                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Emmaus,                             :
                Petitioner                     :
                                               :   No. 1847 C.D. 2014
                         v.                    :
                                               :   Argued: June 8, 2016
Pennsylvania Labor Relations                   :
Board,                                         :
                 Respondent                    :



BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE P. KEVIN BROBSON, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge


OPINION BY
JUDGE McCULLOUGH                                                   FILED: March 13, 2017


                 The Borough of Emmaus (Borough) petitions for review from the
September 16, 2014 final order of the Pennsylvania Labor Relations Board (Board),
which dismissed the Borough’s exceptions to the hearing examiner’s June 3, 2014
order       certifying    the   Pennsylvania   Professional     Fire    Fighters    Association
(Association) as the exclusive representative of all full-time and regular part-time
firefighters of the Borough’s Fire Department (Fire Department) under the act
commonly referred to as Act 111.1

        1
          Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§217.1-217.10. Act 111 applies only
to police and fire personnel. Section 1 of Act 111, 43 P.S. §217.1.
               In this case, the Fire Department was previously considered – or at least
believed – to be a “volunteer” fire department that operated independent of the
Borough.       However, the Borough’s Council passed an ordinance that paid its
firefighters an hourly wage and structured the Fire Department in such a manner that
the firefighters were placed under the authoritative and direct control of the Borough
Council and/or its supervisory agents. As a result of these measures, the firefighters
instituted proceedings under Act 111, and the Board concluded that an employer-
employee relationship existed between the Fire Department and the Borough;
therefore, the firefighters were authorized by statute to unionize, and, with the
Association’s representation, engage in collective bargaining with the Borough.
Discerning neither error nor abuse of discretion in the Board’s decision, we will
affirm.


                                          Background
               On October 24, 2013, the Association filed a petition seeking to
represent a unit of full-time and regular part-time firefighters employed by the
Borough. At a hearing before a Board hearing examiner on January 9, 2014, the
parties stipulated that the only issue to be decided “is whether the petitioned-for fire
fighters are employed by the Borough.” (Board’s Findings of Fact (F.F.) at No. 3.) 2
The hearing examiner made the following findings of fact.
               The Borough is a public employer and a political subdivision pursuant to
Act 111 and the Pennsylvania Labor Relations Act (PLRA).3 The Fire Department is

      2
         The Board adopted and incorporated the hearing examiner’s Findings of Fact Numbers 1
through 30. (See Board’s Order, 5/1/14; Board’s Final Order, 9/16/14.)

      3
          Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§211.1-211.13.



                                                 2
a non-profit corporation incorporated by the Borough. The Borough owns the Fire
Department building, most of the Fire Department equipment, and the firefighters’
training facility. (F.F. at Nos. 1, 5, 8.)
              In 1999, the Borough adopted Ordinance No. 887 (Ordinance) “to
effectuate the ‘Establishment of the Fire Department . . . comprised of vehicles,
equipment, and volunteers from the pre-existing Fire Department of the Borough . . .
and any additional equipment or manpower which may be specified by Borough
Council.’” (F.F. at Nos. 5-6 (quoting Ordinance).) The Ordinance also established
various officer positions, including Fire Chief, Assistant Fire Chief, Deputy Fire
Chief, Captain, Lieutenant, and Engineer. The Ordinance states that the Borough
Council shall appoint those officers, who “‘shall serve as at-will employees and
appointees.’” (F.F. at 6 (quoting Ordinance).) The Borough retained the right to
adopt rules, regulations, and standard operating procedures, which are binding on the
Fire Department and its firefighters; however, the Fire Chief has the right to issue
standing orders and a Standard Operating Procedure Manual to direct firefighting
activities. The Ordinance also “designates the Borough Council as the entity which
sets salaries and compensation for [the] firefighters, after consideration of any
recommendation which the Fire Chief may provide.” (F.F. at No. 7.)
              The Fire Department does not pay for its operations, equipment, or
personnel because the Borough directly pays for those items from its Fire Department
budget. The Fire Department obtains fuel for fire trucks and equipment directly from
the Borough garage at no cost. The Borough’s budget contained “38 line items for
the Fire Department, totaling $513,016 in actual expenditures in 2012 and a 2013
budgeted amount of $448,158.” (F.F. at No. 11.) Pursuant to Borough regulations,
no one at the Fire Department, including the Fire Chief, is authorized to make



                                             3
expenditures greater than $500.00 without first obtaining the Borough’s permission.
(F.F. at Nos. 10-11.)
             The Fire Department is managed by two Borough employees, the Fire
Chief and the Borough Secretary. The Borough Secretary “runs the day-to-day
operations, including the scheduling of fire fighters on a monthly calendar” and also
exercises discretion in assigning firefighters to specific shifts. (F.F. at 12.) The
firefighters perform various activities during their assigned shifts, such as responding
to fire calls, maintaining the fire station, and training. When the firefighters arrive at
work, they are required to punch in and out with a time-card system so that the
Borough Secretary may track their hours. When a firefighter is unable to work a
scheduled shift, he or she must find a replacement. During their scheduled shifts, the
firefighters are not permitted to leave the fire station to conduct personal errands.
Based on the firefighters’ timesheets, the Borough issues monthly paychecks directly
to the firefighters and withholds taxes from their paychecks. The firefighters also
receive W-2 tax forms from the Borough at the end of each year. The firefighters are
paid an hourly rate and may receive overtime if it is authorized by the Fire Chief or
Assistant Fire Chief. If overtime is not authorized, a firefighter must punch out and
continue to work his or her shift as a volunteer without pay. In 2012, the wage rate
for the firefighters ranged from $10.00 per hour to $15.00 per hour. The Borough
Council “has the power to set and approve the hourly rates.” (F.F. at Nos. 13-15, 18.)
             A person interested in becoming a firefighter for the Fire Department
must complete an application, which is reviewed by the Fire Chief but “then must be
approved by the Borough.” (F.F. at No. 20.) “The Borough Council regularly
reviews the [Fire] Chief’s recommendations for the hiring of fire fighters.” (Id.)
Although the Fire Chief is responsible for disciplining firefighters, the Borough has



                                            4
the final say over disciplinary matters. A firefighter who is unhappy with the Fire
Chief’s disciplinary decision “may appeal the decision to the Borough Manager.”
(F.F. at No. 21.) In one instance, the Fire Chief terminated a firefighter; however, the
termination letter directed the firefighter to the Borough Manager regarding questions
about the discipline, and the Borough Manager attended the firefighter’s termination
meeting. The Borough Manager has the power to discipline members of the Fire
Department for violating the Borough policies. (F.F. at No. 22.)
             In 2011, all firefighters received the Borough’s Personnel Policy, which
“is a compilation of Borough policies ranging from hiring to drug and alcohol to
personnel files, signed by the Borough Council President.” (F.F. at No. 23.) The
Personnel Policy also states that it “does not alter the ‘at-will presumption of
employment.’” (Id. (quoting Personnel Policy).) All firefighters were required to
sign a form acknowledging receipt of the policy and return it to the Borough
Manager. The firefighters also received the Borough’s Non-Union Employees Light-
Duty Policy and were required to provide a form acknowledging its receipt to the
Borough Manager. (F.F. at No. 24.) In December 2013, the Borough issued the
firefighters a memorandum with their paychecks regarding the local services tax; the
memorandum stated that it was directed to all “[Part-Time] Employees.” (F.F. at No.
25.)
             The Fire Department’s Standard Operating Guidelines (Guidelines)
“defer to and rely on the personnel policies and regulations set forth by the Borough.”
(F.F. at No. 26.)    For example, the Guidelines allow the Borough to perform
background checks on all firefighters.     The officers of the Fire Department are
required to submit annual budget requests to the Fire Chief and the Borough
Secretary, who then provide the requests to the Borough Council. Although the



                                           5
Borough Council tries to give deference to the requests, it often rejects them due to
“deficits and other safety concerns.” (F.F. at Nos. 26, 28.)
              The Fire Chief “is in charge at a fire and gives directives to the
individual fire fighters in their daily operations.” (F.F. at No. 30.) The Fire Chief has
disciplined firefighters for various offenses, including insubordination. The Fire
Chief terminated a firefighter in February 2011, without obtaining approval from
anyone, and also suspended a firefighter in October 2011. (F.F. at No. 29.)
              By order dated April 11, 2014, the hearing examiner determined that the
firefighters are employees of the Borough, rather than volunteers, because they
receive an hourly wage in exchange for their services.                Because the Borough
exercises control over the firefighters and has the ultimate say over disciplinary and
hiring matters, the hearing examiner also determined that an employment relationship
exists between the Borough and the firefighters under Act 111. Thereafter, on June 3,
2014, the hearing examiner issued an order certifying the Association as the exclusive
representative of all full-time and regular part-time firefighters of the Fire
Department.
              On June 23, 2014, the Borough filed exceptions to the June 3, 2014
order, arguing that some of the hearing examiner’s factual findings were not
supported by substantial evidence and the hearing examiner erred in concluding that
the firefighters are the Borough’s employees. The Board agreed with the hearing
examiner that the firefighters are Borough employees under Act 111 and, therefore,
dismissed the Borough’s exceptions. The Borough now appeals from that decision.4

       4
         Our review of the Board’s order is limited to determining whether constitutional rights
were violated, whether the Board committed an error of law, or whether the Board’s findings are
supported by substantial evidence. Wilkes-Barre Township v. Pennsylvania Labor Relations Board,
878 A.2d 977, 982 n.13 (Pa. Cmwlth. 2005).



