        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Berks-Lehigh Regional Police       :
Officers Association               :
                                   :
            v.                     :          No. 1407 C.D. 2017
                                   :          Argued: September 14, 2018
Upper Macungie Township, Topton    :
Borough, Lyons Borough, and        :
Maxatawny Township                 :
                                   :
                                   :
Appeal of: Upper Macungie Township :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge (P.)


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                          FILED: October 17, 2018


             Appellant Upper Macungie Township (Upper Macungie) appeals from
an order of the Court of Common Pleas of Berks County (trial court), dated
August 31, 2017. Following a non-jury trial, the trial court entered a verdict in favor
of Appellee Berks-Lehigh Regional Police Officers Association (Association) and
against Upper Macungie in the amount of $564,084.07 and in favor of Appellees
Topton Borough (Topton) and Maxatawny Township (Maxatawny) and against
Upper Macungie for attorneys’ fees incurred by Topton and Maxatawny in
connection with the dissolution of the Berks-Lehigh Regional Police Commission
(Commission). For the reasons set forth below, we reverse.
                                    I. BACKGROUND
               We previously summarized the undisputed background facts of this
case in our unreported decision of Berks-Lehigh Regional Police Officers
Association v. Upper Macungie Township (Pa. Cmwlth., No. 786 C.D. 2016, filed
Jan. 12, 2017) (Berks-Lehigh I):1
               On January 1, 1991, [Maxatawny], [Topton], and Lyons
               Borough [(Lyons)] (collectively, Participants) established
               the [Commission2] for the stated purpose of increasing the
               quality and efficiency of police protection for the
               Participants. The effect of the Commission was to
               establish a unified policing district, the Northeastern Berks
               Regional Police District, which allowed the Participants’
               formerly separate police departments to operate across any
               of the Participants’ municipal boundaries.
                      On December 26, 2000, the Participants agreed to
               amend the Commission’s charter [(Commission’s
               Charter)] to include [Upper Macungie] as an additional
               participant . . . .[3] On December 3, 2007, the Commission
               entered into a collective bargaining agreement (CBA) with
               the [Association], a duly recognized bargaining unit for
               fulltime police officers in the Berks-Lehigh Regional
               Police Department (the Department). The CBA covered
               the years 2008, 2009, and 2010. On January 24, 2011, the
               Commission and the Association participated in an interest
               arbitration pursuant to what is commonly referred to as the
               Policemen and Firemen Collective Bargaining Act or
               Act 111, Act of June 24, 1968, P.L. 237, as amended,

       1
         Pursuant to Section 414(a) of the Commonwealth Court Internal Operating Procedures,
“[a]n unreported opinion of this [C]ourt may be cited and relied upon when it is relevant under the
doctrine of law of the case, res judicata or collateral estoppel.”
       2
        At the time of its establishment, the Commission was named the “Northeastern Berks
Regional Police Commission.”
       3
         Participants renamed the Commission to “Berks-Lehigh Regional Police Commission” at
the same time that they amended the charter to include Upper Macungie as an additional
participant. All further references to the term Participants in this opinion shall include Upper
Macungie.

                                                2
43 P.S. §§ 217.1-.10. As a result of the January 24, 2011
arbitration, the arbitrators issued an award, providing that
the Commission and the Association shall enter into a new
agreement, which shall be effective retroactively from
January 1, 2011, until December 31, 2013.
       On March 19, 2012, the Commission held an
executive session at which [Upper Macungie] moved to
withdraw from the Commission effective at the end
of 2012. On April 17, 2012, the Commission voted to
close the Department effective December 31, 2012. As of
December 31, 2012, the Commission disbanded the
Department and terminated the employment of all
Department police officers.
       On May 16, 2012, the Association filed a charge
with the Pennsylvania Labor Relations Board (PLRB)
pursuant to Act 111 and the Pennsylvania Labor Relations
Act (PLRA), [Act of June 1, 1937, P.L. 1168, as amended,
43 P.S. §§ 211.1-.13,] alleging that the Commission
engaged in unfair labor practices by failing to engage in
collective bargaining or interest arbitration over the impact
of [Upper Macungie’s] withdrawal from the Commission
and the subsequent closure of the Department. By
decision dated June 7, 2012, the PLRB declined to issue a
complaint and dismissed the charge of unfair labor
practices after determining that the charge was filed
prematurely.
       On May 20, 2013, the Association and the
Commission participated in an arbitration before a panel
of three arbitrators to determine the impact of the
Commission’s decision to disband the Department. On
April 26, 2014, the panel issued an award titled
“Act 111 Impact Arbitration Award” (the Award). The
Award purported to be pursuant to Section 4(b) of
Act 111, 43 P.S. § 217.4(b). The panel framed the issue
before it as “what is the impact of the Commission’s
decision to no longer provide police services by
disbanding its police department[,] how the impact of that
decision shall be addressed and what remedies, if any shall
be provided.”
       The Award addressed numerous issues relating to
the dissolution of the Department, including: (1) reference

