
Retrospet:tive on its Thirty-fifth Anniversary, 14
Hamline L.Rev. 301, 304 (1991).
4. Arbitration Act of 1927. Act of April 25, 1927,
'l.t.. ~M, 5 '1'.5. Y1 \'O\-\'loL
5. Section 31 of Article III had formerly been
Section 20, Article III.
~
CHESTER UPLAND SCHOOL DIST. v. McLAUGHLIN
CJteas655 A.2d 621 (Pa.Cmwlth. 1995)
at Ladies Garment Workers' Union, 328 Pa. (a) General rule.-
385, 196 A. 43 (1938). (1) On application of a party, the CCturt
When the current version of the Uniform shall vacate an award where:
Arbitration Act (UM) was adopted in Penn-
sylvania in 1980,6 a full 10 years after PERA,
the General Assembly reenacted in Section
7304 of the UAA the same basic provisions of
law as had been in the earlier Arbitration Act
of 1927, Section 7304 pertinently provides:
Court proceedings to compel or stay ar-
bitration
(a) Compelling arbitration.-On appli-
cation to a court to compel arbitration
made by a party showing an agreement
described in section 7303 (relating to valid-
ity of agreement to arbitrate) and a show-
ing that an opposing party refused to arbi-
trate, the court shall order the parties to
proceed with arbitration. If the opposing
party denies the- existence of an agreement
to arbitrate, the court shall proceed sum.
marily to determine the issue so raised
and shall order the parties to proceed with
arbitration if it finds for the moving party.
Otherwise, the application shall be denied.
(Emphasis added.)
(b) Stay of arbitration.-On application
of a party to a court to stay an arbitration
proceeding threatened or commenced the
court may stay an arbitration on a
showing that there is no agreement to
arbitrate. When in substantial and bona
fide dispute, such an issue shall be forth-
with and summarily tried and determined
and a stay of the arbitration proceedings
shall be ordered if the court finds for
the moving party. If the court find" for
the opposing party, the court shall order
the parties to proceed with arbitration.
(Emphasis added.)
Likewise, Section 7314(a)(I)(v) of the UAA
also acknowledges the jurisdiction of the
courts to detennine, as a threshold issue, the
issue of the arbitrability of the grievance in
the frrst instance. Section 7314(a)(I)(v) per-
tinently provides:
Vacating award by court
6. 42 Pa.C.S. 99 7301-7362.
7. In 1937, the PLRB was created bytbe Pennsyl-
vania Labor Relations Act. Act of June I, 1937,
P.L. 1168, 43 P.S. 99 211.1-211.l3 (PLRA).
Pa. 631
(v) there was no agreement to arbitrate
and the issue of the existence of an
agreement to arbitrate was not adverse-
ly determined in proceedings under sec-
tion 7304 (relating to court proceedings
to compel or stay arbitration) and the
applicant-party raised the issue of the exis-
tence (If an agreement to arbitrate at the
hearing. (Emphasis added,)
Thus, it is rather evident that the courts
are vested with jurisdiction to detennine the
threshold issue of arbitrability, since even
after the creation of the PLRB,7 which \vas
vested with broad jurisdiction to adjudicate
all unfair labor practices,s not just arbitrabili-
ty, and even after PERA was adopted, the
General Assembly in Section 7304 of the
UAA, specifically expounded in clear tel1ns
that the courts were vested with jurisdiction
to determine the threshold issue of arbitra-
bility.
Assuming arguendo that PLRB's jurisdic-
tion to determine unfair labor practices was
in direct conflict with the provisions of th0
more recent adoption of the UAA in 1980,
several principles of statutory construction
compel us to conclude that the jurisdiction of
the courts would be paramount. First, when
a general provision in a statute is in irrecon-
cilable conflict with a special or specific pro-
vision in the same or another statute, the
specific provisions ,shall prevail. 1 Pa.C.S.
~ 1933; Olshansky v. Montgomery Connty
Election Board, 488 Pa. 365, 412 A.2d 552
(1980). Second, whenever the provisions of
two statutes are irreconcilable, the statute
latest in date of final enactment will prevail.
1 Pa.C.S. S 1936; Department of Transpol'.
tation, Bureau of Driver Licensing v. Camp-
bell, 138 Pa.Commonwealth Ct. 337, 588 A.2d
75 (1991). Regardless of these principles.
however, I nevertheless believe that Section
7304(a) is not inconsistent with Section 903 of
8. The term "unfair labor practices" is defined by
'!.ect.i.=.~ 1 aud.6. aEthe PLRA. 43 P.S. 99 211.3.
211.6.
-
.'
"""
~
~
632 Pa.
655 ATLANTIC REPORTER, 2d SERIES
PERA. 43 P.S. ~ 1101.903,9 and that the
courts and the PLRB have concurrent juris-
diction to determine the issue of arhitrability;
although not at the same time.
It should be acknowledged that as a gener-
al principle of statutory construction,
"[w]henever a general provision in a statute
shall be in conflict with a special provision in
the same or another statute, the two shall be
construed, if possible, so that effect may be
given to both," 1 Pa.C.S. 9 1933. Our Su-
preme Court, in addressing this very ques-
tion of the possible inconsistent provisions of
PERA and the Arbitration Act of 1927 has
stated;
We hold, as did the Commonwealth
Court, that the Arbitration Act of 1927
does apply to arbitration pursuant to
PEEU\ collective bargaUrlng agree-
ments.
[Wle perceive no conflict between the
standard of review contained in the Arbi-
mtion Act of 1927 and that recognized by
federal decisional law in the field of labor
relations. The two are not significantly
different. By the same token, we see no
incompatibility in regard to scope of review
between PERA and the Act of 1927, and
decline to hold the latter statute to have
been impliedly and pro tanto repealed by
PERA, as appellee suggests.
Community CoUege of Beaver County v.
Community College of Beaver County, Soci-
ety of Faculty (PSEAJNEA), 473 Pa. 576,
585, 587, 375 A.2d 1267, 1271-72 (1977).
The Supreme Court then continued:
The points at which the two statutes
before us conflict are essentially as set
forth in our opinion in International
Brotherhood of Fireman and Oilers, AFL-
ClO Local 1201 [v. School Distric~ 465 Pa.
356, 350 A.2d 804 (1976) ]. . . . [10]
9. Section 903 of PERA pertinently provides:
"Arbitration of disputes or grievances arising out
of the interpretation of the provisions of a collec-
tive bargaining agreement is mandatory."
10. ''IT.Jhe two acts differ with respect to the
selection of arbitrators in the absence of agree-
ment-by the parties. Compare Section 4 of the
Act of 1927, 51 [sic] P.S.!l 164, with subsection
(2) of Section 903 [of PERA]." lntemational
. .. We do not find in these few points of
difference sufficient indication that the
General Assembly of Pennsylvania, in en-
acting PERA, created such 'irreconcilable
conflict' as to justify a conclusion that the
Act of 1927 in its entirety is inapplicable to
PERA labor arbitration. Where conflict
does exist, of course, PERA, as the most
recently enacted of the two statutes,
takes precedence and controls. Section 3
of the Statutory Construction Act of 1972,
1 Pa.C.S.A ~ 1930. (Emphasis added.)
Id. at 595-596, 375 A2d at 1276.
Of course, the UAA adopted in 1980 would
take precedence over PERA, since it was the
most recently enacted of the two statutes, if
they were inconsistent; which they are not.
The majority concludes that Section 903 of
PERA is not only inconsistent with Section
7304(a), but futther, that it is paramount and
so prevailing that only an arbitrator is vested
with the "sole and exclusive jurisdiction" to
determine arbitrability in the final instance
solely because PERA mandates that the ar.
bitration of disputes or grievances "arising
out of the interpretation of the provisions of
a collective bargaining agreement is manda-
tory." This misperceives the very issue be-
fore the Court and by doing so, arrives in
elTor at the wrong conclusion. The issue,
succinctly stated, is whether the /:ollective
bargaining agreement even applies to the
substantive dispute in question. While it is
certainly true that an arbitrator may address
that issue under PERA, that does not, and
cannot, divest the courts of the Common~
wealth of their jurisdiction to also determine
the same issue of arbitrability when the Gen-
eral Assembly specifically conferred that jur-
isdiction on them ten years after PERA was
adopted.11 And, there is sound reason to
Brotherhood, 465 Pa. at 366, n. 9, 350 A.2d at
809, n. 9.
11. It seems strange to me that the maj",rity of
this Court can now conclude that Section 7304 of
the UAA is incompatible and inconsistent with
PERA, yet also conclude that Sectioru; 7302{b)
and 7302(d) of the UAA are not inconsistent and
not incompatible with Act 111, a much more
restrictive Act which pennits police and fire per-
sonnel the right to organize and bargain with
CHESTER UPLAND SCHOOL DIST. v. McLAUGHLIN
Citeas6S5 A.2d 621 (Pa.Cmwhh. 1995)
place with the courts of this Commonwealth that the underlying substantive controversy
that jurisdiction because the most critical involved a dispute over one day's pay for
aspect of the issue of arbitrability is the teachers who were on strike on Septem~er
importance of a prompt disposition of the 12, 1975. The Bald ~agle Area Education
substantive dispute. Association, represen~g the teaehro:s, rued
an unfair labor practice charge WIth the
PLRB on September 22, 1976, alleging that
the school district refused to arbitrate the
grievance. The PLRB ordered the school
district to arbitrate the grievance and the
school district appealed that determination
to the common pleas court. The substantive
grievance, therefore, never went to arbitra-
tion when the issue of arbitrability was ap-
pealed to the courts. No action was ever
preliminarily filed under Section 7304(b)
of the UAA. The common pleas court held
that the grievance was not arbitrable.. On
further appeal, this Court affirmed that de-
termination, and, after a protracted period of
litigation involving, not the grievance itself
but the issue of arbitrability, Justice Hutch-
inson of the Supreme Court in understanda-
ble exasperation opined:
The wisdom of the policy favoring arbi~
tration of grievances arising under a collec~
tive bargaining agreement and the folly of
pennitting a full preliminary bout in the
courts over the issue of an arbitrator's
jurisdiction is demonstrated by this case,
We find it absurd that, after six years, the
substantive issue of one day's pay for the
Bald Eagle Area teachers has not been
determined while the courts yet another
time have examined the PERA policy fa~
voring arbitratio~.
fd. at 67-68, 451 A.2d at 673 (emphasis add-
ed).