                                               6
                                     Discussion
            On appeal, the Borough asserts that the Board erred in concluding that
the firefighters are Borough employees rather than volunteers and that the Board’s
factual findings are unsupported by substantial evidence.
            Section 1 of Act 111 provides:

            Policemen or firemen employed by a political subdivision of
            the Commonwealth or by the Commonwealth shall, through
            labor organizations or other representatives designated by
            fifty percent or more of such policemen or firemen, have
            the right to bargain collectively with their public employers
            concerning the terms and conditions of their employment,
            including compensation, hours, working conditions,
            retirement, pensions and other benefits, and 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. §217.1 (emphasis added).
            Preliminarily, we note that neither Act 111 nor the PLRA defines the
term “volunteer.” However, the customary legal definition of “volunteer” is “[a]
person who gives his services without any express or implied promise of
remuneration.” BLACK’S LAW DICTIONARY 1576 (6th ed. 1990) (emphasis added).
In this case, it is undisputed that the Borough pays the firefighters hourly wages in
exchange for their services, at rates between $10.00 per hour to $15.00 per hour, and
that the Borough pays the firefighters for all of the hours that they work, excluding
overtime. (F.F. at No. 17.) The payment of compensation, particularly financial
compensation based upon the number of hours worked, is the hallmark of
“employee” status in the labor relations context. See, e.g., Seattle Opera v. National
Labor Relations Board, 292 F.3d 757, 762 (D.C. Cir. 2002) (stating that an employee




                                          7
is any person who works for another for financial or other compensation).5 At the
very least, the payment of hourly wages is sufficient to take a worker out of the realm
of being a “volunteer” (unless a statute says otherwise) and/or militates toward a
finding that an employment relationship exists. See Juino v. Livingston Parish Fire
District, 717 F.3d 431, 437 (5th Cir. 2013) (observing that courts “have held that a
volunteer was not an ‘employee’ when there was no showing of remuneration.”);
Krause v. Cherry Hill Fire District 13, 969 F. Supp. 270, 277 (D.N.J. 1997)
(concluding that firefighters were not volunteers “[i]n view of the fact that the
[firefighters] both expected and received hourly compensation . . . .”). Because the
payment of hourly-based wages takes the firefighters outside the realm of the
definitional concept of volunteers, the dispositive issue, then, is whether the
firefighters, in light of the circumstances of this case, are “employees” of the
Borough.
              “The determination of the employment status is a matter of fact in each
case and must be determined by the peculiar circumstances of the individual
situation.” Rodgers v. Washington County Institution District, 37 A.2d 610, 611 (Pa.
1944). In Sweet v. Pennsylvania Labor Relations Board, 322 A.2d 362 (Pa. 1974),
the Pennsylvania Supreme Court set forth the following test for determining whether
an employer-employee relationship exists: whether the putative employer has (1) the
right to select the employee; (2) the power to discharge the employee; and (3) the
right to direct the work to be done and the manner in which the work is done. Id. at
365; see also International Association of Fire Fighters, Local 2844, AFL-CIO, CLC

       5
        Due to similarities between the National Labor Relations Act (NLRA), 29 U.S.C. §§151-
169, and the PLRA, “in the context of interpreting our Commonwealth’s labor laws, our [courts
have] not hesitated to consider, and to follow, federal interpretation of the NLRA.” Office of
Administration v. Pennsylvania Labor Relations Board, 916 A.2d 541, 550 (Pa. 2007).



                                              8
v. Pennsylvania Labor Relations Board, 504 A.2d 422, 424 (Pa. Cmwlth. 1986) (en
banc) (stating that Sweet “require[s] an examination into who possesses the right to
control the economic and conditional terms of employment”). The Sweet Court
further stated that “[t]he duty to pay an employe’s salary is often coincident with the
status of employer, but not solely determinative of that status.” 322 A.2d at 365.
Following Sweet, in Coleman v. Board of Education of the School District of
Philadelphia, 383 A.2d 1275 (Pa. 1978), the Pennsylvania Supreme Court explained
that “[t]he [Sweet] test is thus framed in terms of the right and power to exercise such
control, not in terms of whether the right and power were actually exercised or
whether they were delegated to another.” Id. at 1279 (emphasis in original).
             Here, the Board found that:        the Ordinance established the Fire
Department and reserved to the Borough the right to establish rules, regulations, and
procedures for the Fire Department; the Borough owns all of the Fire Department’s
equipment and buildings; the Borough controls and pays for the Fire Department’s
budget and expenditures; the Fire Department is run by the Fire Chief and the
Borough Secretary, both of whom are Borough employees; and the firefighters are
required to punch in and out of work and must remain at the fire station during their
shifts. (F.F. at Nos. 6-8, 10-11, 13-14.) With regard to wages, the Board found that:
the Borough pays the firefighters hourly wages and withholds taxes from their
paychecks; the Borough Council sets and approves the firefighters’ hourly pay rates;
the firefighters may work overtime if it is approved by the Fire Chief, a Borough
employee; and if overtime is not approved, the firefighters must punch out and work
as volunteers without pay. (F.F. at Nos. 15-18.) Critically, the Borough did not file
exceptions to any of these factual findings, so they are conclusive on appeal. See 34




                                           9
Pa. Code §95.98(a)(3) (stating that exceptions not specifically raised before the Board
are waived).
               Upon examination, we conclude that these factual findings stand in
diametric contrast to the findings in International Association of Fire Fighters, Local
2844, AFL-CIO, CLC. In that case, this Court concluded that a township did not
exercise control over the important conditions of the employment relationship and,
therefore, was not the “employer” of a volunteer fire company. Specifically, the
findings of fact in International Association of Fire Fighters, Local 2844, AFL-CIO,
CLC demonstrated that the volunteer fire company – not the township – established
its own internal house rules, owned its equipment and fire house, determined the
wages, benefits, and hours of the firefighters, and had its own president, board of
directors, and fire chief. The polar opposite situation is present here, where the
Borough has undertaken the task of governing and dictating all the terms and
conditions of the working relationship that the volunteer firefighters decided for
themselves and on their own accord in International Association of Fire Fighters,
Local 2844, AFL-CIO, CLC. Therefore, we conclude that the above unchallenged
findings sustain the Board’s determination that the Borough exercises control over
the firefighters’ wages, hours, and working conditions.
               Further, this Court has stated that “[t]he employer’s power to control the
nature and the parameters of the employee’s activities is the key to the relationship.”
Harmony Volunteer Fire Company v. Pennsylvania Human Relations Commission,
459 A.2d 439, 442 (Pa. Cmwlth. 1983). In other words, an extremely important
component of any employer-employee relationship is the employer’s “right to direct
the work to be done and the manner in which the work is done.” Sweet, 322 A.2d at
365.