                             3
letter[s] to be given to officers employed as of the date of
dissolution, (2) ongoing maintenance of personnel files,
(3) cooperation on ongoing arrests and active criminal
cases, and (4) recall of officers in the event that the
Department        is   re-established    on     or      before
December 31, 2014. Notably, the Award provided that
“[a]ll other proposals of the parties regarding the impact
of the Commission’s decision to disband its police
department which are not addressed in this Award have
been fully considered by the Panel and rejected by a
majority of the same.” The Award also provided that
“[t]he Panel shall retain jurisdiction for ninety (90) days
from the date of this Award for the limited purpose of
addressing any issues involving the implementation of the
terms of the within Award.”
       On November 7, 2014, the Association filed a
complaint in the trial court against the Participants,
alleging that the CBA was a valid contract between the
Participants and the Association and that the Participants
breached that contract by disbanding the Department prior
to the expiration of the CBA on December 31, 2013. On
December 15, 2015, [Upper Macungie] filed a motion for
summary judgment in the trial court, arguing that the
Association raised [its] breach of contract claim . . . before
the May 23, 2013 arbitration panel and that the
Association’s complaint should be dismissed because the
Award resolved all of the claims therein. The trial court
denied [Upper Macungie’s] motion for summary
judgment without opinion on March 16, 2016.
       On April 12, 2016, [Upper Macungie] petitioned the
trial court to amend its March 16, 2016 order to include
the interlocutory appeal language prescribed by 42 Pa.
C.S. § 702(b). By order dated April 14, 2016, the trial
court denied [Upper Macungie’s] request to include the
interlocutory appeal language. On May 16, 2016, [Upper
Macungie] petitioned this Court for review of the trial
court’s denial of [Upper Macungie’s] request to include
the interlocutory appeal language. On June 14, 2016, we
granted [Upper Macungie’s] petition for review to
consider whether the trial court lacked jurisdiction over
this matter because the matter was either controlled by

                              4
             arbitration or was within the exclusive jurisdiction of the
             PLRB.
Berks-Lehigh I, slip op. at 1-5 (footnotes and citations omitted).
             By opinion and order dated January 12, 2017, this Court concluded:
(1) the Award was an interest award and not a grievance award, and, therefore, the
Award was not final and binding with respect to the Association’s breach of contract
claim; and (2) the trial court has jurisdiction to consider the Association’s breach of
contract claim because the Association’s breach of contract claim does not allege
any unfair labor practices and the CBA does not set forth a grievance process. As a
result, this Court affirmed the trial court’s order denying Upper Macungie’s motion
for summary judgment.
             The trial court held a non-jury trial on July 31, 2017. At that time, the
Association presented the testimony of William Easparro (Easparro), President of
the Association. (Reproduced Record (R.R.) at 89a.) Easparro testified that he
worked for the Department as a sergeant from 2002 through December 31, 2012.
(Id. at 84a-85a.) Easparro explained that, on December 31, 2012, the Department
involuntarily terminated his employment and shut down. (Id. at 85a-86a.) On that
same date, Easparro began working for the Upper Macungie Police Department, also
as a sergeant. (Id. at 84a-85a.) The Department continued to provide police services
to Maxatawny, Topton, Lyons, and, if necessary, Upper Macungie until 11:59 p.m.
on December 31, 2012. (Id. at 117a, 119a.) The Upper Macungie Police Department
went into service at 6 p.m. on December 31, 2012. (Id. at 118a.) As a sergeant for
the Department, Easparro provided police services to Upper Macungie, including
crime investigation, enforcement of traffic laws, and street patrols. (Id. at 85a,
115a-16a.) Easparro continued to provide those same police services to Upper
Macungie as a sergeant for the Upper Macungie Police Department. (Id. at 85a,

                                          5
115a-16a.)       The only things about Easparro’s job that changed on
December 31, 2012, were his uniform patch, his police vehicle, and his salary and
benefits package. (Id. at 85a, 120a.) Easparro explained that at no time did he or
the other Department police officers who Upper Macungie hired ever stop providing
police services to Upper Macungie. (Id. at 116a-17a.) Easparro indicated that Upper
Macungie received a benefit from hiring Department police officers because such
police officers knew the radio system, the mobile data from the cars’ terminals,
Upper Macungie’s roadways, Lehigh County’s court system, and everything else
about the jurisdiction, and, therefore, Upper Macungie did not need to train them.
(Id. at 120a-21a.)
               Easparro testified further that he first learned that his employment with
the Department could be impacted in August 2011, when Upper Macungie gave the
Commission an ultimatum—i.e., Upper Macungie would withdraw from the
Commission if it did not receive more voting power. (Id. at 92a-93a, 148a.)
Easparro explained that, some months later in early 2012, despite the fact that the
Department was already providing Upper Macungie’s police services, Upper
Macungie took steps to create its own police department and hired a chief of police,
two lieutenants, and an office manager. (Id. at 93a-94a, 96a-98a.) Thereafter, at a
March 2012 Commission meeting, Upper Macungie made a motion to withdraw
from the Commission.         (Id. at 95a.)    Immediately thereafter, one of the other
Participants    made     a    motion     to    dissolve   the   Commission    effective
December 31, 2012. (Id.) Easparro explained that, despite representations by Upper
Macungie’s Commissioner, Sam Ashmar (Ashmar), in October 2011, that the
Department police officers did not have to worry about their employment, Ashmar
informed those police officers in attendance at the March 2012 Commission meeting