The protracted litigation and delay in Bald
Eagle_.il} reaching the real _issue occurred
because there was an appeal to the courts
from the Board's detennination that the sub-
ject grievance was arbitrable. That would
not be the situation where no unfair labor
Case Law Precedent
The majority reaches the conclusion that
Section 903 of PERA and Section 7304(b) of
the UAA are ulU"econci1ably inconsistent by
relying entirely, and exclusively, upon the
Supreme Court's decision in Pennsylvania
Labor Relations Board v. Bald Eagle Area
School Distm~ 499 Pa. 62, 451 A.2d 671
(1982). The majority opinion states:
We hold that section 903 of PERA is -not
silent as to whether the arbitrator has
jurisdiction because our Supreme Court in
Bald Eagle has interpreted that Section to
mean that the arbitrator has sole and
exclusive jurisdiction to hear disputes re-
lated to collective bargaining agreements,
including disputes of whether a' matter is
arbitrable. Because Section 903 of PERA
has been interpreted as such, Section
501(a) of the UAA, 42 Pa.C.S. ~ 7302(b)
[SiC],[12] giving the trial court initial inter-
vention is 'inconsistent: (Emphasis add-
ed.) (Footnote omitted.)
The Supreme Court in Bald Eagle, howev.
er, never interpreted Section 903 in this man.
ner, nor even inferred it. To the contrary, I
believe that a close reading of Bald - Eagle
would lead to the opposite conclusion, that is,
that of paramount importance is the "prompt
disposition of disputes and the resolution of
grievances under a collective bargaining
agreement.'~ This, in my view, would be
accomplished by a swift application to a prop-
er court, if that wsue were not already before
the PLRB.
The underlying procedural facts in Bald
Eagle were never in dispute and they reveal
their public employers over terms of employ-
ment. See, Act of June 24, 1968. P.L. 237, as
amended. 43 P.S.!l!l 217.1-217.10; Pennsylvania
State Police v. Pennsylvania State Troopers' Asso-
ciation (Betancourt), 159 Pa.Commonwealth Ct.
489.633 A.2d 1278 (I993). petition (or allowance
o{ appeal denied, 538 Pa. 617, 645 A.2d 1320
(1994).
Pa.
633
~
,
12. I believe the intended section of the UAA is
~ 7304(b) "Stay of Arbitration," rather than Sec-
tion 73V2(b). Section 7304(b) gives either p~rty
to the collective bargaining agreement the nght
to apply to a court to stay an arbitratioIl; "by ~
showing that there is no agreement to arbitrate;
Section 501(a) of the Act of October 5, 1980, P.L.
693. encompasses an twenty sections of the UAA.
42 Pa.C.5. !l!l 7301-7320.
634 Pa,
655 ATLANTIC REPORTER, 2d SERIES
~~
charge has heen filed with the Board; obvi-
ously, there can be no appeal from a PLRB
detennination when there is no determina.
tion to appeal.
The Supreme Court in Bald Eagle quite
clearly inferred that once an unfair labor
charge has been filed, then the Board has
exclusive jurisdiction to determine the issue
of arbitrability if that issue is placed before
it. But, once a party has tiled an equity
action under Section 7304 of the UAA with
the proper court, the courts are vested with
jurisdiction to determine the issue of arhitra-
bility in the first instance, and jurisdiction
may not be divested by a later application to
the PLRB alleging an unfair labor practice.
In effect, once either the PLRB or a court
exercises jurisdiction over the subject matter
in question, that is, the issue of arbitrability,
that jurisdiction can.not be divested by a sub-
sequent application by the opposing party to
any other tribunal under a different statute.
That, I believe is the full import of Bald
Eagle, and that principle can be read in
complete harmony with the further articula-
tion of Justice Hutchinson in his opinion:
Bearing in mind the importance of prompt
disposition of disputes and resolution of
grievances under a collective bargaining
agreement and the concomitant strong pol-
icy articula.ted in the PERA requiring the
submission of such disputes to arbitration
in the first instance, we reverse the order
of the Commonwealth Court, 44 Pa.
Cmwlth. 254, 403 A.2d 1038 [1979], and
reinstate the order of the PLRB to pro-
ceed to arbitration. Like PLRB, we do
not d€cide the merits of the dispute.
fd. at 64, 451 A2d at 672.
This analysis is comparable procedurally to
the situation where a litigant preliminarily
objects to the subject matter of a tribunal.
13. We note that in Middle Bucks, the only issue
before the Commonwealth Court was the poten-
tial conflict between Section 903 of PERA and
Section 7304(b) of the UAA. Judge Alexander F.
Barbieri cogeJ?:t!y wrote:
On appeal, Appellant asserts that the trial
court had no jurisdiction to enter a stay be-
cause Section 903 of the PERA, 43 P ,5.
9 1101.903, compels the submission of all dis-
putes arising out of the collective bargaining
agreement to arbitration and it is the arbitrator
CHESTER UPLAND SCHOOL DIST, v, McLAUGHLIN
Clleas65S A.1d 621 (Pa,Cmwhh. 1995)
Moreover, the last pronouncement by this Some legal commentators have criticized
Court on this issue in Chester Upland Edu- this reconciliation of Section 7304(b) of the
cation Associatirm v. Pennsylvania Labor UAA and Section 903 of PERA as a "race to
Relations Board, 158 Pa.Commonwealth Ct. the courthouse" 15 because "the Common-
134, 631 A.2d 723 (1993) (Chester Upland f), wealth Court has created a situation where
where this Court effectively took into consid~ the PLRB and the co~on pleas c~~ ~~
eration all of the past precedent of this and will reach contradictory declSlO~s. .
Court as well as the two defmitive decisions The fallacy of this criticism, however, Iles m
of th~ Supreme Court in Bald Eagle and the comm~n~t~r'~ failure to recognize that
Office of Administration v. Pennsylvania once the Junsdiction of the PLRB has at-
Labor Relations Board, 528 Pa. 472, 598 tached, any subsequent application to the
A.2d 1274 (1991). While Chester Upland f common pleas court should be quashed upon
recognized that in Bald Eagle and Office of the application of th~ opposing .party. In
Ad ,-. t t' th S Court held none of the cases reVIewed by this Court or
mtnzs ra wn, e upreme .. h n
that the issue of arbitrability was for the cited in the law reVIew article was sue a
b'tr t . th fir t . ta ce it further application presented. Moreover, the com-
ar 1 a. or m ~ s ms n , ellin ublic policy behind this procedure is
recogmzed that m both of those Supre~e ~e s;l determination of the threshold issue
Court ~ppeals there. was never any prior of whether the controversy/grievance should
proceeding flIed by eIther party under Sec- bid b ! b"-ator Ult,'.
even e pace e ore an ar 1.... .
tion 7304(b) of the"?~ ~oth. Bald Eagle mately it will be the courts which will deter-
and Office of A~n:tmstratwn mvolved ~p- mine that issue, either in the first instance or
peals from a deCISIon of the PLRB ordenng al If that issue can be determined
h ' b' h. to b' onappe.
t e parties to su mIt t e grIevance.. ar 1- by a swift initial application to a court, it will
tratlon. Judge Charles P:- Lord, WrIting for advance the ultimate final adjudication, which
our Court,14 astutely articul~ted a su~~ary is the underlying public policy of this Com-
of the law, which is set out m the maJority's monwealth.
opinion on pages 15, 16.
This criticism has already been answered
by Judge Barbieri's cogent analysis in Mid-
dle Bucks when he wrote that "Section
7304(b) is a pre-emptive measure [and} it
must be used before the arbitration proceed-
ings commence. We hold that while Section
7304(b) of the Act pennits a party to petition
the trial court for a preliminary determina-
tion of whether or not an issue is arbitrable
under the terms of the collective bargaining
agreement, once the arbitration proceedings
An order dismissing such an objection is
interlocutory and not appealable as a right.
See Department of Transportation Appea4
81 Pa.Commonwealth Ct. 262, 473 A2d 262
(1984),
I further believe that we can glean the
Supreme Court's views on this vexing prob-
lem by observing those recent decisions of
this Court wherein we held that the courts of
common pJeas do have jurisdiction to deter~
mine arbitrability in the first instance and
the further treatment of those decisions by
the Supreme Court; specifically, Mifflin
County School District v. Lutz, 122 Pa.Com-
monwealth Ct. 112, 551 A.2d 396 (1988), peti-
tion for allowance of appeal denied, 523 Pa.
638,565 A.2d 446 (1989); Middle Bucks Area
Vocational Technical School Educatirm As-
sociation v. Executive Council of the Middle
Bucks Area Vocational Technical School, 122
Pa.Commonwealth Ct. 595, 552 A.2d 763, pe-
tition for aUowance of appeal denied, 522 Pa.