                                            10
             In Kelley v. Delaware, Lackawanna & Western Railroad Co., 113 A.
419 (Pa. 1921), the employer entered into a contract with a mine worker, which
provided that “[t]he work was to be carried on under the supervision and according to
the direction of the manager or his duly authorized agent,” id. at 420, and the mine
foreman was the designated agent of the manager. Our Supreme Court concluded
that, through the manager and/or the mine foreman, the employer actually exercised
the right to direct and control the specific details of the work project and that the
manager had the power to discharge an employee. As the Supreme Court concluded:

             Recurring to the contract, we ascertain that it provides [that]
             the mine foreman shall have control of the work, and the
             [mine worker] shall be subject to his orders and directions
             . . . . with the right to remove from the work any workmen
             who in the opinion of its manager are incompetent, careless,
             or for any other reason unsatisfactory, and that the
             interpretation of the contract with reference to the work
             shall be by the manager whose decision shall be conclusive
             . . . . It is therefore manifest that through the manager and
             mine foreman full control over the means and manner of
             performance was reserved to [the employer], and there was
             left in the [mine worker] no independence whatever in
             manner and means of performance. This leads to the
             inevitable conclusion that the relation of the [mine worker]
             to the [employer] was that of employee . . . .
Id.
             Here, the Board found that the Fire Department is run, on a practical
basis, by two Borough employees: the Fire Chief and the Borough Secretary. In
particular, the Borough Secretary runs the day-to-day operations, and, among other
things, schedules firefighters on a monthly calendar and assigns them to specific
shifts. The Fire Chief administers the rules and regulations, is in charge and directs
the movements of the firefighters at a fire, and gives directives to the individual
firefighters in their daily operations when they are not attending to a fire. In addition,


                                           11
the Fire Chief possesses the power to discipline the firefighters, including the
authority to terminate them, while the Borough Manager has the authority to
discipline the firefighters for violating the Borough policies. (F.F. at Nos. at 13, 21-
22, 26, 30.) Notably, for any shift on which a firefighter is scheduled, the firefighter
must remain at the Fire Department or otherwise engage in activities related to his or
her duties, and is not free to leave the Fire Department to run personal errands or
engage in personal matters. (F.F. at 14.) Cf. Mendel v. City of Gibraltar, 842 F.
Supp. 2d 1035, 1042 (E.D. Mich. 2012), rev’d on other grounds by 727 F. 3d 565
(6th Cir. 2013) (“Lack of control is illustrated by this undisputed fact: the firefighters
are not required to report when the City calls them to respond to a fire emergency.”);
Wolverton v. City of Kenner, 225 So. 2d 662, 663 (La. Ct. App. 4th Cir. 1969)
(“Indeed the evidence is unrebutted that the individual volunteer is at liberty to go or
not to go to any particular fire as he alone sees fit, making it plain that not even the
Volunteer Company controls him.”).
             The Borough did not take exception to any of the above findings of fact
either and, hence, they too are binding and conclusive for purposes of this appeal.
See 34 Pa. Code §95.98(a)(3).
             These findings, in turn, render the circumstances of this case akin to
those in Kelley. Therefore, in accordance with Kelley, we conclude the Borough,
acting through the Borough Secretary and the Fire Chief, actually directs and controls
the details of the firefighters’ work and has the power to discipline and discharge the
firefighters if necessary. Significantly, it is undisputed that the Borough Secretary
and the Fire Chief advance the interests of the Borough in managing and directing the
firefighters in terms of their working schedules, job duties, and discipline, and both
the Borough Secretary and Fire Chief are statutorily designated – or are on the same



                                           12
level – as the Borough in its capacity of “employer.” See Section 3(c) of Act 111, 43
P.S. §217.3(c) (“The term ‘employer’ includes any person acting, directly or
indirectly, in the interest of an employer . . .”); see also Lancaster County v.
Pennsylvania Labor Relations Board, 124 A.3d 1269, 1287 (Pa. 2015) (interpreting
similar statutory provision in PERA and concluding that supervisors were the
“employer” because the supervisors were “individual[s] having authority in the
interests of the employer to hire, transfer, suspend, layoff, recall, promote, discharge,
assign, reward or discipline other employes” or “to a substantial degree effectively
recommend such action . . . .”) (citation omitted).
              The Borough contends, though, that the Board’s Finding of Fact No. 21,
insofar as it stated that “the final say on discipline rests with the Borough,” id., is not
supported by substantial evidence.
              Under Pennsylvania law, it is within the province of the Board, as the
factfinder,   to   weigh    conflicting    evidence,    make    appropriate     credibility
determinations, resolve primary issues of fact, and draw reasonable inferences from
the established facts and circumstances. Lehighton Area School District v.
Pennsylvania Labor Relations Board, 682 A.2d 439, 442 (Pa. Cmwlth. 1996).
Findings of fact are conclusive on appeal as long as the record contains substantial
evidence to support those findings. Uniontown Area School District v. Pennsylvania
Labor Relations Board, 747 A.2d 1271, 1274 (Pa. Cmwlth. 2000).
              “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Delaware County Lodge No. 27,
Fraternal Order of Police v. Pennsylvania Labor Relations Board, 694 A.2d 1142,
1145 n.5 (Pa. Cmwlth. 1997). Stated differently, “[s]ubstantial evidence is more than
a mere scintilla and must do more than create a suspicion of the existence of the fact



                                            13
to be established.” Shive v. Bellefonte Area Board of School Directors, 317 A.2d
311, 313 (Pa. Cmwlth. 1974).
             In performing a substantial evidence analysis, this Court must view the
evidence in the light most favorable to the party who prevailed before the factfinder
and draw all reasonable inferences which are deducible from the evidence in favor of
the prevailing party. See Waldameer Park, Inc. v. Workers’ Compensation Appeal
Board (Morrison), 819 A.2d 164, 168 (Pa. Cmwlth. 2003); Tapco, Inc. v.
Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa.
Cmwlth. 1994). Furthermore, in a substantial evidence analysis where both parties
present evidence, it does not matter that there is evidence in the record which
supports a factual finding contrary to that made by the factfinder. Rather, the
pertinent inquiry is whether there is any evidence which supports the factual finding
actually made. See Waldameer Park, 819 A.2d at 168; Tapco, Inc., 650 A.2d at
1108-09.
             At the hearing, the Borough Secretary testified that if a disciplined
firefighter has “a major problem[,] [he or she] can go above the department head, the
[F]ire [C]hief, and go to the Borough,” specifically the Borough Manager. (Notes of
Testimony (N.T., 1/9/14, at 325-26.) In one instance, a termination letter specifically
advised a discharged firefighter to contact the Borough Manager with any questions,
and the Borough Manager attended the termination meeting. (Id. at 306, 325.) The
Borough Secretary further testified that a disciplined firefighter’s final recourse is to
appeal to the Borough Manager. (Id. at 326.) While it is true that the Borough
Secretary was unaware of specific instances in which the Borough Manager had
overruled the Fire Chief, she testified that the Borough Manager can overrule the Fire
Chief’s disciplinary decisions. (Id. at 326-27.) Furthermore, the Borough Manager



                                           14
testified that if a member of the Fire Department does not adhere to the Borough’s
policies, the Borough Manager has “the power as a member to discipline anyone. It’s
[his] function [to discipline] those violating policies in” the Fire Department. (Id. at
199.)
                 Viewing this evidence in the light most favorable to the Fire
Department,6 we conclude that the record contains substantial evidence to support the
Board’s finding that the Borough Manager, a high-ranking supervisory agent who
acts on behalf of the Borough Council, has the ultimate authority on disciplinary
matters. See 43 P.S. §217.3(c) (“The term ‘employer’ includes any person acting,
directly or indirectly, in the interest of an employer . . .”); Section 1141 of the
Borough Code,7 8 Pa.C.S. §1141 (stating that “[t]he council of a borough may, at its
discretion at any time, create by ordinance the office of borough manager” and that


        6
         Although the Borough Secretary stated that she “believed” and “guessed” that the Borough
Manager could overrule the Fire Chief, (N.T at 326-27), a fair contextual reading of her testimony,
particularly the Borough Manager’s affirmation that she “would say yes” to the above proposition,
reveals that her statements were positive assertions of truth and were not “so uncertain, inadequate,
equivocal, ambiguous, or contradictory as to make findings or legitimate inferences therefrom a
mere conjecture.” Mrahunec v. Fausti, 121 A.2d 878, 880 (Pa. 1956). See N.T. at 328 (“Q. And if
[the firefighter] didn’t like the decision of the Fire Board, he could then go to the Borough
manager? A. I would say yes.”); Somerset Welding and Steel v. Workmen’s Compensation Appeal
Board (Lee), 650 A.2d 114, 117-18 (Pa. Cmwlth. 1994) (stating that “[t]he rationalization of a
witness’[s] testimony and the acceptance of those portions thereof on which to make findings . . . is
the province of the [fact-finder]” and reiterating that “[t]he appearance of inconsistencies in . . .
testimony does not render that testimony equivocal.”); see also Inservco Insurance Services v.
Workers’ Compensation Appeal Board (Purefoey), 902 A.2d 574, 579 (Pa. Cmwlth. 2006)
(reviewing testimony, “I would say that I cannot say that he’s completely [recovered]” and
concluding that “[t]his testimony, while admittedly not a model of clarity, is not equivocal.”);
Czankner v. Sky Top Lodge, Inc., 308 A.2d 911, 915 (Pa. Cmwlth. 1973) (concluding that
testimony, “I would say that the exact cause of death was due to a pulmonary embolism,” was
unequivocal evidence).

        7
            8 Pa.C.S. §§101-3501.