                                              6
that they could submit their resumes to Upper Macungie for consideration of
employment. (Id. at 95a-96a.)
             Easparro also testified that Upper Macungie ultimately offered
probationary employment to 21 Department police officers. (Id. at 96a, 100a-01a,
117a-18a.) Upper Macungie’s offer of probationary employment identified the
police officers’ salaries and provided an explanation of benefits. (Id. at 100a-02a.)
Easparro explained that there were numerous differences between the Department’s
compensation package, which was determined based on the terms of the CBA, and
Upper Macungie’s compensation package, which Upper Macungie had unilaterally
imposed. (Id. at 104a.) Those differences included: (1) the annual salaries for
patrolmen, detectives, and sergeants were reduced by $3,000 to $4,000; (2) the rank
of corporal was eliminated, causing 3 Department police officers to lose their rank
and suffer further losses in salary; (3) holiday pay was reduced from double-time to
time-and-a-half; (4) personal time was reduced from 40 hours per year to 24 hours
per year; (5) the $450 per year uniform allowance was eliminated, requiring the
police officers to pay out-of-pocket for certain items such as court attire, rain gear,
long johns, heavy weight gloves, and back-up weapons; (6) longevity pay was
eliminated; (7) the amount and computation of court time was changed;
(8) bereavement pay was reduced from a maximum of 40 hours per year to a
maximum of 24 hours per year; and (9) the family medical insurance contribution
increased from $910 per year to 12.5% of each police officer’s salary.
(Id. at 104a-105a, 107a-15a.)
             Based on the differences in the compensation packages—i.e., the
benefits guaranteed under the terms of the CBA and the benefits that, as Easparro
characterized, Upper Macungie had unilaterally imposed—Easparro calculated the


                                          7
damages sustained by each of the 21 Department police officers hired by Upper
Macungie. (Id. at 121a-23a, 131a.) Easparro also calculated the damages sustained
by the 4 Department police officers who were not hired by Upper Macungie.
(Id. at 123a-24a, 131a-34a.) Easparro testified that the damages sustained by the
Association totaled $446,807.42. (Id. at 137a.) Easparro testified further that he
added 6% interest per year for every year since 2013, for a total loss of $564,084.07.
(Id.)
             On cross-examination, Easparro admitted that there was nothing in the
CBA that he could point to that gave Department police officers a guarantee of
employment through December 31, 2013.           (Id. at 140a.)   Easparro explained,
however, that “[t]here was no just cause or any wrongdoing” that would justify the
termination of the police officers; rather, Upper Macungie “stated repeatedly that the
[police] officers were doing a fantastic job.” (Id. at 141a.) Easparro explained
further that he also relied on Ashmar’s statement that the police officers did not have
to worry about their jobs. (Id. at 143a.) Easparro admitted that Upper Macungie did
not ultimately withdraw from the Commission because the Participants unanimously
voted to dissolve the Commission. (Id. at 148a, 168a.) Easparro indicated, however,
that Upper Macungie’s unilateral actions are what caused that vote to occur.
(Id. at 148a-49a.) Easparro described the event as “a hostile takeover of the police
department.” (Id. at 159a.) While Easparro admitted that Participants did not sign
the CBA, he believed that they were all joint employers with the Commission and
parties to the CBA. (Id. at 162a.)
             The Association also presented the testimony of Kathy Rader (Rader),
a member of Upper Macungie’s Board of Supervisors (UMBS), who also served as




                                          8
UMBS’s secretary at the time of the events that gave rise to this litigation.4
(Id. at 169a.)       Rader acknowledged that UMBS’s meeting minutes from
October 6, 2011, provided that “the members of the force need have no concern
about their future. All the members are doing a great job. The main concern that
needs to be worked out is the future of the [Commission].” (Id. at 171a.) Rader
further acknowledged that UMBS’s meeting minutes from November 3, 2011,
provided that “Ashmar emphasized that this is nothing against any of the current
[police] officers who are doing an excellent job.” (Id. at 171a-72a.) Rader also
acknowledged that UMBS’s meeting minutes from March 1, 2012, through
July 30, 2012, confirmed that Upper Macungie decided to create its own police
department, adopted an ordinance establishing such police department, and hired
individuals to staff such police department. (Id. at 172a-74a.)
                Rader admitted that Upper Macungie was not satisfied with its voting
rights in the Commission and that Upper Macungie began to form its own police
department when the other Participants would not agree to amend the Commission’s
Charter to give Upper Macungie a 76% share of the voting rights. (Id. at 180a-81a.)
Rader indicated that Upper Macungie no longer wanted to “get stuck paying”
for 76% of something that the other Participants had agreed to purchase.
(Id. at 190a.) While she acknowledged that Upper Macungie had agreed to each
change to the Commission’s formula regarding Upper Macungie’s responsibility for
the payment of Commission expenses, Rader indicated that Upper Macungie had
reached the point where “enough [was] enough.” (Id. at 190a.) Rader stated further
that, prior to the Commission’s vote to dissolve in April 2012, Upper Macungie had
only started to formulate a plan for its own police department; nothing had been