606, 562 A.2d 828 (1989); In re Glover, 137
Pa.Commonwealth Ct. 429, 587 A.2d 25, peti-
tion for aUowance of appeal denied, 528 Pa.
633, 593 A.2d 286 (1991).
All of these decisions held that a court -of
common pleas had jurisdiction to determine
the issue of arbitrability in the first instance,
and all of the decisions were decided after
the Supreme Court's 1982 decision in Bald
Eagle. Of critical importance is the salient
fact that in none of them was an unfair labor
practice charge filed with the PLRB. While
acknowledging that a denial of a petition for
allowance of appeal is certainly not prece-
dential, the observation is inescapable that
had the High Court viewed the law different-
ly in such an important area of the law and
had it desired to ,adopt a different rule of law,
it could have availed itself of the opportunity
to do so in anyone of those cases.I3
The only unarticulated lacuna in Chester
Upland f, a determination which was unnec-
essary to reach a decision in that appeal, is a
definitive statement of exactly when the jur~
isdiction of one tribunal attaches to the exclu-
sion of the other. That interstitial conclu-
sion, very obviously, is when either an unfair
labot practice charge is flIed with the PLRB
or an application under Section 7304(b) is
filed with the appropriate court.
7304(b) expressly permits the trial court to stay
an arbitration if it determines there is no
agreement to arbitrate the dispute. We must
give effect to the specific language of Section
7304(b).
We do not wish to suggest that the arbitrator
no longer has the ppwer to determine whether
or not an issue is arbitrable once the parties are
before him. See Mifflinburg Area EducatIon
A5sociation v. Mifflinburg Area School District
[l18 Pa.Cmwlth. 328, 545 A.2d 419 (1988)].
Section 7304(b) is a pre-emptive measure, it
must be used before the arbitration proceedings
oommence. We hold that while Section 7304(b)
of the Act permits a party to petition the trial
court for a preliminary determination of wheth-
er or not an issue is arbitrable under the tenns
of the collective bargaining agreement, once the
who determines in the first instance whether
or not an issue is arbitrable. We are thus
presented with an apparent conflict between
Section 7304(b) of the Uniform Arbitration Act
and Section 903 of the PERA.
While Section 903 of the PERA does require
arbitration of disputes arising out of the inter-
pretation of the provisions of the agreement, it
is silent as to who interprets whether the dis-
pute is arbitrable or not. By contrast, Section
~,,~
Pa, 635
~.
,
arbitration proceedings actually begin, the arbi-
trator's determinations regarding the subject
m(Jtter of a grievance are controlling. (Empha-
sis added.) (Citation omitted.)
ld. at 599-600, 552 A.2d at 765.
14. See Section 256 of our Internal Operating
Procedures.
15. See Mark P. Widoff with Michelle Fastiggi.
The Judiciary's Role in Compelling or Stayillg
Public Employment Grievance Arbitration Under
Pennsylvania's Enactment of the Uniform Arbitra-
tion Act: Reconciling PERA and the U.A.A.. 98
Dick.L.Rev. No.4. 630, 631-656 (1994).
16. ld. at 654.
",,:"<'
OROUGH OF MOUNT HOLLY
SPRINGS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 00-5642
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
PLAINTIFF'S HEARING MEMORANDUM
Plaintiff Borough of Mount Holly Springs, by its Solicitor, Snelbaker, Brenneman &
Spare, P. C submits this hearing memorandum with respect to the pending Petition For
Preliminary Injunctive Relief as follows:
1. PROCEDURAL AND FACTUAL BACKGROUND.
This matter arises due to the efforts of Defendant Troy Wiser to submit the matter of his
removal as a police officer in the Borough of Mount Holly Springs to binding arbitration.
On June 12,2000 at a regular public meeting of the Mount Holly Springs Borough
Council ("Council"), Defendant Troy Wiser was removed as a police officer in the Borough of
Mount Holly Springs (the "Borough"). Defendant Wiser timely commenced the grievance
procedure outlined in the police contract between the Borough of Mount Holly Springs and the
Mount Holly Springs Police Association applicable to the calendar years 2000 and 2001. (See
contract attached to Plaintiffs Complaint as "Exhibit A" hereinafter the "police contract").
Claiming that just cause did not exist to warrant the imposition of dismissal from the police force
or for discipline of any kind, Defendant Wiser submitted his grievance through the steps
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
proscribed by the police contract. In each instance and at each level, his grievance was denied
and he was advised either that a question existed as to whether the matter constituted a
"grievance" or that the subject matter did not constitute a "grievance" under the police contract.
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
By a grievance form dated July 27, 2000, Defendants Wiser and the Mount Holly Springs
Police Association appealed the grievance of Defendant Wiser to binding arbitration in
accordance with Step D of the contractual grievance procedures of the police contract. (See
Exhibit B to Plaintiffs Complaint.) On August 15,2000, this action was initiated by the
Borough seeking, inter alia, to enjoin the binding arbitration initiated by the Defendants. A
Petition For Preliminary Injunctive Relief was filed concurrently with the Complaint in this
action. A hearing has been scheduled on the Petition for August 30, 2000 at 8:15 a.m. This
memorandum is submitted by Plaintiff Borough of Mount Holly Springs in support of its request
for preliminary injunctive relief seeking to enjoin the binding arbitration procedure initiated by
the Defendants.
II. ISSUES PRESENTED.
A. Whether the grievance of Defendant Wiser is properly within the jurisdiction of
an arbitrator pursuant to the terms of the police contract.
(proposed Answer: No.)
B. Whether injunctive relief is appropriate to abate the use of binding arbitration
sought by the Defendants.
(Proposed Answer: Yes.)
I
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
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III. ARGUMENT.
DEFENDANTS' "GRIEVANCE" IS NOT A MATTER PROPERLY
WITIDN THE JURISDICTION OF AN ARBITRATOR.
The question of the scope of a grievance arbitration procedure under a collective
bargaining agreement is for the arbitrator, at least in the first instance. The threshold question
however is whether there exists an agreement to arbitrate the dispute. Central Bucks School
District v. Central Bucks Education Association, 157 Pa.Cornmw. 429, 629 A.2d 196 (1991),
appeal denied 528 Pa. 633, 598 A.2d 286. On a showing that there is no agreement to arbitrate, a
court may stay arbitration. 42 Pa.C.S.A. 9 7304(b).
With respect to dismissal, if the collective bargaining agreement did not intend to
encompass the question of dismissal, dismissal is not arbitrable under the agreement and an
arbitrator has no authority to address the question. Neshaminv Federal of Teachers v.
Neshaminv School District, 501 Pa. 534,462 A.2d 629 (1983).1
Based upon the above principles and the language ofthe police contract, there is no
agreement to arbitrate Defendant Wiser's removal and the Defendants' efforts to arbitrate the
matter must be enjoined.
Exhibit C to the police contract, sets forth the grievance procedures to be followed by the
[ Neshaminv Federation of Teachers, supra., has since been partially overruled by an act of the General Assembly,
but the portion of the case regarding the power of the courts to review an arbitrator's jurisdiction remains
controlling law. Garnet Valley Service Personnel Association v. Garnet Valley School District, 128 Pa.Commw.
182, 187, n.S, 563 A.2d 207,209 n.S (1989).
I
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
-~- ,.::..
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parties to the contract. Paragraph 1 of Exhibit C provides in relevant part as follows:
1. DEFINITIONS
A. A "Grievance" is a dispute arising out of the interpretation, misapplication
or violation of the terms of the Agreement.
.
The grievance form submitted by Defendant Wiser (Complaint, Exhibit B) initiating the
binding arbitration procedure identifies the Defendants' grievance as follows:
The substance of the grievance is as follows:
On June 13, 2000, this Grievant was notified of allegations made by Michelle R.
Gehr and the resulting investigation of those allegations.
As a result of those investigations, this Grievant was charged with conduct
unbecoming an officer and was removed from the Mount Holly Springs police
Department pursuant to the relevant provisions of the Borough Code.
Just cause does not exist to warrant the imposition of dismissalfrom the police
force or for discipline of any kind (emphasis in original)
The substance of the grievance as framed by the Defendants is in fact not a "grievance"
under the police contract. Nowhere in the contract is the subject matter of dismissal, removal or
discipline of police officers mentioned, referenced or discussed. Clearly the parties as evidenced
by the content of the police contract did not intend to encompass the matter of dismissal, removal
or discipline. Indeed, the definition of "grievance" as noted above deals with disputes that arise
concerning the terms of the agreement. There can be no arbitrable dispute on terms that are non-
existent.
Similarly, Defendants' position that "just cause" did not exist to warrant Defendant
Wiser's dismissal as a basis for his grievance lacks any support in the language ofthe police
contract. Nowhere does the police contract make reference to "just cause" as a standard for any
decision of Council, let alone a decision concerning the discipline of police officers. The
i
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omission of any language in the police contract concerning discipline and removal of police
officers as well as the standards for taking such actions is telling. Contrasted with the statutory
provisions for such action by the Mayor and Council under the Borough Code generally and civil
service provisions specifically, it is clear that the parties never intended the grievance procedure
to encompass a review of such matters. (See, e.g. 53 P.S. S 46190, et seq. (suspension, removal
and reduction in rank of police and fire force); 53 P.S. S 46124 (suspension of policemen by
Mayor).)