                                                 15
“[t]he borough manager shall serve at the pleasure of council . . . .”); see also
Lancaster County, 124 A.3d at 1287. Although the record indicates that the Borough
Manager has not yet exercised this authority, and it is conceivable that he never will,
the key inquiry in determining whether an employment relationship exists is whether
the putative employer has “the right and power to exercise . . . control, not . . .
whether the right and power were actually exercised . . . .” Coleman, 383 A.2d at
1279. Therefore, we conclude that the Board did not err in determining that the
Borough, acting through the Borough Manager, retained the right to discipline or
terminate a firefighter irrespective if any discipline imposed by the Borough
Secretary or Fire Chief.
             The Borough also contends that the firefighters cannot be employees of
the Borough because the Borough Council uses the term “appoint,” rather than “hire,”
when voting to approve the Fire Chief’s recommendation for a firefighter. The
Borough asserts that the record lacks substantial evidence to establish that the
Borough Council in fact “hires” the firefighters.
             We disagree. The Borough’s argument is largely one of semantics and,
based on the current record, there is no meaningful legal distinction between the
Borough Council’s “appointment” or “hire” of a firefighter. As the Board explained:

             It is undisputed that the [Fire] Chief, a Borough employee,
             makes a recommendation to the Borough Council for the
             “appointment” of a person as a firefighter in the Fire
             Department. Indeed, the mere fact that the [Fire] Chief
             must seek Council’s appointment of a firefighter implies
             that the Borough may deny the appointment. Thus, it is the
             Borough Council, not the [Fire] Chief or Fire Department,
             which ultimately decides whether a person becomes a
             firefighter in the Borough . . . . The Borough Council’s
             “appointment” of a firefighter carries with it the
             understanding that the firefighter will perform services for
             the Borough within the Fire Department, including fire

                                          16
              suppression and maintenance of Borough property, and in
              exchange for those services the firefighter will receive from
              the Borough an hourly wage. Indeed it is the same
              relationship created when the Borough indisputably “hires”
              a person for an hourly wage in the Borough office, streets
              department, police department, or anywhere else within the
              Borough.
(Board’s Decision at 7.)
              Given this logical and reasonable inference, to which the Fire
Department is entitled as the prevailing party, we conclude that the record contains
substantial evidence that supports the Board’s determination that the Borough
Council has the authority to hire firefighters and indeed hires the firefighters as a
matter of law.
                 Accordingly, having determined that the Borough pays the firefighters
hourly wages, exercises control over the firefighters’ wages, hours, and working
conditions, directs and controls the details of the firefighters’ work, possesses the
authority (or retains the authority) to discipline and/or discharge the firefighters, and
has the power to hire the firefighters, we conclude that the Board did not err in
concluding that the relationship between the Borough and the firefighters in the Fire
Department was that of employer and employee. See Sweet, 322 A.2d at 365 (“The
relation between employer and employe exists when a party has the right to select the
employe, the power to discharge him, and right to direct both the work to be done and
the manner in which such work shall be done.”).
              The Borough’s remaining arguments lack merit. The Borough contends
that it “never took any legislative action evidencing an intent to provide fire
protection services through a professional fire department consisting of Borough
employees.”      (Borough’s brief at 29.)    To the contrary, the Ordinance and the




                                            17
Borough’s conduct, as described and detailed above, prove that the Borough took
action sufficient to create an employment relationship.
               The Borough further asserts that the firefighters are equitably estopped
from arguing that they are not volunteers because they have belonged to volunteer
firefighting organizations and received certain benefits.           More specifically, the
Borough maintains that the firefighters’ participation in the Emmaus Fireman’s Relief
Association (EFRA) and the Foreign Fire Insurance Tax Distribution Law
(FFITDL),8 providing for pension benefits, bar the firefighters from claiming that
they are employees.
               The Board correctly dismissed this argument as follows:

               With regard to the Borough’s claims of estoppel, the
               Hearing Examiner rejected those claims noting that the
               volunteer benefits under the [EFRA] were also available to
               employees, and thus could not estop the firefighter from
               asserting employee status.        Furthermore, the Hearing
               Examiner rejected the Borough’s argument that the
               firefighters should be estopped from asserting employee
               status because the Fire Department received state funding
               under the [FFITDL], where it was the Borough, not the
               firefighters, who had repeatedly certified to the state that the
               firefighters were volunteers in order to obtain the state
               funding. Nevertheless, we note as held by the Hearing
               Examiner, citing to Borough of Whitaker, 14 PBER §14273
               (Final Order, 1983), that “[i]t is well settled that the status
               of alleged employees under other statutory provisions, such
               as the Civil Service Act . . . or [FFITDL] is not dispositive
               of their coverage under Act 111.” [citation omitted.]

               Similarly, the Borough’s claims that the Hearing
               Examiner’s order directs the Borough to employ firefighters
               in violation of other laws, such as civil service, veteran’s
               preference or any number of other employment statutes is

      8
          Act of December 18, 1984, P.L. 1005, 53 P.S. §§895.701—895.707.



                                              18
            without foundation in law or fact. Notably, the Borough
            has not pointed to a single firefighter whose appointment
            violated any laws of the Commonwealth or United States.
            The crux of the matter here is that because firefighters were
            appointed by the Borough to provide services for an hourly
            wage, the Borough hired them as employees under the
            PLRA and Act 111. If laws were violated by the Borough’s
            appointment of a firefighter, it was not caused by the
            Board’s decision in this case.
(Board’s decision at 11-12.)
            We agree with the Board’s analysis and adopt it as our own. In addition,
we point out that “[i]n the absence of expressly proved fraud, there can be no estoppel
based on the acts or conduct of the party sought to be estopped” and “an estoppel
cannot be created by representations or opinions concerning matters of law.” Wilson
v. Transport Insurance Co., 889 A.2d 563, 575 (Pa. Super. 2005). Here, there is no
proof, or even suggestion, that the firefighters engaged in fraudulent conduct and the
issue of whether one is an “employee” and/or “employer” under Act 111 is a
conclusion of law upon which estoppel does not apply.
            The Borough’s reliance on Tyrone Fire Patrol Company, No. 1 v.
Tyrone Borough, 92 A.3d 79 (Pa. Cmwlth. 2014), is misplaced. First and foremost,
Tyrone involved an entirely different legal issue than the one at bar; namely, whether
the volunteer fire police members had a contractual or continued expectation in
employment for purposes of due process, which we concluded that they did not. Id.
at 90. Second, in reaching our decision in Tyrone, we briefly noted that the volunteer
fire police members were not paid wages and, as a result, were not employees. Id. at
91; see also id. at 92 n.14 (noting that the fire police members were “not paid
employees that have a statutory right to a continued expectation of employment”).
Unlike Tyrone, the firefighters in this case are paid hourly wages in exchange for
their services, and the Borough controls the amount and payment of such wages.


                                          19
While the payment of wages alone is not dispositive of an employment relationship,
see Sweet, 322 A.2d at 365, when viewed together with the other credible evidence of
record in this case – evidence that was lacking in Tyrone – the Board’s conclusion in
that the firefighters are employees of the Borough under Act 111 rests upon
additional evidence and facts that were not present in Tyrone. Because we have
concluded that the Board did not err in determining that the firefighters in the Fire
Department are employees of the Borough, and not volunteers, our decision in Tyrone
is readily distinguishable and has no bearing on this case.
             Finally, the Borough has submitted applications for post-argument
communications, citing the Supreme Court’s decision in Philadelphia Firefighters’
Union, Local 22, International Association of Firefighters, AFL-CIO v. City of
Philadelphia, 119 A.3d 296 (Pa. 2015), and the concurring statement of a Justice,
joined by another Justice, in Chambersburg Borough v. Pennsylvania Labor
Relations Board, 139 A.3d 189 (Pa. 2016) (Dougherty, J., concurring from the
dismissal of the appeal as improvidently granted, joined by Donohue, J.). Although
this Court grants the Borough’s applications, these cases are not beneficial to the
Borough’s position.
             In Philadelphia Firefighters’ Union, Local 22, the only issue that the
Supreme Court addressed was whether the City of Philadelphia had a duty to
immediately fill vacancies for the positions of fire captain and fire lieutenant under
the language and terms of its Civil Service Regulations.        The Supreme Court
concluded in that case that the City of Philadelphia had no such obligation. Clearly,
Philadelphia Firefighters’ Union, Local 22 has no logical connection to the issue
presented in this case. Moreover, the concurring opinion in Chambersburg Borough
from the dismissal of the appeal as being improvidently granted is non-binding



                                           20
authority on this Court. Nonetheless, that case dealt with the employer-employee
relationship in the secondary boycott context, and the concurring opinion expressed
the view that a secondary boycott could not occur because the firefighters, “volunteer
members, who are free to decline to provide their services for any reason or no
reason, are not ‘employees’ under [the PLRA or PERA].” 139 A.3d at 192. Even if
this Court were to prescribe precedential value to this concurring opinion, the
firefighters in this case, unlike those in Chambersburg Borough, are employees under
Act 111 and must show-up and remain at the Fire Department, engage in activities
related to their employment duties, and are not free to leave the Fire Department to
run personal errands or engage in personal matters. Therefore, we conclude that the
decisions cited by the Borough do not provide any kind of guidance in this matter.