      4
          Rader testified for the Association as on cross-examination.

                                                 9
officially decided or voted on. (Id. at 183a.) Rader explained that there was still an
opportunity for the Commission to remain intact if the other Participants agreed to
change the voting rights. (Id. at 183a-84a.) Rader nevertheless admitted that, in
April 2012, Upper Macungie had already taken steps to create an ordinance
establishing the police force and to hire a police chief, two lieutenants, and a
manager so that it could get “the police department up and running.”
(Id. at 185a-87a.) Rader indicated further that, before Upper Macungie had a chance
to withdraw from the Commission, the Participants voted to dissolve. (Id. at 192a.)
             Rader further admitted that it was beneficial to Upper Macungie that
the Department’s police officers knew the area, had investigated crime in Upper
Macungie, had enforced Upper Macungie’s traffic laws, knew the members of the
community, and were already working as police officers in Upper Macungie.
(Id. at 175a-76a.)   Rader stated that Upper Macungie received over 70 other
employment applications from individuals outside of the Department but chose to
give preference to Department police officers because they were better qualified for
Upper Macungie’s needs. (Id. at 176a.) By doing so, Rader explained that Upper
Macungie believed that it was helping Department police officers by giving them
preference. (Id.) When asked whether Upper Macungie was doing Department
police officers a favor by cutting their salaries, Rader indicated that Upper Macungie
was in the process of starting a new police department with a brand new
state-of-the-art building, new vehicles, and new uniforms. (Id.)
             In opposition to the Association’s case, Upper Macungie recalled
Rader. Rader testified that, despite Upper Macungie’s requests for a resolution, the
Commission never took any official action with respect to Upper Macungie’s intent
to withdraw. (Id. at 215a.) At the Commission’s April 17, 2012 meeting, one of


                                         10
Maxatawny’s commissioners made a motion to disband the Department and to
dissolve the Commission. (Id. at 216a, 236a, 615a-16a.) All Participants voted
unanimously in favor of the motion. (Id. at 216a, 235a, 616a.) Rader indicated that,
had Upper Macungie withdrawn from the Commission, Upper Macungie would not
have voted on the motion to dissolve or have been involved in the dissolution
process. (Id. at 217a, 219a.)
             Rader testified further that, while Upper Macungie gave Department
police officers the opportunity to apply for a position with the Upper Macungie
Police Department, it did not hire all of them. (Id. at 222a.) Rader also explained
that the police officers hired by Upper Macungie received lower salaries and lesser
benefits than they had from the Commission, because Upper Macungie had many
expenses associated with the creation of its police department and had promised its
residents that it would not raise taxes in connection therewith. (Id. at 223a-25a.)
Rader believed that Upper Macungie was “doing right by” the police officers even
though Upper Macungie was giving them lower salaries, because Upper Macungie
was giving them a job and “[t]hey weren’t standing in the unemployment line.”
(Id. at 226a.)
             On cross-examination, Rader admitted that, at the August 4, 2011
UMBS meeting, Ashmar recommended that Upper Macungie leave the Commission
if the other Participants objected to giving Upper Macungie 76% of the voting power
in the Commission. (Id. at 231a.) At that same meeting, Ashmar also indicated that
a potential solution to the situation was for Upper Macungie to create its own police
force and contract out its police services to the other Participants. (Id. at 231a-32a.)
Ultimately, Ashmar made a motion to work on an exit strategy from the Commission
if the other Participants did not agree to amend the Commission’s voting rights to be


                                          11
consistent with the cost contributions.      (Id. at 232a.)   The motion passed by
a 2-1 vote. (Id.) Rader admitted further that Upper Macungie agreed in writing
“from the very beginning” to receive only a 25% vote in the Commission, and that,
in order to get its voting rights changed, Upper Macungie informed the other
Participants that they either agree to change the voting rights or Upper Macungie
would withdraw from the Commission. (Id. at 238a.)
            Topton presented the testimony of Michael Wagaman (Wagaman), a
member of Topton’s Borough Council. (Id. at 243a.) Wagaman testified that he and
Topton’s mayor represented Topton on the Commission. (Id.) Pursuant to the
Commission’s Charter, Topton, as well as each of the other Participants, had 1 vote,
and Topton was responsible for 6.5% of the Commission’s costs and expenses.
(Id. at 244a.) Wagaman stated that Upper Macungie tried to obtain control of the
Commission by making a proposal that the Commission’s Charter be amended so
that each Participant’s voting rights were proportionate to its share of the
responsibility for the Commission’s costs and expenses.         (Id. at 244a, 248a.)
Wagaman stated further that Upper Macungie indicated that it was going to leave
the Commission if the other Participants would not agree to the change to the
Commission’s Charter. (Id. at 245a, 248a.) Topton, Lyons, and Maxatawny never
agreed to change the voting rights under the Commission’s Charter.
(Id. at 244a-45a.) Wagaman explained that Topton would not agree to change the
voting rights because it would have lost its and “the community’s voice” in the
Commission and the Department. (Id. at 245a.) Wagaman believed that Lyons and
Maxatawny were opposed to the change in voting rights for a similar reason. (Id.)
            Wagaman testified further that no Topton officials initiated a discussion
about the dissolution of the Commission or made a motion to dissolve the