Plaintiff submits that the police contract is not susceptible to an interpretation that covers
the dispute as framed by the Defendants. Unlike contract language construed by the
Commonwealth Court in Phoenixville Area School District, supra., where the contract provided
for grievances of disputes involving interpretation or application of provision of the agreement
"unless the provisions specifically preclude grievance", 2 no such broad qualifying language
exists in the police contract at issue in this case. Any effort by Defendants to argue that
Paragraph 10 of Exhibit C to the police contract confers jurisdiction of this matter upon an
arbitrator is misplaced. Paragraph 10 provides that if an employee utilizes any process under the
Police Tenure Act, Civil Service Statutes or Local Agency Law, any steps along the grievance
procedure shall cease. This paragraph assumes that there is a proper grievance in the first
instance. It neither suggests or allows an "election of remedies" by a police officer in deciding
between statutory and contractual procedures nor confers jurisdiction upon an arbitrator where
none was intended to be given.
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
For the above reasons, it is submitted that the parties never agreed or even intended to
agree to submit the type of grievance identified by Defendant Wiser to arbitration. Accordingly,
I
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preliminary injunctive relief should be granted by this Court and the arbitration procedure
initiated by the Defendants enjoined in accordance with 42 Pa.C.S.A. ~ 7304(b).
INJUNCTIVE RELIEF IS APPROPRIATE TO ABATE THE USE OF
BINDING ARBITRATION SOUGHT BY THE DEFENDANTS.
On the application of a party to a court to stay an arbitration proceeding threatened or
commenced, the court may stay an arbitration on a showing that there is no agreement to
arbitrate. 42 Pa.C.S.A. ~ 7304(b) For the reasons indicated above, it is submitted that this Court
can enjoin the arbitration under the authority of ~ 7304(b). Further, under common law criteria,
sufficient grounds exist for the issuance of a preliminary injunction.
A court may grant a preliminary injunction where a moving party has established the
following elements.
(I) relief is necessary to prevent irreparable harm to the movant;
(2) the injunction will restore the parties to the status quo as it existed prior
to the alleged wrongful act;
(3) greater injury will result from a refusal to grant the injunction than from
granting the injunction; and
(4) the movant's right to relief is clear.
Harsco Com. v. Klein, 395 Pa.Super. 212, 576 A.2d 1118 (1990).
The governing body of the Borough of Mount Holly Springs removed Defendant Wiser
as a police officer. Proceeding with binding arbitration from which no appeal can be made
LAW OFFICES
SNELBAKER,
BRENNEMAN
& SPARE
compels the Borough to participate in a procedure concerning a matter never contemplated by it
under the police contract. The Borough cannot be adequately compensated by such a
2 See Phoenixville, supra., 642 A.2d 1086.
,
I
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
'-,. _>'i'n ,,~"-o"_'.,'
consequence by an award of damages. The arbitration proceeding must therefore be enjoined.
Enjoining the arbitration would certainly restore the status quo that existed as a result of
Defendant Wiser's removal and prior to his initiation of the grievance process.
Plaintiff also contends that greater injury will result of the injunction is refused than if it
is granted. It if is refused, the Plaintiff is subject to the binding decision of one arbitrator, again a
consequence and procedure never contemplated by the parties under the police contract.
Nowhere is it suggested in the police contract that the governing body of seven elected and
appointed council members indicated an intention to allow one individual with no ties to their
community review and make a binding decision on a matter as critical to public safety and
welfare as the removal of a police officer.
For all these reasons, Plaintiff's right for relief is clear and the binding arbitration
proceeding should be enjoined.
SNELBAKER, BRENNEMAN & SPARE, P. C.
,~~
BY:
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, P A 17055
(717) 697-8528
Solicitor for Petitioner
Borough of Mount Holly Springs
Date: August 29,2000
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BOROUGH OF MOUNT HOLLY
SPRlNGS,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CIVIL ACTION - LAW
TROY WISER and MOUNT HOLLY
SPRlNGS POLICE ASSOCIATION,
Defendants
NO. 00-5642
ORDER
AND NOW, this
day of
,2000, upon consideration of the
..
Petition for Preliminary Injunctive Relief and the Response to said Petition, it is hereby
~ .
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ORDERED that the Petition is DENIED. The Plaintiff shall proceed with the arbitration
of the grievance involving Defendant Wiser's termination from employment.
...
BY THE COURT:
J.
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BOROUGH OF MOUNT HOLLY
SPRINGS,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
CNIL ACTION - LAW
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
NO. 00-5642
DEFENDANTS' RESPONSE TO PETITION FOR INJUNCTIVE RELIEF
AND NOW, come the Defendants, Troy Wiser and the Mount Holly Springs Police
Association, by and through their attorneys, Eric C. Stoltenberg, Esquire, and LIGHTMAN
& WELBY, and files this Response to Plaintiff's Petition for Injunctive Relief, as follows:
1. ADMITTED.
2. DENIED as stated. The grievance is not "purported" but a product of
contractual right. It is ADMITTED that Defendants demanded arbitration of Officer
Wiser's contractual grievance contesting termination from employment.
3. ADMITTED.
4. ADMITTED.
5.(a). DENIED. The grievance is arbitrable under Article VI and Exhibit "C" to
the Police Contract.
(b). DENIED. The grievance is arbitrable under Article VI and Exhibit "C" to
the Police Contract.
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(c). DENIED. The grievance is arbitrable under Article VI and Exhibit "C" to
the Police Contract.
(d). DENIED. The grievance is arbitrable under Article VI and Exhibit "C" to
the Police Contract.
6. DENIED. By way of further answer, the contractual grievance procedure, in
Paragraph 1 0 of Exhibit "C", provides officers with an election of remedies by which they
may challenge discipline under civil service statutes or via arbitration. In addition, the
question of whether the grievance is arbitrable is one for an arbitrator in the first instance.
7. DENIED. By way of further answer, the election of remedies provision
expressly incorporates disciplinary matters into the scope of the grievance arbitration
procedure; therefore, Plaintiff is not likely to succeed on the merits and injunctive relief is
not appropriate.
8. DENIED. By way of further answer, Plaintiff is not precluded from
challenging arbitrability but may make that challenge in arbitration. Defendant Wiser is
currently without his regular wages from Borough employment and is suffering substantial
harm by virtue of the delay in arbitration proceedings. As such, injunctive relief is not
appropriate.
9. DENIED. By way of further answer, Plaintiff has failed to demonstrate the
necessary elements for injunctive relief; namely, substantial harm to Plaintiff, a lack of
substantial harm to Defendants and a likelihood of success on the merits.
2
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10. DENIED. The grant of injunctive relief in this case will adversely affect the
public interest by repudiating a valid and legal provision within the Collective Bargaining
Agreement.
11. DENIED. The law requires that arbitrators decide matters of arbitrability in
the first instance.
12. DENIED. Injunctive relief is not appropriate where, as here, there is a
contractual right to arbitrate the issue and procedural objections are within the jurisdiction
of the arbitrator.
13. DENIED. The Defendants have a clear legal right to proceed to arbitration.
WHEREFORE, Defendants Wiser and the Mount Holly Springs Police Association
hereby request this Honorable Court to issue an Order denying the Petition for Injunctive
Relief and ordering Plaintiff to proceed with the arbitration of the grievance. In addition,
this Court should award Defendants counsel fees and costs for Plajntiff's arbitrary and
vexatious attempt to delay and impede the arbitration of Officer Wiser's dismissal.
Respectfully submitted:
Date: August &, 2000
LlGHTMAN &~
By: ~jJ; C
Eric C. Stoltenberg, Esquire
Attorney I.D. No. 77630
2705 North Front Street
Harrisburg, P A 17110
(717) 234-0111
Attorneys for Defendants
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VERIFICATION
We, Troy Wiser and Darrell Goodhart, Mount Holly Springs Police Association,
Defendants in the foregoing action, having sufficient knowledge and information of the facts
in this case to provide this Verification, do hereby verify that the Answers made in the
foregoing Defendants' Response to Petition for Injunctive Relief are true and correct to
the best of our knowledge, information and belief. We understand that false statements
herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn
falsification to authorities.
J
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TROY ER, Defendant
Q~ ~>M'o~n;j-'lS~jl9'-l>O
DARRELL GOODHART, Defendant
Mount Holly Springs Police Association
Date:
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CERTIFICATE OF SERVICE
I, Eric C. Stoltenberg, Esquire, hereby certify that on thiFdf~day of August 2000,
I served a true and correct copy of the foregoing Defendants' Response to Petition for
Injunctive Relief by depositing same with the United States Postal Service, First Class
Mail, Postage Prepaid, upon the following individual(s):
Keith O. Brenneman, Esquire
SNELBAKER, BRENNEMAN & SPARE
44 West Main Street
P.O. Box 318
Mechanicsburg, Pennsylvania 17055
Attorney for Plaintiff
LIGHTMAN & WELBY
~~~~ ..
By: "'d' ~
Eric C. Stoltenberg, Esquire
Attorney LD. No. 77630
2705 North Front Street
Harrisburg, PA 17110
(717) 234-0111
Attorneys for Defendants
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BOROUGH OF MOUNT HOLLY
SPRINGS,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
CIVIL ACTION - LAW
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
NO. 00-5642
ORDER
AND NOW, this
day of
, 2000, it is hereby ORDERED
that Plaintiffs Complaint in Equity seeking a preliminary and permanent injunction of the
grievance-arbitration process is DISMISSED. The Plaintiff shall proceed with the
arbitration of Defendant Wiser's discharge. It is hereby ordered that Plaintiff reimburse
Defendants for reasonable attorneys fees and costs incurred in defending against the Petition
and Complaint.