                                      Conclusion
             By its own terms, Act 111 permits firefighters to unionize when they are
“employees” of a municipality.       The Borough references the interplay between
statutes and volunteer firefighters and suggests that these statutes operate collectively
to prohibit an employment relationship with the Borough under Act 111, or at least
command and dictate that no “real” employment relationship exists. Although the
Borough is statutorily mandated to create a fire force and provide workers’
compensation insurance for volunteer firefighters, and has the statutory discretion to
provide funding, pensions, and other fringe benefits, such as health insurance, to the
volunteer firefighters, this Court has already held that these “peripheral contacts do
not amount to any substantive authority or real control [by the township] over the
economic and conditional terms of employment for the housemen at the individual
volunteer fire companies.” International Association of Fire Fighters, Local 2844,



                                           21
AFL-CIO, CLC, 504 A.2d at 425. We do not disagree with this holding, and all of the
mandatory “peripheral contacts” detailed in International Association of Fire
Fighters, Local 2844, AFL-CIO, CLC, have not factored in either the Board’s or this
Court’s decision. To the extent that any of the discretionary “peripheral contacts”
have contributed to our conclusion, they possess little but palpable weight for our
decision, which, in overwhelming part, has as its genesis and foundation the presence
of additional factors, specifically those that directly pertain to the Sweet test.
               It is extremely relevant to our conclusion that the statutes referenced by
the Borough do not dictate that the Borough establish an employment relationship
with the firefighters, nor do the statutes have the per se effect of creating a de facto
employment relationship. Specifically, none of the statutes that the Borough cites
place upon the Borough the affirmative obligation to pay the firefighters in the Fire
Department an hourly wage, or, more importantly, to exert significant control over
the work to be done by the firefighters and the manner in which it is to be done,
which is the essence of the employment test that our Supreme Court created in
Sweet.9 Instead, the Borough, through the Ordinance and its own conduct, took the


       9
         The Dissent raises many of the same arguments as the Borough. In addition, although not
expressed in such terms, the Dissent appears to suggest that Act 111 is incompatible or in conflict
with the statutory regime regarding volunteer firefighters. However, because there is a very strong
presumption that a statute does not impliedly repeal another statute, see Cedarbrook Realty, Inc. v.
Nahill, 399 A.2d 374, 383 (Pa. 1979), there has to be a point where volunteer firefighters become
employees of a municipality for purposes of Act 111. True, under the pertinent statues, a
municipality can help fund and provide financial assistance to a volunteer fire department, akin to
that which a parent company does with an unconsolidated subsidiary. But there is a remarkable
difference between the situation where a parent merely owns a subsidiary financially and the
scenario where the parent intermingles its operations with the subsidiary and controls the
subsidiary's operations by creating an employment relationship. Where, as here, a municipality
designates the leaders of a fire department as its own high-ranking employees and those employees
have the power to discipline, discharge, and control the day-to-day operations of the firefighters, the
(Footnote continued on next page…)

                                                 22
measures necessary to confer upon it the status of employer and create an
employment relationship with the firefighters as employees. Having taken such
action, and depriving the Fire Department of the freedom of true “volunteers” to
conduct its own affairs when and how it sees fit, the Borough has ensured that its
firefighters are under its control and will obey its commands. At the same time,
however, the Borough has designated itself the firefighters’ employer for purposes of
Act 111.
               With all this being stated, we affirm the Board’s final order certifying
the Association as the exclusive representative of all full-time and regular part-time
firefighters of the Fire Department.



                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




(continued…)

municipality effectively “merges” with the fire department for purposes of employment law and Act
111.

        Significantly, the Dissent does not reference or discuss any statute or statutory scheme that
requires a municipality to exert this type of control over a volunteer fire company. Accordingly, we
view Act 111 and the statutes that the Borough and the Dissent cite as capable of concurrent
operation, concluding that there is no irreconcilable conflict present amongst the statutes, and, at
most, that the Dissent has merely shown a general overlap of the statutes in terms of basic subject
matter. See Cedarbrook Realty, Inc., 399 A.2d at 383 (“In view of the presumption against implied
repeal, it is authoritatively stated that this presumption may be overcome by a showing that two acts
are irreconcilable, clearly repugnant as to vital matters to which they relate and so inconsistent that
the two cannot have concurrent operation . . . . Appellant has shown that the two statutory schemes
are different and may be overlapping. Such a showing does not amount to irreconcilability under
Pennsylvania law.”).



                                                 23
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Emmaus,                   :
                Petitioner           :
                                     :    No. 1847 C.D. 2014
                 v.                  :
                                     :
Pennsylvania Labor Relations         :
Board,                               :
                 Respondent          :


                                  ORDER


           AND NOW, this 13th day of March, 2017, we hereby grant the
Borough of Emmaus’s applications to file post-submission communications and
affirm the September 16, 2014 final order of the Pennsylvania Labor Relations
Board.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Emmaus,                             :
                             Petitioner        :
                                               :
                      v.                       :    No. 1847 C.D. 2014
                                               :    Argued: June 8, 2016
Pennsylvania Labor Relations                   :
Board,                                         :
                        Respondent             :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge




DISSENTING OPINION
BY JUDGE COHN JUBELIRER                             FILED: March 13, 2017



       Respectfully, I believe that whether the volunteer firefighters of the
“Emmaus Fire Department”1 (Fire Department), a non-profit corporation, are
employees of the Borough of Emmaus must be examined within the extensive
statutory framework governing the relationship between municipalities and




       1
         References to “Fire Department” in this case are to the separate non-profit corporation,
incorporated as “Emmaus Fire Department,” and established as a “volunteer” Fire Department,
(Borough Ordinance No. 887, R.R. at 350a), and not a department of the Borough government.
volunteer firefighters in Pennsylvania.2 The General Assembly, by adopting the
various statutes concerning volunteer firefighters, has intended to allow volunteer
firefighters to exist as a distinct class of firefighters. Harmony Volunteer Fire Co.
and Relief Ass’n v. Pa. Human Relations Comm’n, 459 A.2d 439, 443 (Pa.
Cmwlth. 1983). These enactments reflect the General Assembly’s recognition that
volunteer fire departments are an integral part of fire protection in Pennsylvania,
and that due to the extensive benefits available to them, and the municipalities’
control over their activities, these firefighters occupy a unique area in the context
of traditional employment relationships. Accordingly, in order to give effect to the
legislature’s intent in matters involving volunteer firefighters, before a
determination can be made regarding whether an employment relationship exists
by using, for example, the test set forth in Sweet v. Pennsylvania Labor Relations
Board, 322 A.2d 362, 365 (Pa. 1974), the facts must first be analyzed through the
prism of the vast statutory framework underpinning volunteer firefighters to
determine whether these facts actually signify a true employment relationship or
reflect the distinct and unique statutory arrangement between volunteer firefighters
and the municipalities they serve.             Unfortunately, in concluding that an
employment relationship exists between the Borough and the volunteer firefighters
here, such that the Association can be certified as the exclusive representative
under Act 111, the Hearing Examiner, the Board, and the Majority did not consider
the evidence and facts in the context of this extensive and overarching statutory
framework. When this is done, however, it is apparent to me that the Borough’s



       2
          The Pennsylvania State Association of Boroughs and the Pennsylvania State
Association of Township Supervisors also filed amicus curiae briefs in support of the Borough.