                                        12
Commission. (Id. at 245a-46a.) Wagaman explained, however, that without Upper
Macungie’s participation in the Commission, Topton could not afford to have its
own police department; Topton, Maxatawny, and Lyons simply did not have a need
for 25 police officers. (Id. at 248a.) Wagaman explained further that Topton agreed
to the dissolution of the Commission rather than just letting Upper Macungie
withdraw, because Topton could not afford to fund the Department without Upper
Macungie’s contribution. (Id. at 250a-51a.) Wagaman indicated that Topton would
have continued with the Commission had Upper Macungie not sought to amend the
voting rights or withdraw from the Commission. (Id. at 249a.) Wagaman also
testified that as of December 31, 2012, Topton, Maxatawny, and Lyons no longer
had a police department but that Upper Macungie did. (Id.)
             In opposition to the Association’s case, Maxatawny presented the
testimony of Jill Nagy (Nagy), Maxatawny’s solicitor.         (Id. at 252a.)   Nagy
explained that she became involved with the Commission in 2011, when Upper
Macungie indicated that it would withdraw from the Commission if the other
Participants would not agree to change the voting rights. (Id. at 253a-54a.) At that
time, Nagy began to attend Commission meetings.           (Id. at 254a-55a.)   Nagy
indicated that Ashmar attended those meetings and made clear that, if Upper
Macungie did not receive 76% of the voting rights, Upper Macungie would leave
the Commission and take not only its 76% contribution but also all of the
Commission’s police officers and would “stick [all of the other Participant’s] with a
bill.” (Id. at 255a, 275a-76a.) Nagy indicated further that Maxatawny, Topton, and
Lyons attempted to express their concerns that they could not continue with the
Commission if Upper Macungie withdrew and suggested that they at least continue
until the end of the CBA’s term. (Id. at 256a-57a.) Nagy explained, however, that


                                         13
Ashmar did not keep an open mind and that “[t]he meetings were borderline being
abusive to the other [Participants].” (Id. at 257a.)
             Nagy also testified that, even though Maxatawny made the motion to
dissolve the Commission, Maxatawny considers what happened with the
Commission to be a hostile takeover/withdrawal by Upper Macungie, not a
dissolution of the Commission. (Id. at 261a, 267a-69a, 272a, 274a, 276a-77a.) Nagy
explained that, at the time that the Participants voted to dissolve the Commission,
Upper Macungie made clear that it was leaving the Commission and even had
everything already set up for its police department. (Id. at 261a.) Nagy agreed that
Upper Macungie sought control of the Commission, and, when Maxatawny, Topton,
and Lyons did not agree to give Upper Macungie control, Upper Macungie took
control. (Id. at 277a-80a.) She stated that Maxatawny did not have the economic
resources to continue with the Commission without Upper Macungie or to pursue
legal action against Upper Macungie to prevent its withdrawal from the
Commission. (Id. at 261a-62a.) She explained further that Maxatawny, Topton, and
Lyons could not have simply let Upper Macungie withdraw and had no other option
but to dissolve the Commission because they simply could not “put themselves in
jeopardy like that.” (Id. at 270a.) Nagy also testified that Maxatawny did not
participate in the dissolution process because it did not agree with how the
winding-up process was being handled; Maxatawny believed that Upper Macungie,
as the withdrawing party, was solely responsible for all of the Commission’s debts.
(Id. at 271a-74a.)
             Nagy indicated that Maxatawny also attributes this litigation and all of
the Association’s damages to Upper Macungie’s withdrawal from the Commission.
(Id. at 262a.) Nagy stated that Maxatawny incurred legal expenses in connection


                                          14
with Upper Macungie’s withdrawal and put Upper Macungie on notice that it would
be seeking recovery of those fees. (Id. at 262a-66a.) Nagy explained that, as soon
as Upper Macungie indicated that it was withdrawing from the Commission, she
kept separate billing records for Commission-related matters because, pursuant to
the Commission’s Charter and an amendment to the Commission’s Charter
(Amendment to the Commission’s Charter), Upper Macungie, as the withdrawing
party, was responsible for Maxatawny’s legal fees. (Id. at 254a, 263a.)
             In rebuttal, Upper Macungie presented the testimony of Andrew
Schantz (Schantz), Upper Macungie’s solicitor. (Id. at 285a.) Schantz testified that,
from his perspective, Upper Macungie made a motion to withdraw from the
Commission, but the Commission never acted on it;5 rather, the Participants voted
unanimously in favor of Maxatawny’s motion to dissolve the Commission.
(Id. at 286a.) Schantz explained that, following the unanimous vote to dissolve the
Commission, there was a winding-down process.              (Id. at 287a-88a.)     Schantz
explained further that the process operated as a dissolution and that, if Upper
Macungie had withdrawn from the Commission, it would not have participated in
such process. (Id. at 288a.)
             By order dated August 31, 2017, the trial court entered a verdict in favor
of the Association and against Upper Macungie in the amount of $564,084.07 on the
Association’s breach of contract claim. The trial court also ruled on Maxatawny’s
cross-claim against Upper Macungie for damages, ordering Upper Macungie to
reimburse Topton and Maxatawny for the attorneys’ fees they incurred in connection

      5
          While both Easparro and Schantz refer to a “motion” having been made by Upper
Macungie to withdraw from the Commission, it appears from our review of the record that, at
some time prior to the Commission’s November 21, 2011 meeting, Upper Macungie notified the
Commission of its intent to withdraw from the Commission effective December 31, 2012.
(R.R. at 584a-86a.)