BY THE COURT:
J.
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BOROUGH OF MOUNT HOLLY
SPRlNGS,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
CML ACTION - LAW
TROY WISER and MOUNT HOLLY
SPRlNGS POLICE ASSOCIATION,
Defendants
NO. 00-5642
DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT
AND NOW, come the Defendants, Troy Wiser and the Mount Holly Springs Police
Association, by and through their attorneys, Eric C. Stoltenberg, Esquire, and LIGHTMAN
& WELBY, and files this Answer to Plaintiffs Complaint, as follows:
1. ADMITTED.
2. ADMITTED.
3. ADMITTED.
4. ADMITTED.
5. ADMITTED.
6. ADMITTED.
7. ADMITTED.
8. ADMITTED.
9. ADMITTED.
10. ADMITTED.
11. ADMITTED.
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12. ADMITTED.
13. ADMITTED.
14. DENIED as stated. By way of further answer, the July 27, 2000 grievance
form identified as Exhibit "B" to Plaintiff's Complaint is a proper grievance filed pursuant
to the terms and provisions of the Police Contract.
15.(a). DENIED. The issue of police discipline is set forth in Article VI, Exhibit C,
Paragraph 10, which sets forth an election of remedies in which officers may challenge
subjects covered by the Police Tenure Act, Civil Service Provisions, or the Local Agency
Law through the procedures in those statutes or via arbitration. The Police Tenure Act and
the Civil Service Provisions of the Borough Code specifically address the discipline of police
officers and the reference to these statutes renders discipline an issue directly covered by the
grievance and arbitration procedure.
(b). DENIED for the reasons set forth in subparagraph (a), above.
(c). DENIED for the reasons set forth in subparagraph (a), above.
(d). DENIED. Just cause is the standard that applies under the Police Tenure
Act, the Civil Service Provisions of the Borough Code and body of case law concerning the
dismissal of public employees.
16. DENIED for the reasons set forth in paragraphs 14 and 15, above.
17. DENIED. By way of further answer, the election of remedies provision
within the contractual grievance procedure provides a grievance arbitrator with express
jurisdiction and authority to decide whether Defendant Wiser was dismissed for just cause.
2
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18. DENIED. By way of further answer, the clear language of the grievance
procedure demonstrates that the issue of police officer discipline is arbitrable and therefore
Plaintiff is not likely to prevail on this issue or the merits. In addition, Defendant Wiser will
suffer irreparable harm if the arbitration hearing is enjoined because he has lost his regular
pay and employment benefits previously provided by employment with the Plaintiff.
19. DENIED. By way of further answer, Plaintiff has failed to plead any specific
reason that it will suffer irreparable harm and that Defendant Wiser will not by proceeding
to arbitration. Defendant Wiser will suffer substantial harm by enjoining the arbitration
hearing for the reasons set forth in Paragraph 18, above.
20. DENIED for the reasons set forth in Paragraphs 18 and 19, above.
21. DENIED. By way of further answer, an injunction will delay a final
determination on the merits, thereby leaving the police force shorthanded.
WHEREFORE, Defendants respectfully request this Honorable Court grant the
following relief:
a. Deny Plaintiffs demand for an injunction of the pending grievance
arbitration proceeding;
b. Award Defendants reasonable attorneys fees and costs pursuant to 42
Pa. C.S. S 2503(9) in that the law clearly provides for arbitrators to
hear any and all challenges to arbitrability in the first instance, which
renders the commencement of this proceeding arbitrary and vexatious;
3
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c. Grant Defendants such other relief as this Court in its discretion deems
just and appropriate under the circumstances.
Respectfully submitted:
Date: August~, 2000
By: . ~
Eric C. Sto tenberg, Esquire
Attorney LD. No. 77630
2705 North Front Street
Harrisburg, P A 17110
(71 7) 234-0111
Attorneys for Defendants
4
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VERIFICATION
We, Troy Wiser and Darrell Goodhart, Mount Holly Springs Police Association,
Defendants in the foregoing action, having sufficient knowledge and information of the facts
in this case to provide this Verification, do hereby verify that the Answers made in the
foregoing Defendants' Answer to Plaintiff's Complaint are true and correct to the best of
our knowledge, information and belief. We understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to
authorities.
'3-;2 7-0"
TRO SER, Defendant
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DARRELL GOODHART, Defendant
Mount Holly Springs Police Association
Date:
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CERTIFICATE OF SERVICE
'}f'A
I, Eric C. Stoltenberg, Esquire, hereby certify that on thiscZL- day of August 2000,
I served a true and correct copy of the foregoing Defendants' Answer to Plaintiff's
Complaint by depositing same with the United States Postal Service, First Class Mail,
Postage Prepaid, upon the following individua1(s):
Keith O. Brenneman, Esquire
SNELBAKER, BRENNEMAN & SPARE
44 West Main Street
P.O. Box 318
Mechanicsburg, Pennsylvania 17055
Attorney for Plaintiff
LIGHfMAN & WE~
By: ~;:Zf ,"
Eric C. Stoltenberg, Esquire
Attorney J.D. No. 77630
2705 North Front Street
Harrisburg, PA 17110
(717) 234-0111
Attorneys for Defendants
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BOROUGH OF MOUNT HOLLY: IN THE COURT OF COMMON PLEAS OF
SPRINGS : CUMBERLAND COUNTY, PENNSYLVANIA
V.
TROY WISER and MOUNT
HOLLY SPRINGS POLICE
ASSOCIATION
: NO. 2000-5642 CIVIL TERM
: CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 5TH day of SEPTEMBER, 2000, after careful review of the
briefs submitted by each party as well as the authority cited therein, we are satisfied that
the question of arbitrability must be decided by the arbitrator in the first instance. On that
basis, the Petition of Plaintiff Borough of Mount Holly Springs for Preliminary Injunctive
Reliefis DENIED.
Edward E. Guido, J.
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Keith O. Brenneman, Esquire
44 West Main Street
P.O. Box 318
Mechanicsburg, Pa. 17055
Eric C. Stoltenberg, Esquire
2705 North Front Street
Harrisburg, Pa. 17110
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BOROUGH OF MOUNT HOLLY
SPRINGS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
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NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following
pages, you must take action within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and filing in writing with a court your
defenses 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 entered against you by the Court
without further notice for any money claimed in the Complaint or for any other claim 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
(717) 249-3166
SNELBAKER, BRENNEMAN & SPARE, P. C.
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By:
Solicitor for Plaintiff
LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
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LAW OFFICES
SNELBAKER.
BRENNEMAN
8: SPARE
BOROUGH OF MOUNT HOLLY
SPRINGS,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 00- 5(,'1.2 ~ -r~
TROY WISER and MOUNT HOLLY
SPRINGS POLICE ASSOCIATION,
Defendants
CIVIL ACTION - EQUITY
COMPLAINT
The Borough of Mount Holly Springs, by its Solicitor, Snelbaker, Brenneman & Spare,
P. C., submits this Complaint and in support thereof avers the following:
1. Plaintiff Borough of Mount Holly Springs (the "Borough") is a Pennsylvania
municipality with a principal office located at 200 Harman Street, Mount Holly Springs,
Cumberland County, Pennsylvania.
2. Defendant Troy Wiser ("Defendant Wiser") is an adult individual residing at 114
South High Street, Newville, Cumberland County, Pennsylvania.
3. Defendant the Mount Holly Springs Police Association (the "Association") is the duly
recognized collective bargaining representative of the police officers ofthe Borough of Mount
Holly Springs.
4. On June 12,2000 at a regular public meeting of the Borough Council, the duly elected
corporate authorities of the Borough of Mount Holly Springs, Plaintiff removed Defendant Wiser
as a police officer of the Borough of Mount Holly Springs effective June 12, 2000.
5. Written notice of the removal of Defend ant Wiser as a police officer of the Borough of
Mount Holly Springs, including a statement of charges, was given to Defendant Wiser by
Plaintiff through letter dated June 13, 2000.
LAW OFFICES
SNELBAKER,
BR~NNEMAN
& SPARE
6. At the time Defendant Wiser was removed as a police officer in the Borough of Mount
Holly Springs, there existed a police contract between the Plaintiff Borough of Mount Holly
Springs and Defendant Association (hereinafter the "Police Contract") applicable to the calendar
year 2000 and 2001. A true and correct copy of the Police Contract is attached hereto and
incorporated by reference herein as "Exhibit A".
7. On June 19, 2000 Defendant Wiser submitted a Grievance Form to the Mayor of the
Borough of Mount Holly Springs, claiming, inter alia, that just cause did not exist to warrant the
imposition of his dismissal as a police officer or for discipline of Defendant Wiser of any kind.
8. On June 26, 2000 the Mayor ofthe Borough of Mount Holly Springs denied the
grievance of Defendant Wiser.
9. On June 26, 2000 Defendant Wiser submitted a Grievance Form to the Public Safety
Committee ofthe Borough Council of the Borough of Mount Holly Springs.
10. By letter dated July 3, 2000 the Health, Safety and Welfare Committee, successor to
the Public Safety Committee, notified Defendant Wiser that his grievance had been denied.
11. On July 4, 2000, Defendant Wiser submitted a Grievance Form to the Borough
Council of the Borough of Mount Holly Springs.
12. The Borough Council of the Borough of Mount Holly Springs, by letter dated July
12, 2000 notified Defendant Wiser that his grievance had been denied.
13. On each occasion where Defendant Wiser was advised in writing by the Mayor,
Health, Safety and Welfare Committee and Borough Council that his grievance had been denied,
Defendant Wiser was advised either that a question existed as to whether Defendant Wiser's
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LAW OFFICES
SNELBAKER.