                                           RCJ-2
actions fit within this unique statutory framework and do not create an employment
relationship under Act 111. I would, therefore, reverse.
       Currently an estimated 94 percent of municipalities in Pennsylvania rely on
volunteer firefighters to provide fire protection services.3 Given the integral role
that volunteer firefighters play in providing fire protection services, which are
critical to the safety and welfare of the public, it is not surprising that the General
Assembly has enacted a myriad of statutes governing volunteer firefighter safety
and the relationship between volunteer firefighters and the municipalities they
serve. This Court has previously noted that “[n]umerous legislative enactments . . .
interweave the functioning of the government and the fire company” and that
“[o]ther statutes also recognize the intimate relationship between a volunteer fire
company and governmental entities.” Harmony Volunteer Fire Co. and Relief
Ass’n, 459 A.2d at 443. This interweaving is exemplified by numerous statutes
which provide for municipal involvement in volunteer firefighter companies
through the provision of services, providing financial and administrative
assistance, and levying taxes for such appropriations.4              Several other statutes


       3
           November/December 2014 Newsletter, The Center for Rural Pennsylvania: A
Legislative       Agency         of       the     Pennsylvania          General      Assembly,
http://www.rural.palegislature.us/publications_newsletter_1114.html#story3 (last visited March
8, 2017).
        4
          For example, the Borough Code provides that boroughs must “ensure that fire and
emergency medical services are provided within the borough by the means and to the extent
determined by the borough, including the appropriate financial and administrative assistance for
these services.” Section 1202(56) of the Borough Code, 8 Pa. C.S. § 1202(56) (emphasis added).
The Borough Code explicitly allows borough councils to fund volunteer fire companies by
authorizing borough councils to levy taxes “for the purposes of making appropriations to fire
companies both within and without the borough and of contracting with adjacent municipalities
or volunteer fire companies in adjacent municipalities for fire protection.” Section 1302(6) of
the Borough Code, 8 Pa. C.S. § 1302(6). Similarly, Section 3 of what is commonly known as the
                                                                               (Continued…)
                                            RCJ-3
further the legislative intent to encourage municipalities’ involvement in providing
funding for volunteer fire companies.5 These include authorizing boroughs to
secure workers’ compensation insurance,6 as well as pension contributions from
the Commonwealth,7 for volunteer firefighters.                 Additional statutes reflect the

Second Class City Code, Act of March 7, 1901, P.L. 20, gives Second Class Cities, i.e.
Pittsburgh, the power “to organize a fire department, with or without pay.” 53 P.S. § 23149.
        5
          Pursuant to Section 7403 of the Emergency Management Services Code (EMS Code),
“[a] city, borough or township may expend out of the public funds of the municipality an amount
necessary to secure insurance or compensation for volunteer firemen killed or injured while
going to, returning from or attending fires in the municipality or territory adjacent thereto.” 35
Pa. C.S. § 7403.
        6
          Section 1202(26)(i)(A) of the Borough Code, 8 Pa. C.S. § 1202(26)(i)(A). Accordingly,
Section 601 of the Workers’ Compensation Act (WC Act), Act of June 2, 1915, P.L. 736, added
by Section 15 of the Act of December 5, 1974, P.L. 782, as amended, 77 P.S. § 1031, allows
volunteer firefighters to obtain workers’ compensation insurance from the municipality they
serve.
        7
          Under what is commonly known as the Volunteer Firefighters’ Relief Association Act
(VFRAA), 35 Pa. C.S. §§ 7411-7419, municipalities are encouraged to provide funds to
volunteer firefighters’ relief associations so that volunteer firefighters may receive certain
benefits and protections. A “Volunteer firefighters’ relief association” is defined as:

       An organization formed primarily to afford financial protection to volunteer
       firefighters against the consequences of misfortune suffered as a result of their
       participation in the fire service. The organization may contain within its
       membership the members of one or more fire companies and may serve secondary
       purposes, as set forth in this subchapter, but only if adequate provisions have been
       first made to serve the primary purpose.

35 Pa. C.S. § 7412. The purpose of the VFRAA is “to encourage individuals to take part in the
fire service as volunteer firefighters by establishing criteria and standards for orderly
administration and conduct of affairs of firefighters’ relief associations to ensure . . . that funds
shall be available for the protection of volunteer firefighters and their heirs.” Section 7413 of the
VFRAA, 35 Pa. C.S. § 7413. Further, under Section 7416(f) of the VFRAA, volunteer
firefighters may obtain other benefits such as life, health, disability, and rehabilitation insurance.
35 Pa. C.S. § 7416(f). Volunteer firefighters may also receive pension contributions from the
Commonwealth pursuant to the Foreign Fire Insurance Tax Distribution Law (FFITDL), Act of
December 18, 1984, P.L. 1005, 53 P.S. §§ 895.701-.707. The FFITDL allocates Commonwealth
funds to municipalities in order to provide certain benefits to municipal firefighters, such as
                                                                                    (Continued…)
                                               RCJ-4
General Assembly’s intention that municipalities play a significant role in the
operation of volunteer fire companies in addition to allowing municipalities to
utilize volunteer fire companies for fire protection and encouraging municipalities
to provide funding and other benefits for volunteer firefighters. The Emergency
Management Services Code (EMS Code) authorizes the Pennsylvania Emergency
Management Agency (PEMA) to provide loans to volunteer fire companies for the
purpose of, inter alia, purchasing or modernizing facilities and equipment. Section
7364 of the EMS Code, 35 Pa. C.S. § 7364. Section 7364(g) of the EMS Code
envisions a role for political subdivisions, like municipalities, in the ownership of
volunteer fire companies’ equipment and facilities, stating that volunteer fire
companies are eligible for loans “regardless of legal ownership in whole or in part
by any political subdivision of any facilities or apparatus equipment used by the
volunteer fire company.” 35 Pa. C.S. § 7364(g). In addition, “[a]ny equipment or
facilities financed [by PEMA] may be transferred to a political subdivision served
by the volunteer fire company.”         Id. Prior to obtaining a loan from PEMA,
volunteer fire companies are required to demonstrate that they have available 20
percent of the total cost of the facilities or equipment; however,

       [i]f a volunteer fire company . . . is unable to meet the 20%
       requirement . . . then a political subdivision which is served by the
       volunteer company may pledge its credit in the amount of funds
       necessary to satisfy the 20% requirement and, if it does so, shall
       cosign the application submitted by the volunteer company.




pensions. Sections 703, 706 of the FFITDL, 53 P.S. §§ 895.703, 895.706. However, in order to
obtain pension contributions, the governing body of a municipality must certify to the
Pennsylvania Auditor General that the relief association is actually comprised of volunteer
firefighters.

                                          RCJ-5
35 Pa. C.S. § 7364(c) (emphasis added). The Borough Code also authorizes
borough councils to permit volunteer fire companies “to participate in purchase
contracts for petroleum products entered into by the borough.” Section 1404.1 of
the Borough Code, 8 Pa. C.S. § 1404.1.
      The General Assembly has further indicated that municipalities are to play a
role in volunteer firefighter training. The EMS Code provides for the Department
of Education to establish the “Pennsylvania State Firemen’s Training School”
(Training School) in order to provide “practical training in the control and
extinguishment of fires.” Section 7351 of the EMS Code, 35 Pa. C.S. § 7351.
Eligibility for admission to the school is available to “[a]ll firefighters who are
regularly employed by any local political subdivision . . . and all regularly enrolled
members of volunteer fire companies . . . [who are] chosen by the governing
authority of each political subdivision.” Section 7354 of the EMS Code, 35 Pa.
C.S. § 7354 (emphasis added). Application for admission to the Training School is
made by the political subdivisions themselves. Section 7355 of the EMS Code, 35
Pa. C.S. § 7355.
      Realizing that volunteer firefighters are integral to providing fire protection
services in our Commonwealth, our General Assembly has also passed several
statutes which allow volunteer firefighters to receive some financial benefits in
return for their services. Although a volunteer is generally considered someone
who does not receive financial compensation for the services provided, our
General Assembly has expressed an intention to allow volunteer firefighters to
receive some compensation without jeopardizing their volunteer status.             As
described above, volunteer firefighters receive workers’ compensation benefits
under the Workers’ Compensation Act (WC Act) and certain pension and health


                                       RCJ-6
insurance benefits under the Volunteer Firefighters’ Relief Association Act
(VFRAA) and Foreign Fire Insurance Tax Distribution Law (FFITDL), even
though they are considered volunteers.
      That, pursuant to numerous statutes, volunteer firefighters may receive
certain financial benefits and still retain their volunteer status reflects the tension
between the traditional definition of employee, as someone who receives
compensation for their services, see e.g., Seattle Opera v. National Labor Relations
Board (American Guild of Musical Artists, AFL-CIO), 292 F.3d 757, 762 (D.C.
Cir. 2002) (holding that an employee is one who receives financial compensation
in return for his work), and the unique statutory arrangement created by the
legislature to govern volunteer firefighters. Moreover, these statutes demonstrate
the General Assembly’s intent to permit volunteer firefighters to receive some
compensation for their services, and be statutorily defined as “employees,”
notwithstanding the fact that they retain their status as volunteers. For example,
while the definition of “employee” under Section 104 of the WC Act, is a “natural
person[] who perform[s] services for another for a valuable consideration,” 77
P.S. § 22 (emphasis added), Section 601(a)(1) of the WC Act expands the
definition of employee to “include . . . members of volunteer fire departments or
volunteer fire companies, including any paid fireman who is a member of a
volunteer fire company and performs the services of a volunteer fireman during
off-duty hours,” 77 P.S. § 1031(a)(1) (emphasis added). See also Borough of
Honesdale v. Workmen’s Comp. Appeal Bd. (Martin), 659 A.2d 70, 76 (Pa.
Cmwlth. 1995) (stating that, under Section 601(a)(1), volunteer firefighters are
deemed employees of the municipality that engages them); Temple v. Milmont Fire
Co., 525 A.2d 848, 849-50 (Pa. Cmwlth. 1987) (same). Another example is found