                                            15
with the dissolution of the Commission. In so doing, the trial court concluded that
Upper Macungie breached the terms of the CBA and was liable for damages under
the Commission’s Charter and the Amendment to the Commission’s Charter. The
trial court reasoned:
                    The term of the CBA was [3] years and covered the
             calendar years of 2011, 2012, and 2013. Thus, the police
             officers had a duty to work for the Commission according
             to the terms of the CBA and the Commission had a duty to
             employ those officers at the rate and with the benefits
             outlined in the CBA through 2013.
                    [Upper Macungie] argues that the law allows a
             business under a collective bargaining agreement to cease
             operations. That is a correct statement of the law in
             general, but it is inapplicable to the case sub judice. As
             [Nagy] testified, this dissolution was actually a “hostile
             takeover” accomplished by an inimical giant. [Upper
             Macungie] had no problems with the work of the police
             force. In fact, it even conveyed this message to the
             officers. It could afford its share of the expenditures.
             Since it joined the Commission in 2000, it knew that it
             would have to pay the largest share of the expenses due to
             its greater size in population and the costs associated with
             the increased coverage.           All [4] municipalities
             continuously agreed that all the municipalities share the
             expenses according to their size. This was fair since there
             was no condition that limited the police to only [25%] of
             the time being spent in one municipality. In other words,
             the actual Regional Police activity in [Upper Macungie]
             was logically more commensurate to the [76%] that
             [Upper Macungie] contributed to the cost of the operation
             than to the [25%] of voting power that each municipality
             possessed.
                    The [Upper Macungie] supervisors no longer liked
             the terms of the Charter regarding voting rights. They
             wanted to unilaterally change the voting procedure to
             allow them to make all the decisions of the Commission.
             In essence, [Upper Macungie] would be able to
             commandeer the [Department] and run it without any
             interference from their equal partners.
                                         16
                Moreover, [Upper Macungie] knew that the
         other [3] municipalities could not meet the greater
         expenses caused by its participation in the Commission;
         nor should they have been forced to undertake such an
         onerous burden of overstaffing [3] townships
         with [25] police officers. [Upper Macungie] had the other
         municipalities over the proverbial barrel. It ultimately
         forced the Commission to “dissolve” prematurely because
         the other members alone could not afford to meet the terms
         of the CBA. All [4] municipalities had contracted
         a [3-]year operations agreement. In year [2], [Upper
         Macungie] unilaterally refused to comply with the term of
         the CBA and then forced the other municipalities to breach
         the CBA. The officers would not have suffered any
         damages      if    [Upper     Macungie]     had     waited
         another [12] months to withdraw at the end of calendar
         year 2013, the end of the CBA.
                For these reasons, the disbandment of the
         [Department] was not due to a voluntary dissolution but to
         the withdrawal of [Upper Macungie], the biggest entity. It
         was also not a dissolution of operations because [Upper
         Macungie] hired the same police officers who had covered
         its municipality as officers in the [Department]. To
         achieve its own police department, [Upper Macungie]
         destroyed the Commission and, by doing so, breached the
         terms of the CBA. It hired experienced officers who knew
         the patrol territory, yet paid them a smaller salary with
         fewer benefits. [Upper Macungie’s] police department is,
         in essence, that of the Commission; only the name of the
         department changed. . . .
                ....
                Pursuant to [Paragraph 8 of the Amendment to the
         Commission’s Charter6 and Paragraph 11 of the

6
    Paragraph 8 of the Amendment to the Commission’s Charter provides, in relevant part:
If any Participant, whether an original Participant or a Participant subsequently
added to the [Commission], voluntarily withdraws from its membership in the
[Commission] at any time during the operation of [the Charter], said withdrawing
Participant, except as expressly set forth herein, shall forfeit all assessments and
contributions up to and including the time of withdrawal, and shall in addition


                                        17
                  Commission’s Charter7], this [trial] court finds that [Upper
                  Macungie] is solely responsible for the damages incurred
                  by the police officers due to its voluntary withdrawal from
                  the Commission.         It disbanded the [Department]
                  prematurely and it owes damages for the monies due under
                  the final year of the CBA. [Upper Macungie] is also
                  responsible for the legal fees of [Topton and Maxatawny]
                  that were incurred by them to dissolve the Commission
                  because they were solely due to [Upper Macungie’s]
                  withdrawal.
(Trial Ct. Op. at 7-9.) Upper Macungie filed a motion for post-trial relief, which the
trial court denied by order dated September 26, 2017. This appeal followed.
                                 II. ISSUES ON APPEAL
                  On appeal,8 Upper Macungie raises the following issues: (1) whether
the trial court committed an error of law and abused its discretion by awarding