BRENNEMAN
& SPARE
alleged grievance constituted a "grievance" subject to the procedures set forth in the Police
Contract or that the subject matter was not a grievance, and that denying the grievance did not
constitute a waiver ofthat question.
14. By Grievance Form dated July 27,2000, Defendant Wiser and Defendant
Association purported to appeal the grievance of Defendant Wiser to binding arbitration in
accordance with Step D of the contractual grievance procedures of the Police Contract. A true
and correct copy of the Grivance Form dated July 27,2000 is attached hereto and incorporated
by reference herein as "Exhibit B".
15. The subject matter of the Defendants' grievance about which they now seek binding
arbitration is not arbitrable under the Police Contract for the following reasons, among others:
a. Nowhere in the Police Contract is the subject matter of dismissal, removal
or discipline of police mentioned, referenced or discussed;
b. By the clear language of the Police Contract and by obvious omission, the
Police Contract did not intend to encompass the matter of dismissal, removal
or discipline of police;
c. The removal of Defendant Wiser as a police officer is not a "grievance" as that
word is defined in Exhibit C of the Police Contract; and
d. "Just cause" is not a standard recognized in the Police Contract that serves as
a basis for the dismissal, removal or discipline of police.
16. For the reasons set forth above, the Police Contract is not susceptible to an
interpretation that covers the dispute that Defendants claim has arisen.
17. For the reasons set forth above, an arbitrator has no authority to address the question
of whether there was just cause for Defendant Wiser's removal.
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18. Forthe reasons set forth above, injunctive relief is appropriate to abate and enjoin the
binding arbitration procedure initiated by Defendants.
19. For the reasons set forth above, immediate and irreparable harm not compensable by
damages will result if the binding arbitration procedure initiated by Defendants continues to
conclusion.
20. For the reasons set forth above, greater injury will be done by refusing an injunction
as requested herein than by granting it.
21. For the reasons set forth above, the grant of an injunction will not adversely affect
the public interest, but will restore the status quo.
WHEREFORE, Plaintiff Borough of Mount Holly Springs requests this Court to:
a. Enjoin preliminarily and thereafter permanently the arbitration proceeding
initiated by the Defendants with respect to the grievance of Defend ant Wiser;
b. Award Plaintiff reasonable counsel fees and costs of this litigation; and
c. Grant Plaintiff such other relief as this Court in its discretion deems just
and appropriate under the circumstances.
SNELBAKER, BRENNEMAN & SPARE, P. C.
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LAW OFFICES
SN~LBAKER,
BR~NNEMAN
&. SPARE
BY:
Keith O. Brenneman, Esquire
44 W. Main Street
Mechanicsburg, P A 17055
(717) 697-8528
Solicitor for Plaintiff
Borough of Mount Holly Springs
Date: August 15, 2000
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LAW OFFICES
SNELBAKER.
BRENNEMAN
8: SPARE
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VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct. I
understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section
4909 relating to unsworn falsification to authorities.
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Borough Council President
Borough of Mount Holly Springs
Date: August 15, 2000
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POLICE CONTRACT FOR THE MOUNT HOLLY SPRINGS POlleE ASSOCIATION
OFFERED BY 1HE MOUNT HOLLY SPRINGS BOROUGH
FOR YEARS 2000,2001,
December 29, 1999
ARTICLE 1- FORM
SECTION I - HEADINGS
Any headings preceding the text of1lle several articles hereof are solely far the convenience of
reference and are Dol; themselves, opentive terms of agreement, 8IId are not intended to aftett the meaning,
oonS1nlClion or effect of any herein.
SECTION 2 - LANGUAGE
Unless otherwise provided herein, the mllJCUline pronoun shall include the feminine, the singular
nUlllber sbaIl include the plural and vice vena and all officers will be included where applicable. Any
ditforentialion between FULL TIME and PART TIME officers will be clearly stated.
SECTION 3 - SA VlNO CLAUSE
In 1IIe event bat any provision contained in 1IIe Contract is in contJict wi1ll any slalulcs of the
Commonwealt!l ofJ>enmylvania, Federal lllatutes, Federal ot Slate directives, or rules or regulatilllS of any
deparllllental agency of the saici State or Federal government now in effect or baeafter to become effective,
by reason of the decision of any Court havingjurisdiclion, and found invalid or unlllfurceable, it sball nOl
affect or impair any of its odIer terms an provisions.
ARTICLE ll- RECOGNmON
SECTION I -PARTIES
The Borough, pursIWIl to Act 111 (43 P.S. 217.1, ctseq.), hereby recognize the AssoclatiOll as
the exclusive eollective bargaining representative of all its police Officer employees for the pmposes of
negotiations with respect to tileii' wages, hours and odIer terms mol conditions of employment by the
Ilarough.
ARTICLE lll- MANAGEMENT
SECTION 1- GENERAL .
The Borough shall have and retaio, solcly and exclusively, all managerial privileges and
respDl1Sibililies recognized and established at law.
ARTICLE IV - HOURS OF WORK AND OVERTIME
SECTION 1- DEFINITIONS AND WAGES
A. WORKDAY
The normal workday is establisbed 88 the twenty-four- (24) hour period commencing at
0701 hrs.and ending at 0700 brs.1IIe foIlowing calender day.
EXHIBIT A
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B. WORK WEEK
1hcnormal wor~ is established 85 the seven ( 7 ) day period commencing at 0701 hrs. 011
Monday and cndiDg at 0700 hrs. 011 the following Mond&)' of each calendar'week, The officers of
the Association will base a fOl't)l(40) hours of work as normal work hours to complete 8 week
C. WORK SHIFT
The CllIJllO}'Ce as scheduled by the Mayor or bis au1horized designee establishes the nonnal work
shift as any ten-{IO) conse<:Ulive hour periods commencing from the start of such work to.
D. WAGES AND SALARY PROVISIONS
The wages and salaries arc as doCumented in the altlIcbed Exhibit "A" 8lld sbalI be a part oflhis
contract benc:eforth.
E. OVERTIME RATES
Ovortime rates for all officers sb8I1 be one and onc~.balf ( 1-112 ) times the established rate in
ART. IV; SEe. 1; PARA. D. avemme sbal1 be paid when an officer or chiefworks in extc!lll of
tile tell ( 10) hour work day or past the forty hour work week as defined previously.
F. ON CALL STATUS
The raie ofs 1.$0 por hour shall be paid for "On Call StatuJ~. All on call status must be pre-
approved by the Cbief and the Mayor.
ARTICLE V - EMPLOYEE BENEFITS
EmplO)'CC benefits will be as defined in 1IIe fullowing pages headed as employee benefits.
ARTICLE VI - GRIEVANCE PROCEDURES
TIle griewnce pvc:Edw'es outlined in'EXHIBIT 'C' which is aaadled hereto IIld made
part hereof lIball be utilixed by tho parties to n:so1ve any gri_
ARTICLE VII - MODIFICATION PROCEDURE
This CXlIItract may not be modified aft<Ir the start of the term of1lle COI1lIllCllDlless agt'Ced
upon by both of the psrties involved.
ARTICLE VIU-EFFECTIVEDATE
The cfl'ective date oftbis con1ract shall be January I, 2000 until Deamber 31, 2001
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EMPLOYEE BENEFITS
This benefit shall only be applicable to the full-time police officers employed by
the Borough unless odIerwise specifically noted. .
SECTION 1- LEA VB
A. VACATION LEAVE
Each fuD time offi""" shall be enlitled to paid wcatiotlleave according to lhe following
schedlllc:
40 hDllrS - After one (l) complete year of service (during the _d year)
80 hOllrS -After two (2) complete years of service to the end of1l1e furtb (4) year.
Aft... four (4) complete years of service, ten {I 0) hours arcaclded for each year ofserviee.
EXAMPLE: During the fifth year of service an officer would be entitled to 90
hours of vacation.
Vacation is to be scheduled with 1IIe Chief and approved by the Mayor or his designee
li"om council if necesaary, lbiny (30) dayll in advance. Vou:ation dates as scheduled may
be modified with the approval of the Chief and 1IIe Mayor.
NOTE: OffiCERS MAY CARRY ONE WEEK VACATION lNtOTHE
FOLLOWING CALENDAR YEAR. ANY TIME BEYOND 1HE ONE WEEK WILL
aE PAlDT01HE OFFICER AT YEARBND.
B. SICK LEAVE
Paid sick lee.ve shall be acx:rued by iUU-time police officers at a tate of one and one half
(I -112) days for each completed molllh. of service, up to a maximUll1 of ninety (90) days
of lICClUcd sick leave.
Any officer tbat has three consecutive day> off as sick leave mwt submit a doctor'.
ex~ upon return to wmk in 0I'deI- to receive the lOO"~ sick leave pay.
Sick I,.VIl will bave a 90 day ceiling at whidl any time over the 90 days will receive 25%
campemation in the Jut pay of the year. Any officer which is Dol scheduled due to
injury, ie. Workers CompematiOll will not bIIild sick time IlIItil reinstated to duty.