                                        RCJ-7
in Section 7412 of the VFRAA, which indicates that volunteer firefighters may
sometimes be paid despite their volunteer status, and defines a volunteer firefighter
as:
       [a] person who is a member of:

       (1) a fire company organized and existing under the laws of this
       Commonwealth;
       (2) a fire police unit, rescue squad, ambulance corps or other like
       organization affiliated with one or more fire companies; or
       (3) a fire company or affiliated organization which participates in the
       fire service but does not look to that service as his or her primary
       means of livelihood.
35 Pa. C.S. § 7412 (emphasis added). Likewise, under Section 14339 of The Third
Class City Code, a volunteer firefighter is defined as “a driver of firefighting
apparatus or ambulances, regularly employed and paid by a volunteer fire
company, rendering services recognized and accepted by a city.” 8 11 Pa. C.S. §
14339 (emphasis added). Furthermore, for purposes of governmental immunity
under the Judicial Code, “[v]olunteer firefighters shall be treated as public
employees,” and an “[e]mployee” is defined as “[a]ny person who is acting or who
has acted on behalf of a government unit whether on a permanent or temporary
basis, whether compensated or not and . . . including any volunteer fireman and
any elected or appointed officer. . . .” Sections 8332.3, 8501 of the Judicial Code,
42 Pa. C.S. §§ 8332.3, 8501 (emphasis added).
       When considering the evidence and facts in the context of this extensive and
overarching statutory framework, it is apparent that the Borough’s actions fit


       8
          See also Section 601(a)(1) of the WC Act, 77 P.S. § 1031(a)(1) (acknowledging that, in
certain instances, volunteer firefighters may receive actual payment for their services while still
being considered volunteers).

                                             RCJ-8
within this unique statutory framework and do not create an employment
relationship under Act 111.
      For example, the Findings of Fact reflect, inter alia, that the Borough
reserved the right to establish rules and regulations for the Fire Department, that
the Borough owns the Fire Department building and equipment, that the Borough
was responsible for repayment of a loan that the Fire Department obtained from
PEMA, that the Borough pays for all of the Fire Department’s expenses directly,
that the Fire Department obtains fuel from the Borough garage at no cost, that the
Borough’s budget includes 38 line items for the Fire Department, and that the
Borough established a fire services tax to raise money for the Fire Department.
(FOF ¶¶ 7-12.) The Borough did not file exceptions to these Findings of Fact,
instead arguing that the Board misconstrued their importance. I agree with the
Borough that these findings are not dispositive because the various transactions
described are all expressly allowed under the above-referenced statutes or naturally
follow from the Borough’s statutory rights or obligations thereunder. For instance,
Section 7364(g) of the EMS Code explicitly allows boroughs to own volunteer fire
company equipment and facilities. 35 Pa. C.S. § 7364(g). Section 7364(c) of the
EMS Code expressly authorizes boroughs to cosign for loans made to volunteer
fire departments and, consequently, become responsible for a volunteer fire
company’s loan. 35 Pa. C.S. § 7364(c). Section 1302(6) of the Borough Code
permits boroughs to levy taxes in order to make appropriations to volunteer fire
companies; thus, it naturally follows that a borough would establish a specific fire
services tax to raise money for a fire company. 8 Pa. C.S. § 1302(6).      Further,
because the Borough is statutorily permitted to own the Fire Department’s



                                      RCJ-9
equipment and facilities, it is reasonable for it to fund the Fire Department and to
exercise significant control over the Fire Department’s budget.
      Moreover, the Borough’s obligations and potential liability under the WC
Act for the volunteer firefighters, as described above, provide ample explanation
for many of the Borough’s actions. These actions include: establishing rules and
regulations for the Fire Department; issuing employee personnel policies, such as
the drug and alcohol policy and Non-Union Employees Light Duty Policy, which
the Borough was required to do by its workers’ compensation carrier, (FOF ¶¶ 23-
24; Hr’g Tr. at 151, R.R. at 162a); and controlling the Fire Department’s budget
and staffing, including requiring background checks and having the volunteer
firefighters clock in and out, (FOF ¶¶ 11, 14, 26). Maintaining a drug and alcohol
free workplace and ensuring that the Fire Department is properly staffed with
individuals who pass background checks makes sense in the context of the
Borough’s workers’ compensation obligations. Likewise, because the Borough is
required to pay workers’ compensation for the volunteer firefighters, it is logical
for the Borough to retain some control over the Fire Department’s rules and
regulations in order to minimize injuries to firefighters for which it may be liable.
Consequently, when these Findings of Fact, which were relied upon by the Board
to conclude that the Borough exercised control over the working conditions, are
analyzed within the specific statutory framework applying to voluntary firefighters,
their legal significance under Act 111 is lost.
      Similarly, several other of the Findings of Fact related to the Borough’s
control over firefighter selection and disciplinary matters lose their legal
significance when evaluated in terms of the evidence and the Borough’s statutory
obligations.   Regarding hiring, the Fire Chief initially selects the volunteer


                                       RCJ-10
firefighters, and the Borough Council appoints firefighters to the Fire Department
based on the Fire Chief’s recommendations; however, there is no evidence that the
Borough Council ever rejected one of the Fire Chief’s recommendations. (FOF ¶
20; Board Final Order at 7.) Although the Borough is involved in an aspect of the
selection process, given the Borough’s statutory liability for volunteer firefighters’
workers’ compensation and other volunteer firefighter benefits, the volunteers’ use
of the Borough’s equipment and facilities, and the Borough’s statutory role
regarding the volunteer firefighters’ attendance at the Training School, it is prudent
for the Borough to exercise a modicum of control over the selection of volunteer
firefighters. Moreover, because of the Borough’s statutory responsibility under
Section 1202(56) of the Borough Code to provide firefighting services in a safe
and effective manner within the Borough and to reduce any risk to the public in the
provision of such firefighting services, 8 Pa. C.S. § 1202(56), the Borough has an
obligation to ensure that the volunteer firefighters selected to serve are reliable,
trustworthy, and properly trained to use the Borough’s equipment.
       Further, with respect to the Borough’s control over disciplinary matters, I
disagree with the Majority that there was substantial evidence to support the
finding that the Borough has the final say over disciplinary matters.9 Although the

       9
         The Board found that although the Fire Chief handles disciplinary matters, “the final
say on discipline rests with the Borough” because a firefighter that is unhappy with a disciplinary
action “may appeal the decision to the Borough Manager.” (FOF ¶ 21.) Although when the Fire
Chief terminated one of the volunteer firefighters he sent a letter to the terminated firefighter
informing him that he could contact the Borough Manager with questions, (Borough’s Ex. 37,
R.R. at 557a), there is not substantial evidence in the record that the final say on discipline rests
with the Borough or that disciplined firefighters could appeal to the Borough Manager. The
Board’s finding was based, in part, on the following cross-examination testimony of the Borough
Secretary regarding the termination letter sent by the Fire Chief:
        Q. Okay. Okay. The letter that you were shown, R-37, . . .
        A. Yes.
                                                                                   (Continued…)
                                             RCJ-11
Borough Manager does have the authority to discipline volunteer firefighters who
violate the Borough’s policies, (FOF ¶ 20), the Board’s finding that the Borough
has the final say because a firefighter that is unhappy with the Fire Chief’s decision
can “appeal” to the Borough Manager is based on testimony that I believe is

        Q. . . . the last paragraph, it says if you have any questions, please feel free to
        contact either the Borough manger [sic] or myself.
        A. Yes.
        Q: Why would the Borough manager be included in that letter?
        A. Because I believe if they have a major problem they can go above the
        department head, the fire chief, and go to the Borough.
                 ...
        A. If they don’t’ like that, their final recourse would be going to the Borough to
        find out, you know, why they can’t . . . get a response . . .
        Q. And can the Borough manager overrule the fire chief?
        A. I never have had that problem.
        Q. Well, if he couldn’t, why would he be in this letter?
        A. I guess he would be able to.
(Hr’g Tr. at 325-27, R.R. at 336a-38a.) The Borough Secretary also testified about another
firefighter that was disciplined:
        Q. . . . do you know if [the firefighter] appealed to the Borough manager his
        discipline?
        A. No, I don’t believe he did.
        ...
        Q. Did he have the right to?
        A. I don’t know. I’m not sure. His next step would have been to go back to the
        Fire Board.
        ...
        Q. And if [the firefighter] didn’t like the decision of the Fire Board, he could then
        go to the Borough manager?
        A. I would say yes.
(Hr’g Tr. at 327, R.R. at 338a.)
        When the Borough Secretary was asked whether a firefighter could appeal an adverse
disciplinary decision to the Borough Manager, she stated that she believed that a firefighter who
disagreed with a disciplinary determination could go to the Borough and that, although it did not
ever happen, when pressed for an answer, she guessed that the Borough Manager would be able
to overrule the Fire Chief. Moreover, when asked about whether another firefighter could have
appealed to the Borough Manager, after saying she did not know and was not sure, after being
pressed she finally stated, “I would say yes.” (Hr’g Tr. at 327, R.R. at 338a (emphasis added).)