       forfeit any interest on said sum and shall be further responsible for payment of all
       increased Workmen’s [sic] Compensation premiums and other insurance premiums
       as well as all other benefits which the [Commission] would be obligated to pay to
       or on behalf of withdrawing Participant’s employees calendar year in which the
       withdrawal or termination takes place.
(R.R. at 318a.)
       7
           Paragraph 11 of the Commission’s Charter provides:
               A Participant may withdraw from participating in the [Commission]
       provided that written notice of intent to withdraw is sent by certified mail, return
       receipt requested, to the [Commission] at least one year in advance of November 1
       of the year in which such withdrawal is to be effective. The immediate costs of such
       withdrawal and any continuing obligations and liabilities necessarily assumed by
       the remaining Participants of the [Commission] totally or partially attributable to
       the withdrawing Participant’s participation, shall be satisfied by the withdrawing
       Participant upon the effective date of withdrawal. The withdrawal of less than
       two-thirds of the Participants at any given effective date shall not result in a
       termination or dissolution of the [Commission].
(R.R. at 310a.)
       8
          “Our standard of review of a non-jury trial is to determine whether the findings of the
trial court are supported by competent evidence, and whether an error of law was committed.”


                                               18
damages to the Association; (2) whether, assuming for purposes of argument that an
award of damages to the Association is proper, the trial court committed an error of
law and abused its discretion by awarding damages to the Association in the amount
of $564,084.07; (3) whether the trial court committed an error of law and abused its
discretion by holding Upper Macungie solely responsible for the damages incurred
by the parties; (4) whether the trial court committed an error of law and abused its
discretion by awarding attorneys’ fees to Topton and Maxatawny; and (5) whether
the trial court committed an error of law and abused its discretion by entering
judgment against Upper Macungie because the Commission was a necessary party
to this action.9
                                      III. DISCUSSION
           A. Whether the Association Should Have Been Awarded Damages
               Upper Macungie argues that the trial court committed an error of law
and abused its discretion by awarding damages to the Association because the CBA
does not: (1) guarantee continued employment to the police officers for the term of
the CBA; or (2) prohibit the dissolution of the Commission. In response, the
Association appears to argue that Paragraph 1 of the CBA, entitled “Duration of
Agreement,” clearly establishes that the CBA was a 3-year contract, and, therefore,

Swift v. Dep’t of Transp., 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007), appeal denied,
950 A.2d 270 (Pa. 2008).
       9
           In the “Statement of Questions Involved” section of its brief, Upper Macungie suggests
that the trial court also committed an error of law and abused its discretion by entering a verdict in
favor of the Association because the impact arbitration and Award addressed all of the issues that
were before the trial court. Upper Macungie, however, has failed to develop any argument on this
issue, and, therefore, we will not address it any further in this opinion. See Pa. R.A.P. 2119(a);
Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998). We
note, however, that this Court previously addressed this issue in Berks-Lehigh I, when we
concluded that the Award was not final and binding with respect to the Association’s breach of
contract claim and that the trial court had jurisdiction to consider such claim.

                                                 19
the CBA guaranteed continued employment to the police officers through the
CBA’s 3-year term. In its reply brief, Upper Macungie argues that “the Association
has not and cannot provide a legally supported argument or evidence that the CBA
guaranteed continued [employment] or that the CBA was breached by [Upper
Macungie].” More specifically, Upper Macungie argues that “the CBA’s duration
clause applied only so long as the Commission continued to employ the officers[,]”
and   “the    Commission       stopped    providing     police   services    effective
December 31, 2012.” (Upper Macungie’s Reply Br. at 2-3.)
             A collective bargaining agreement is not a contract of employment;
rather, a collective bargaining agreement establishes the employment terms between
an employer and its covered employees. Amalgamated Ass’n of Street, Elec. Ry. and
Motor Coach Emps. of Am., Div. 85 v. Pittsburgh Rys. Co., 142 A.2d 734, 736 (Pa.),
cert. denied, 358 U.S. 882 (1958).       As the Pennsylvania Supreme Court has
explained:
             “Collective bargaining between employer and the
             representatives of a unit, usually a union, results in an
             accord as to terms which will govern hiring and work and
             pay in that unit. The result is not, however, a contract of
             employment except in rare cases; no one has a job by
             reason if [sic] it and no obligation to any individual
             ordinarily comes into existence from it alone. The
             negotiations between union and management result in
             what has often been called a trade agreement rather than a
             contract of employment.”
Id. (quoting J.I. Case Co. v. Nat’l Labor Relations Bd., 321 U.S. 332, 334-35
(1944)).
             In this case, the Association has failed to cite any provision in the CBA,
the Commission’s Charter, or the Amendment to the Commission’s Charter that
establishes a contract of employment or a guarantee of continued employment to the