C. HOLIDAY LEAVE
The following are holidays to be observed; NEW YEARS DAY, PRESIDENT'S DAY,
GOOD FRIDAY, MBMORIAL DAY, INDEPENDENCE DAY, LABORDAY,
COLUMBUS DAY, THANKSGIVING DAY, CHRISTMAS DAY, and THE
OffiCERS BIRTIIDAY
A full time police officer shall be paid fur aH holidays IS described in 1IIe
conllBCt, whetb.. !!dt4ldulcd to work or not. It is the scheduled employcc'. descnotion 011
whether he >Nisbes to work that day 1hrougb nolificatlOll to 1IIe c:hieffi1teen days prior to
1IIe holiday. An officer Ihat dlooses to work OIllhe holiday will receive 10 hours holiday
straiglrt pay and also 10 bOUl'll straight pay for the worked shift .
Any officer working 011 the holiday will receive the equivalent of double the
hourly rate aft.. the work shift continues past the 10 hour standard.
The holiday will be reeogniud m 1IIe actUal day lhat it liIlIs without ClCQ!plion.
D!'
PART-TIME OffiCERS WILL ONLY BE PAID OVERTIME IF THE HOURS ARE
IN EXCESS OF FORTY HOURS OR MORE THAN TEN HOURS
CONSECUTIVELY.
D. BEREAVEMENT LEAVE
A full time officer shall receive three (3) days paid bereavement leave, if assigned to duty, upon
the death of811yofthe tollowingmembers of the emplO}'Ce" or spouses immediate filmily:
GRANDPARENTS. PARENTS, SPOUSE, CHILD, or SIBLING. The bereavement pay and/or
leave would end on the day of fimeral.
E. PERSONAL DAYS
. Each full time officer will havc three emergency days which need nol be scheduled
in advance of the tilDe off.
. the remaining two days arc required to havc a minim\llll oCthrcc days notice fur
approval to case the rtplacemmt of said officer on 1IIe schedule ifnecessary.
F. COMP TIME
At 1IIe cplion oCtile officer, the said officer may choose to take COllIp time nllh... than overtime_
For each hour oC overtime, any hours worked in excess oCtlte daily scheduled work shift or in
excess of the weekly $Cb.eduled work shill, time the officer shal1 t<lCCivc 1-112 hours of comp time
for every hour oC overtime worked. Offic8{$ may not _ulatc men !han 40 hours of comp
time. Use of camp time will be scheduled wi1ll and approved by the Chief and Ihe Mayor. Use of
!he said time win require a minimmn of24 hours notice and sha/I be gnnted only if anolhet
officer can cover the time 1IIe officer isrequesling to be off. Any hours acc:umuIated at \he end of
1IIe calendar year nol used will be paid to the officer at the straight time hourly rate times the
n\llllber ofremaining hours.
SECTION 2 -INSURANCE
A. HEALTH INSURANCE
Unless hee1ll1 iusurance exists li"om anodler source, after sixty (60) days oC employment, the
Borough shall Fovide coverage for each full-time emplO}'Ce and his filmily with ll1e Mt. Holly
Group Plan (Blue Cross -120 day I Blue Shield major medical $ 1,000,000.00 lite-time
maxim\llll). If an officer has coverage fron1 an alternate source, helshe may apply fur and receivc
of one balf (112) the cosl ofborough supplied coverage that has nol beon used by he employee.
B. LIFE INSURANCE
Lite insurance in 1IIe amount of S 25,000.00 sha/I be provided to 1IIe full-time police officen.
SECTION 3 - USE OF PERSONAL VEHICLES
1. An officer is NOT required to use a pmooal whiclc for invcmgatOr)" or palrol
work provided a Borough police vehicle is available.
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2. Should on officer be requO:ecIto use a persooal vehicle because oC a Borough
police vehlc:le is not available or 1I1e nature of1l1e duly would be impeded by the
Ulle of 1IIe Borough police >ehicle, the officer shall be reinlbursed fur the we of
Hess vehicle 111IIe l'ale oC $ 0.3' per mile or in 1IIe case of a fixed positiOll, the
use in that situation shall be reimbursed at a rate of$ 1.00 per hour, based on 1IIe
greater llDounl of reimbursement.
3. An officer may be required to use a personal vehicle fur the Court atteodance at
and sllaR be reimbursed at the tate of S O.JS per mile.
SEcnON 4 - CLOTHING AND ALLOITMENTS: FULL &: PART TIME
The Borough shaU provide new full-time and part-time officers with all equipmCllt reoulred with
the exception of the individuals ...vice weapon and holster fix- lbat weapon to comply with the
depallment's IlllilOnn. policy. Also, all part-time officers must provide the reimbursem""t fur the
psycbialric evaluatioM in full prior to hiring of each indivi.dual candidate.
Full time offie<<s may purdwe replacement hoble1S fix- their...vice weapon 0Ul of the clothing
allOllllCllt ClIIly after 1IIey JlUl'thue 1IIe initial holster that complies witb dep;u:1menl policy. llOoIs
win be purchased &om clothing allotment as needed by full and part time ofIicers.
the foIlowing uniform will be provided fur each new full and part-time officer as listed
below:
FULL- TIME OFFICERS
ONE (1) EACH - Coat (wintor), Light weight jacket, Rain Coat, Campaign Hats (straw and felt)
wi accessories, Gloves (1 pair)
TWO (2) EACH - Neck Ties
rnREE (3) EACH - Shitts (SIIJIIlDer and winter)
FOUR (4 )EACH-Slacks
PART-TIME OmCERS
ONE EACH - Coat (winter), Light weight jacket, Rain coat, Campaign hats (straw'and telt), wi
accessories
ONE ( I ) - EACH- Neck tie
lWO (2) EACH - Shitts (summer and winter)
TIlREE ( 3) EACH - Slacks
Afta- the first year of emplO)'lllent: each full-time officer aball be permitted S 575.00 per
year allowance fer equipment and llllifcrms. Eadl part-time officer will be penniUed a percentage
ofs 575.00 per)aT bused on the R\IlIlber oChours worked for 1IIe &rough during lbe last
calendar year, compared to 1IIe base hours oCa full-time officer (2080 hrs.1 year).
SEcnON 5 - AMMUNITION: ALL EMPJ..OYED OmCERS
The Borough shall provide all ammunitiOl1 that the dcpar1lDenl requires fur their ofticiol
Wle and required practice.
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SECTION 6 - PROTECTIVE VESTS
the Borough !hall provide protective vests as Deedai for duty to all the full-time and
part-time offiCCl8 and thi$ item is nol to be deducted from the officers clothing allotment
SECTION 7 - PENSION PLAN
As provided in Chapter" I, Sedioo 41, et seq., the police pension which was e:stabli!hed
therein shall DO longer be subject to the Social Securily Offi;et as set furth in Section 48. The
pern;ion will be vested to all officers on the twelfth (12) anniversary of their hiring. The ntirement
benefit will be calculated at 50% oCthe officer's average mootbly pay during the last 36 mODths
employment. Pi_lily benefits of 50% will be provided through the pension plan subject to a
Workmen's Compensation offset.
THE PENSION PLAN MAY Bt:: LOWERED TO 20 YEARS IF 1HE omCERS AGREE TO
CONTRIBUTE TOmE PENSION FROM EACH OffiCER AFIER 1HE TWENTY YEARS
AS DESCRIBED BY THE STATE PENSION PLAN WHICH CURRENTLY REMAINS AT
TWENTY-FIVE YEARS FOR RETIREMENT.
EXHIBIT .. A ..
BASE WAGES PER HOUR
CHIEF OF POUCE
PATROLMAN
PART-11MB
PART-TIME (PROBATION)
2000
$16.87
S 14.97
$ 1282
S 11.82
2001
17.52
15.62
12.97
11.97
The above wage scale is based on a flat tate oC S .65 for year 2000, and S .65 for ycir 2001, full
timescale. Pwttimewageswill be based on a flat rate ofS .15li>r year 2000 and $ .15 fur 2001.
NEWLY HIRED OFFICERS:
FULL-TIME
Newly hired officers are:required to be Act 120 certified and will receive $ .50 lC:Sll than cunent
contrIlct wage during probation period.
PART-TIME
Newly hired officers are required to be Act 120 certified and will receive the part-time wage and
.Must be subjeCt to a probation period of at least six months, but no 1000SOl'than one year fi:om the
date of hire. .
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Part-time candidates must pay fur all psychiatric evaluatilll\li prior to empJoyment opportuoities
with 1IIe BorougIL ~ time candidates wiD bave to go to an assigned physician bytbe Borough,
for the medical exam at 1IIe Borough expense.
LONGEVlTYPAY:FULL TIME OFl'ICERS ONLY
S 175.00 por year with a S 2,200.00 "",ling, bued on full-time year's semce to be paid after 1IIe
compleliOll oftbree- (3) year's fuJI-time servi....
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POLICE Ass~nON PRESIOENTllOUG ClL PRESIO~
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BORO HSECRETARY MO LLYSP OSMAYOR
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EXHIBIT .C.
'Grievance Procedure
1. IlEFINITldNS I
A. A -Grievance. II a dilpute artslnq out of ~he
Int~rpr.tation, misapplication or violatloft of
the te:nlll of. the Aqreement..
B. -Day. Ihall mean workIng day.
C. .Assoclation Jepreaentative- i. an appointee of
the Allociatlon for the purpo.e of participating
In the vrievance procedure.
,P. -~plcyer' il the Borough Council of Mount Bolly
Spdnql.
J. .Assoclation- i. the Mount Holly Spring. Police
Aalochtion.
2. KANNER OF FILINC
Each ,devanee Shall be aubmitt.ed In wdting to the Mayor or
hi. desiqne. on a form approved by both partie, and provIded by
the E1nployer. Ill. fo:t;1\l ahall provide for the inurtlon of the
Identity of the aggrieved party 'or partie., ~h. date of filinq,
the providon of the cont.rac't involved, 1rtc1uc.flng the particular
.ubp&ragraph, and a brief narrative de.crlption of the nature of
,'the lJrlevance, and shall specity the nUle of the 8qgdeved
party. '
3. 'lIME LIMITATIONS
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A.