                                            RCJ-12
inadequate to allow a “reasonable mind [to] accept [it] as adequate to support [that]
conclusion.” Delaware Cnty. Lodge No. 27, Fraternal Order of Police v. Pa. Labor
Relations Bd., 694 A.2d 1142, 1145 n.5 (Pa. Cmwlth. 1997). I would not conclude
that the fact that an unhappy firefighter could “contact” the Borough Manager with
questions is the equivalent of the right to appeal.           Moreover, the Borough
Secretary’s testimony that she “did not know” or “believed” or “guessed” that a
firefighter could “appeal” to the Borough Manager was equivocal10 and, therefore,
does not constitute substantial evidence to support the finding that the Borough had
the final say over disciplinary matters. See Subdivision Servs. Corp. v. Zoning
Hearing Bd. of Charlestown Twp., 784 A.2d 850, 852 (Pa. Cmwlth. 2001) (stating
that “equivocal testimony can[not] be deemed substantial so as to justify the
[factfinder’s] reliance thereon . . . .”); Feinberg v. Unemployment Comp. Bd. of
Review, 635 A.2d 682, 686 (Pa. Cmwlth. 1993) (equating “testimony which is so
uncertain or inadequate” with being “equivocal” and stating that “[w]here
testimony is so inadequate or contradictory[, i.e. equivocal] that . . . findings of fact
based upon it become mere conjecture, it fails to meet the test of substantiality”).
      As argued by the Borough, because it has a statutory obligation to provide
workers’ compensation for the firefighters and is statutorily authorized to own the
Fire Department buildings and equipment, the Borough’s ability to enforce some
of its policies in the Fire Department is not dispositive of the existence of an
employment relationship.        Similarly, the Borough’s obligation to provide
firefighter services to the public in a safe and effective manner means that the


      10
         Equivocal testimony is that which is vague and leaves doubt as to its meaning.
Chadwick v. Workmen’s Comp. Appeal Bd. (Benjamin Franklin Hotel), 573 A.2d 652, 655-56
(Pa. Cmwlth. 1990).

                                        RCJ-13
Borough has a responsibility to ensure that firefighters do not violate Borough
personnel policies related to public safety, such as the drug and alcohol policy.
      Finally, my conclusion that no employment relationship exists in this matter
finds additional support in the recent case of Tyrone Fire Patrol Company No. 1 v.
Tyrone Borough, 92 A.3d 79 (Pa. Cmwlth.), petition for allowance of appeal
denied, 105 A.3d 739 (Pa. 2014), cert. denied, __ U.S. __, 135 S. Ct. 1749 (2015).
In Tyrone Fire Patrol, three members of the Tyrone Fire Police Association were
terminated by the Tyrone Borough Council. Tyrone Fire Patrol, 92 A.3d at 86.
The three Fire Police members filed an action against the borough contending that
the borough had violated their due process rights by removing them without a
notice and a hearing. Id. This Court determined that they would only have a right
to a hearing if they could establish that their dismissal affected “a statutory or
contractual right of continued employment.” Id. at 91. We applied the Sweet test
to determine whether an employment relationship existed, noting that, although
“Fire Police members [were] confirmed by the Borough Council, serve[d] at the
pleasure of the Borough Council, and [could] be removed at any time for any
reason by the Borough Council, the Fire Companies, and not the Borough Council,
[had] the authority to nominate potential Fire Police members.” Id. We further
determined that fire police members could not serve if they were not in good
standing with the fire companies, a determination made solely by the fire
companies and not the borough.         Id.   Thus, we concluded an employment
relationship did not exist between the members and the borough council. Id.
      The facts of the instant case are remarkably similar to Tyrone Fire Patrol.
Like Tyrone Fire Patrol, although the Borough Council here confirms firefighters,
it is the Fire Chief, rather than the Borough, who actually selects the firefighters.


                                       RCJ-14
Moreover, similar to Tyrone Fire Patrol where the Fire Police members had to be
in good standing with their fire companies in order to serve, which was determined
solely by the fire companies, it is the Fire Chief, instead of the Borough, who
exercises most control over disciplinary matters in the instant matter.        Thus,
Tyrone Fire Patrol provides additional support that there is not an employment
relationship between the Borough and firefighters.
      The Majority would find that Tyrone Fire Patrol is inapposite because, it
involved a different legal question and, unlike here, there was no evidence that the
firefighters were paid an hourly wage. While Tyrone Fire Patrol did involve a
different legal question, whether the volunteer firefighters had a contractual or
continued expectation to employment so as to render a decision to remove them an
appealable adjudication, that matter also involved, as here, an inquiry into the
employment relationship between volunteer firefighters and the borough that they
served. Moreover, although Tyrone Fire Patrol states that the individuals were not
paid employees, it does so based on its observation that the borough’s ordinance at
issue authorized the borough to, in its discretion, pay those volunteer firefighters
for their services as members of the fire police. Id. at 92 n.14. I note that, other
than this reference, there is nothing in the recitation of the facts in Tyrone Fire
Patrol that states these individuals were not paid for their services as the borough
was authorized to do under its own ordinance. Finally, it is well-established that
“[t]he duty to pay an employe’s salary is often coincident with the status of
employer, but not solely determinative of that status.” Sweet, 322 A.2d at 365
(emphasis added). Further, several of the statutes involving volunteer firefighters
discussed infra plainly allow volunteer firefighters to receive compensation and
benefits without losing their volunteer status. Thus, it is consistent with precedent


                                      RCJ-15
and the established statutory framework to conclude that payment of an hourly
wage by the Borough to the volunteer firefighters, in and of itself, is not dispositive
of an employment relationship.
       For these reasons, I respectfully dissent from the Majority and would hold
that the Board erred in concluding that an employment relationship exists between
the Borough and the volunteer firefighters.11



                                                     ________________________________
                                                     RENÉE COHN JUBELIRER, Judge



Judges Simpson and Covey join in this dissenting opinion.

       11
          In response to footnote 9 of the Majority opinion, the Dissent is not suggesting that Act
111 is incompatible or in conflict with the statutory scheme regarding volunteer firefighters and,
therefore, is repealed as to volunteer firefighters. Rather, given the numerous statutes enacted to
allow municipalities to provide aid and assistance, such as financial assistance, pension and
workers’ compensation benefits, equipment, and training, to the volunteer firefighters that serve
that community, volunteer firefighters occupy a unique area in the context of traditional
employment relationships. Thus, when determining whether an employment relationship under
Act 111 exists in volunteer firefighter cases, by using, for example, the test set forth in Sweet,
the Dissent simply would require the facts to be analyzed in light of this vast statutory
framework to determine whether they signify a true employment relationship for the purposes of
Act 111. Facts that might suggest an employment relationship in other employment situations
may not necessarily (and here do not) signify the intent to create such relationship between the
volunteer firefighters and the municipality they serve, but could be the result of the municipality
providing the assistance and aid permitted by these various laws. In other words, there has to be
a determination whether the municipality’s actions intended to create an employment
relationship or were simply intended to provide aid and assistance as approved by the statutory
framework. Moreover, the Majority reiterates its position that the Borough exercises control
over, inter alia, the discipline and discharge of the volunteer firefighters resulting in the merger
of the municipality and the volunteer fire department for the purposes of Act 111 and
employment law. However, as discussed, the Dissent would conclude that these findings are not
supported by substantial evidence, but are based on testimony that is equivocal.

                                             RCJ-16
