           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Somerset Borough,                        :
                 Appellant               :
                                         :
                   v.                    :
                                         :   No. 104 C.D. 2016
Teamsters Local Union No. 205            :   Argued: November 15, 2016


BEFORE:     HONORABLE ANNE E. COVEY, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: December 20, 2016

            Somerset Borough (Borough) appeals from the Somerset County
Common Pleas Court’s (trial court) December 22, 2015 order denying the Borough’s
Petition to Vacate Labor Arbitration Award (Petition). The Borough presents three
issues for this Court’s review: (1) whether the trial court erred by determining that a
part-time employee has a legitimate interest in continued employment; (2) whether
the trial court erred by concluding that Borough Police Officer Eric Grus (Officer
Grus) was discharged; and, (3) whether the trial court abused its discretion by
denying the Petition. After review, we affirm.
            On February 26, 2007, the Borough hired Officer Grus as a regular part-
time police officer. Regular part-time police officers are normally scheduled to work
thirty-two or more hours a week. In February, March and April of 2014, Officer Grus
was scheduled to work 40 hours per week.         However, on March 20, 2014, the
Borough Mayor removed Officer Grus from the then-current schedule, and stopped
scheduling him for any police shifts thereafter as a result of an alleged off-duty
incident. On March 21, 2014, Borough Police Chief R.G. Cox sent Officer Grus a
letter informing him that an administrative decision had been made that his services
or availability as a part-time officer were no longer required, and that the duration of
said administrative action was indefinite.
               On March 21, 2014, as Officer Grus’ bargaining unit representative
under the Collective Bargaining Agreement (CBA) between the Borough and
Teamsters Local Union No. 205 (Union), the Union filed a Grievance. By April 1,
2014 letter, the Borough responded that the Grievance was rejected and denied. By
April 4, 2014 letter, the Union requested a meeting as the next step in the grievance
procedure. By April 8, 2014 letter, the Borough responded again that the Grievance
was rejected and denied. By April 11, 2014 letter, the Union rejoined that if the
Borough was denying its meeting request, the Union would proceed to binding
arbitration.    By April 22, 2014 letter, the Union notified the Borough it was
proceeding to arbitration.
               On July 1, 2015, Arbitrator David Breen, Esquire (Arbitrator) conducted
a hearing on the Union’s Grievance and on September 8, 2015 awarded Officer Grus
immediate reinstatement and directed that he be made whole for any loss of earnings
and benefits (Award). The Borough appealed to the trial court which held a hearing
on December 21, 2015. On December 22, 2015, the trial court denied the Borough’s
appeal. The Borough appealed to this Court.
               Initially, the trial court applied, and both parties argued, the Uniform
Arbitration Act’s (UAA)1 essence test as the appropriate scope of review of the
Arbitrator’s Award. However, “the proper scope of review is narrow certiorari” for
an “Act 111[2] grievance arbitration.”3 Pa. State Police v. Pa. State Troopers’ Ass’n,


       1
         42 Pa.C.S. §§ 7301–7320.
       2
         Act of June 24, 1968, P.L. 237, No. 111, as amended, 43 P.S. §§ 217.1-217.10.
       3
         “[T]he UAA essence test is inconsistent with the narrow certiorari scope of review. Thus,
as the essence test is inconsistent with the appropriate scope of review, the UAA’s provisions
                                                2
656 A.2d 83, 89 (Pa. 1995) (emphasis added). “Under narrow certiorari review, a
court considers questions relating to four issues: (1) jurisdiction; (2) the regularity of
the proceedings; (3) excess in exercise of powers; and (4) deprivations of
constitutional rights.” City of Phila. v. Int’l Ass’n of Firefighters, Local 22, 999 A.2d
555, 563 (Pa. 2010).
              Consequently, the dispute here turns on whether the Arbitrator exceeded
his authority or jurisdiction when he granted the Union’s grievance, reinstated Officer
Grus to regular, part-time employment, and directed the Borough to make Officer
Grus whole for any loss of earnings and benefits.