A qriev.nce not filed w1thin the limit. ..t&~liBhed
herein .hall be deemed Invalid. The number of" day.
1n41catedat each atep in tile procdure h .
IIIAximum. '1'boere 1. DO lDJ.nilD~lI.
No grievanCe ahall be fJ.led or anr meeting held to
4i1cu.. the re.olutlon of any vrlevance d~rin9 the
work c1ay unle.. byautual alJreUlent.
4 . Il.EPLY
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.. 'Any nply Ihall be 111 wdUng. "lbe reply shall be a part of
the fOrlllo~ attached tile.reto. COpl.. ahall be fllrnilhd to tbe
vdevllnt, =the,:""oclat.ion, ane! to the Mayor, Chairman of t.he .-
Public: Safety Collllll.s't.t.ee, and 'nddut. of Iorou'ih Coundl. '
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EXHIBIT "e"
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I. 5.
STEPS IN THE PROCEDURE
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STEP A. (1) The person or persons initiating. the alleged
grIevance .h~l~ present.the grievance to the Mayor or hi.
de.ignee within one week after itl occurrence. The Kayor .hall
Eeply to the grievant within on. week after the initial
presentation of thl grievance. !n the event there il a meetin9,
the ag~rleved party may be accompanied by a representative of
the Bargaining Age~~ at thi. level of the grievance procedure.
(2) The' chain of command is as followsl grievant,
Mayor, Borough Council P~blic Safety Committee, Borough
Council. It i. intended hereby that grievances progre.. through
this ~haln and be resolved, it ~ssible, at the low.st level.
STEP a. If the action in Step A fail. to resolve the
tjrievance to the .atbfaeUoll of t.he affected partie.. t.he
grievance ~ay ~e referred to the Employer's Public Safety
Committee within 4 days of the determination ~ad. in Step A, and
the - c;rieval)t notified in writing of the action taken. 'lh.
Public safety Co~i~tee Iha11 make II decision and shall indicate
--their'disposition to the godevant ",h.hin one week after referrAl
t.o thelll.
"
STEP C. tf the action taken at Step B faill to re.o1vl the
grievance to the latilfaction of the affected partiel, the
9rIevance Ihall be referred by the grievant to Boro~9h Council
within five (5) 4ay. after receiving t.he report of the Public
Safety Collllllittee. 'lhe JlQrcugh Council .hall sClvhe the IJd..vant
of itl deci.lon with 15 4ays after rlceipt of l~l..ion. .
st~PO. If the action in Step C faill to resolve the
'1r1evAnca to the satisfaction of the IJr1evant,the grievant lIlay
refer the IJrievance to binding arbit.ration'and t.he Employer and
the A"OClation shall each pay one-half (1/21 of the COlt. of
arbitration. A requelt for binding arbitration, to be
operativ., m~.t b. lIl.de within 30 day. of recdpt of lorouih
Council'. 4ecilion.
6. It. i. contemplated that the Borouvh and the AI.oeiatloft
.hall lIlutually agree in writing .1 to the Itat.elllen~ of the
matter to be arbitrated prior t.o & bearing and Ihall attempt to
lelect an Arbit.rator 1:11' autud agr..Mnt. 'aUini t.o 40 10,
either ~arty .ay ~eque.t LU. for. 1111: froil "hlch an arbitrator
,,111 ~. aelecte4 un4er u.A rill... .'fhe arbitrator .hall confllle
. ilie 4.c1l10n t.O 1 l'artlcul&r .Utu -'huI lpaeifled by the
patUn. . . . '.
7. Bach ~art.y lhall bear t.he expen~e elf itl awn witn..... and
of it.s own reprelentaU.,.I. ~. parUn ,ball bear equally the
. eXpeAle of the 1IIlpart.lal ar1:l1t.rat.or. 'lb. put)' <<eddng a "
tranlcrlpt of the bear1ll~ "ill beaZ' ~e COlt of lua. . ;.
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8. Copies of i:he .ward of the 'arbitrator made in accordance .
with the jurisdiction of authority under this Agreement shall be
furnished to both partiel with!n thirty (301 day. of the hearing
and Ihall bel f1f'al and binding on both partin. .
9. If the ~plorer doel Dot reach a decilion within the time
limitl let forth In i:he foregoing procedure, the vrlevant Ihall
be entitled to move the grievance on to the next atep. If the
employee does not move it to the ~8Xt step within ~h. tl=e
e.tabllahed, tbe laat determination sh~ll be conaidered final.
10. 'The arbitrator shall have authority to interpret and apply
agreement term I but Ihall not add to, detract from or alter .
avreement terml. If the SUbject ~tter involvel the Pollee
Tenure Act, Civil Service It.tute., the Local Agency or similar
law. and regulation. and the employee utili~e' luch proce.., any
.tep. along the grievance procedure shall c.ase,
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Mount Holly Springs Police Association
Grievance Form
Name of Grievant: Officer Troy Wiser
Type of Grievance: Discipline
Date of Discipline: June 26, 2000
Contract Section(s): Article VI, "Grievance Procedures"
Exhibit C "Grievance Procedure"
Explanation: .-
On or about June 19, 2000, the Grievant, Troy Wiser, filed a grievance with the
Mayor, Robert H. Otto, protesting his discharge from employment. A true and correct
copy of that grievance is attached hereto. The substance of the grievance is as follows:
On June 13, 2000, this Grievant was notified of allegations made by Michelle R.
Gehr and the resulting investigation of those allegations.
As a result of those investigations, this Grievant was charged with conduct
unbecoming an officer and was removed from the Mount Holly Springs police
Department pursuant to the relevant provisions of the Borough Code.
Just cause does not exist to warrant the imposition of dismissal from the police
force orlor discipline of any kind.
The Mayor did not respond to the grievance in a timely fashion. A response
was eventually received denying the grievance. The Grievant appealed the grievance to
the Mount Holly Springs Borough Council Public Safety Committee pursuant to Step B
and Paragraph 9 of the contractual grievance procedure. The Committee issued a
response dated July 3, 2000 denying the grievance. This response provided that the
discharge is not a grievance within the meaning of the collective bargaining agreement.
The Grievant appealed the grievance to the Mount Holly Springs Borough
Council pursuant to Step C of the contractual grievance procedure. Borough Council
denied the grievance on July 12, 2000. The Council's response provided that the
discharge is not a grievance within the meaning of the collective bargaining agreement.
EXHIBIT B
-..;;---- -
-.= ,
The Grievant and the Police Association now appeal the grievance to binding
arbitration in accordance with Step D of the contractual grievance procedure. This
appeal of the discharge action is for the reasons set forth above and in the original
grievance. The Borough lacked just cause to terminate this Grievant's employment.
The discipline and dismissal of a police officer is a grievance pursuant to Article
VI, Grievance Procedure, which covers "any grievances" and Paragraph 10 of Exhibit
C, which provides officers with an election of remedies. Officers may challenge
discipline through civil service procedures or the grievance procedure. This Grievant
has chosen the grievance procedure.
Remedy Sought:
Reinstatement to my former position with all back pay and benefits, deletion of
any reference to this matter from my personnel file and any and all remedies deemed
appropriate to make this Grievant whole.
Step D to the Binding Arbitration
~ IJJ~_
Date
7- 27- dO
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-05642 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BOROUGH OF MOUNT HOLLY SPRINGS
VS
WISER TROY ET AL
CHIEF DEP. RON ANDERSON
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within NOTICE & PETITION FOR
was served upon
MOUNT HOLLY SPRINGS POLICE ASSOCIATION
the
DEFENDANT
, at 0014:30 HOURS, on the 15th day of Auqust
, 2000
at CUMBERLAND CO. SHERIFFS' DEPT. 1 COURTHOUSE SQUARE
CARLISLE, PA 17013
by handing to
PRESIDENT, SECT./TREASURER)
DARRELL GOODHART (ACTING
a true and attested copy of NOTICE & PETITION FOR
together with
PRELIMINARY INJUNCTIVE RELIEF, NOTICE &
COMPLAINT IN EQUITY
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
6.00
.00
.00
10.00
.00
16.00
So Answers:
~~,.-~~~,
R. Thomas Kline
08/21/2000
SNELBAKER,
Sworn and Subscribed to before By:
me this 7 r:- day of
_ J;,..l:e.-L. -' ~ A.D.
n ..~ a ~,1Ij4
7hothonotary'
<,..>-~ -~
li/llr-'
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-05642 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BOROUGH OF MOUNT HOLLY SPRINGS
VS
WISER TROY ET AL
WILLIAM DIEHL
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within NOTICE & PETITION FOR
was served upon
WISER TROY
the
DEFENDANT
, at 0014:02 HOURS, on the 18th day of August
, 2000
at
15 E BIG SPRING AVE
NEWVILLE, PA 17241
by handing to
TROY WISER
a true and attested copy of NOTICE & PETITION FOR
together with
PRELIMINARY INJUNCTIVE RELIEF, NOTICE &
COMPLAINT IN EQUITY
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
7.44
.00
10.00
.00
35.44
So ;;;~~~
R. Thomas Kline
08/21/2000
SNELBAKER, BRENNEMAN & SPARE
me
Sworn and Subscribed to before
this 1 ~ day of
~ ';UnJi) A.D.
~~~I~'
By:
~~iff