                                         20
Department’s police officers for the term of the CBA. The CBA’s “Duration of
Agreement” provision merely establishes the 3-year time period during which the
terms and conditions set forth in the CBA will apply. It does not establish a 3-year
employment term or a guarantee of continued employment to the Department’s
police officers through December 31, 2013.                 Thus, the disbandment of the
Department and the resulting termination of the police officers’ employment with
the Department on December 31, 2012, does not constitute a breach of the CBA,
and, therefore, the Association was not entitled to an award of damages. For these
reasons, we conclude that the trial court committed an error of law and abused its
discretion by awarding damages to the Association.10
                        B. Whether Topton and Maxatawny
                     Should Have Been Awarded Attorneys’ Fees
               Upper Macungie argues that the trial court committed an error of law
and abused its discretion by awarding attorneys’ fees to Topton and Maxatawny
because “neither the [Commission’s] Charter nor the Dissolution Agreement
provided for the payment of attorneys’ fees, and [Maxatawny’s] cross-claim
pleadings never included any allegation of or demand for attorneys’ fees.” (Upper
Macungie’s Br. at 34.) In response, Topton and Maxatawny argue that it was within
the sound discretion of the trial court to award them the attorneys’ fees that they
incurred in connection with the dissolution of the Commission, because, pursuant to
the terms of the Amendment to the Commission’s Charter, Upper Macungie, as the
withdrawing party, was responsible for the costs of such withdrawal and any
continuing obligations and liabilities assumed by the remaining Participants.

       10
           Because we have concluded that the trial court committed an error of law and abused its
discretion by awarding damages to the Association, we need not consider whether the amount of
damages awarded to the Association by the trial court was improper or whether Upper Macungie
is solely responsible for the damages awarded to the Association.

                                               21
Maxatawny also argues that its cross-claim “asserted that [Upper Macungie] should
be responsible to [Maxatawny] for damages alleged in the instant action, based upon
the language from the Commission’s Charter.” (Maxatawny’s Br. at 5.) Maxatawny
argues further that the trial court exercised sound discretion in concluding that
“attorney[s’] fees were part of the damages reasonably contemplated by or available
under the [Commission’s] Charter.” (Maxatawny’s Br. at 6.)
            Here, the trial court concluded that Upper Macungie was responsible
for Maxatawny’s and Topton’s attorneys’ fees because such attorneys’ fees were
incurred solely as a result of Upper Macungie’s withdrawal from the Commission.
The undisputed evidence at trial, however, establishes that the Commission
dissolved and the Department disbanded upon the motion of Maxatawny, with a
unanimous affirmative vote by the Participants. Pennsylvania consistently follows
the American Rule, whereby “there can be no recovery of attorneys’ fees from an
adverse party, absent an express statutory authorization, a clear agreement by the
parties, or some other established exception.” Herd Chiropractic Clinic, P.C. v.
State Farm Mut. Auto. Ins. Co., 64 A.3d 1058, 1066 (Pa. 2013). Maxatawny and
Topton have not cited, nor can we find, any provision in the Charter or the
Amendment to the Charter that would entitle Maxatawny and Topton to recover
from Upper Macungie the attorneys’ fees that they incurred in connection with the
dissolution of the Commission.
            While we do not question the trial court’s finding that the dissolution
was precipitated by Upper Macungie’s notice of its intent to withdraw unless the
Commission changed its Charter, the record is clear that the withdrawal never
occurred. Moreover, no one disputes that the Commission’s Charter expressly
allowed any participant to withdraw voluntarily from the Commission for any


                                        22
reason. (R.R. at 318a.) The trial court’s award of attorneys’ fees essentially
penalizes Upper Macungie for exercising that right of withdrawal. While there is no
question that Upper Macungie used its position as the financially dominant member
of the Commission to its advantage, there is nothing in the record that would support
a conclusion that it acted inconsistent with the express terms of the Commission’s
Charter.11
               For these reasons, we conclude that the trial court committed an error
of law and abused its discretion by awarding attorneys’ fees to Topton and
Maxatawny on Maxatawny’s cross-claim.12
                                    IV. CONCLUSION
               For all of the above-stated reasons, we reverse the trial court’s order.13




                                                P. KEVIN BROBSON, Judge




       11
          During oral argument, counsel for Maxatawny suggested that Maxatawny’s cross-claim
is based on a cause of action against Upper Macungie for violation of an implied duty of good faith
and fair dealing. A review of the record and the briefs filed with this Court reveal that the
cross-claim does not contain such a cause of action, and neither the parties nor the trial court
analyze whether such an implied duty existed among the Participants in the Commission and, if
so, whether Upper Macungie breached that implied duty through its conduct leading to the
dissolution of the Commission.
       12
          We also note that, while the trial court suggests that the other municipalities joined in
Maxatawny’s cross-claim (see Trial Ct. Op. at 6), we have found no evidence in the record to
indicate that Topton either joined Maxatawny’s cross-claim or filed its own cross-claim against
Upper Macungie.
       13
         Given our disposition above, we need not consider Upper Macungie’s remaining issue
on appeal—i.e., whether the Commission was a necessary party to this action.

                                                23
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Berks-Lehigh Regional Police       :
Officers Association               :
                                   :
            v.                     :     No. 1407 C.D. 2017
                                   :
Upper Macungie Township, Topton    :
Borough, Lyons Borough, and        :
Maxatawny Township                 :
                                   :
                                   :
Appeal of: Upper Macungie Township :



                                ORDER


           AND NOW, this 17th day of October, 2018, the order of the Court of
Common Pleas of Berks County is hereby REVERSED.




                                     P. KEVIN BROBSON, Judge