              Under the narrow certiorari standard, an arbitrator acts in
              excess of his or her authority when the arbitrator
              mandates that an illegal act be carried out. Appeal of
              Upper Providence Police [Del.] [Cnty.], . . . 526 A.2d 315
              ([Pa.] 1987); see also City of Washington v. Police [Dep’t]
              of Washington, . . . 259 A.2d 437 ([Pa.] 1969). In addition,
              this Court has held that arbitrators exceed their
              jurisdiction when they address questions not submitted
              to them by the parties. Marple [Twp.] v. [Del.] [Cnty.]
              F.O.P. Lodge 27, 660 A.2d 211 (Pa. Cmwlth. 1995).

City of Phila. v. Fraternal Order of Police, Lodge No. 5, 717 A.2d 609, 610-11 (Pa.
Cmwlth. 1998) (emphasis added).
              Further,
              [w]hile the scope of our review has been repeatedly set
              forth, the standard by which we review an arbitrator’s
              determination of arbitrability, i.e. the extent of his
              jurisdiction and powers, has not been explicitly delineated.
              Focusing upon the manner in which our [C]ourt and our
              Supreme Court have analyzed such claims, however, leads
              to the inescapable conclusion that a dual standard applies.
              Where resolution of the issue turns on a pure question of
              law, or the application of law to undisputed facts, our
              review is plenary. However, where it depends upon fact-

dictate that it cannot apply.” Pa. State Police v. Pa. State Troopers’ Ass’n, 656 A.2d 83, 89 n.17
(Pa. 1995) (citation omitted).
                                                3
               finding or upon interpretation of the collective
               bargaining agreement, we apply the extreme standard of
               deference applicable to Act 111 awards; that is, we are
               bound by the arbitrator’s determination of these
               matters even though we may find them to be incorrect.
               See City of [Phila. v. Fraternal Order of Police, Lodge No.
               5, 768 A.2d 291, 294 (Pa. 2001)] [applying plenary review
               to the legal question of jurisdiction—whether an issue was
               encompassed in the demand for arbitration, or could
               lawfully be raised on the first day of the arbitration
               hearing—but deferring to the arbitrator’s determination that
               she did not exceed her power based upon her interpretation
               of the CBA]; compare City of Pittsburgh v. Fraternal Order
               of Police Fort Pitt Lodge No. 1, 764 A.2d 101, 103 (Pa.
               Cmwlth. 2000) . . . [deferential standard] with Borough of
               Morrisville v. Morrisville Borough Police Benevolent Ass’n,
               756 A.2d 709 (Pa. Cmwlth. 2000) . . . [independent
               determination that allocation of pension interest is a
               managerial prerogative as a matter of law].

Pa. State Police v. Pa. State Troopers Ass’n, 840 A.2d 1059, 1062-63 (Pa. Cmwlth.
2004) (emphasis added).
               The Arbitrator’s opinion herein makes it clear that, “the [A]rbitrator’s
determination of arbitrability was based upon both contract interpretation and factual
findings, to which this [C]ourt is bound to defer.” Id. Since the arbitrability issue
included whether a part-time officer has a legitimate interest in continued
employment and whether Officer Grus was discharged, we must defer to the
Arbitrator’s findings. Because we must defer to these findings, we similarly must
conclude that “the grievance is arbitable[,]” Officer Grus “was a regular part-time
employee with a continued expectation of employment” and “the Borough discharged
[Officer Grus]” in contravention of the parties’ CBA. Arbitrator’s Op. at 13-14.
Accordingly, the [A]rbitrator did not exceed his authority in arbitrating the
grievance.4
       4
         “Although the trial court did not rule on this ground, this Court may affirm a trial court’s
order on grounds other than those on which the trial court based its decision.” Twp. of Salem v.
Miller Penn Dev., LLC, 142 A.3d 912, 917 n.4 (Pa. Cmwlth. 2016).
                                                 4
For all of the above reasons, the trial court’s order is affirmed.


                           ___________________________
                           ANNE E. COVEY, Judge




                               5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Somerset Borough,                     :
                 Appellant            :
                                      :
                 v.                   :
                                      :   No. 104 C.D. 2016
Teamsters Local Union No. 205         :



                                  ORDER


           AND NOW, this 20th day of December, 2016, the Somerset County
Common Pleas Court’s December 22, 2015 order is affirmed.


                                   ___________________________
                                   ANNE E. COVEY, Judge
