           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Pittsburgh,                           :
                            Appellant         :
                                              :
                      v.                      :   No. 1228 C.D. 2014
                                              :   Argued: April 15, 2015
Fraternal Order of Police, Fort Pitt          :
Lodge No. 1                                   :



BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge2
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge




OPINION BY
JUDGE LEADBETTER                                  FILED: January 7, 2016


              The City of Pittsburgh appeals from the order of the Court of
Common Pleas of Allegheny County that affirmed a Supplemental Interest
Arbitration Award (the Supplemental Award). That award modified the parties’
Collective Bargaining Agreement (CBA) by inserting a non-residency clause. We
reverse.



    1
      This case was assigned to the opinion writer before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
    2
      This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
              The Fraternal Order of Police, Fort Pitt Lodge No. 1 (FOP) and the
City were parties to a CBA covering the term January 1, 2010, through December
31, 2014. Section 18(S) of that CBA provided:

              [I]f the Pennsylvania State Legislature enacts
              legislation relating to ... the issue of residency
              requirements for police officers in cities of the second
              class, the parties may reopen the contract to negotiate
              and/or arbitrate under these limited conditions.

Reproduced Record (R.R) at 576a. It further provided that the arbitration panel
retained jurisdiction to address that issue if the parties could not reach agreement.
Id.
              The Policemen’s Civil Service Act (for Cities of the Second Class)
(Civil Service Act)3 provides civil service mandates that apply specifically to the
City. Prior to October 24, 2012, Section 3 of the Civil Service Act provided that:

              [a] person applying for appointment shall not be
              required to be a resident of the city at the time of
              application for original appointment. The person shall,
              however, be required to become a bona fide resident of
              the city at the time of employment, and city residency
              must be maintained for the entire period of
              employment.

53 P.S. § 23532. However, on October 24, 2012, Act 195 of 2012 (Act 195),4
which amended Section 3 of the Civil Service Act, became effective. Section 3
now provides “[a] city of the second class may require a police officer to become a
bona fide resident of the city as a condition of employment.” (Emphasis added.)

      3
      Sections 1 through 10 of the Act of August 10, 1951, P.L. 1189, as amended, 53 P.S. §§
23531-23540.
    4
      Act of October 24, 2012, P.L. 147.



                                             2
Accordingly, where the Civil Service Act once mandated that a person appointed
as a police officer “shall” become a city resident at the time of employment and
remain so for the entire period of employment, the General Assembly altered that
mandate with the passage of Act 195.
             Following the amendment of Section 3, the FOP asserted the right to
re-open negotiations pursuant to Section 18(S) of the CBA. The FOP sought to
negotiate a non-residency clause contrary to the City’s long-standing requirement
for all employees to live within the City’s borders. The FOP and the City were
unable to reach an agreement and pursued interest arbitration upon impasse. In
June and September of 2013, the interest arbitration panel was re-convened. The
City objected to the panel’s jurisdiction, arguing that applicable, extant law does
not authorize an interest arbitration panel to consider the police union’s demand for
non-residency.
             On July 23, 2013, the Pittsburgh City Council passed a resolution to
place a referendum question on the November 5, 2013 general election ballot,
asking voters whether the City’s Home Rule Charter should be amended to require
police officers to remain residents of the city. The voters approved the in-city
residence requirement.
             On March 14, 2014, a majority of the interest arbitration panel
rejected the City’s challenge to its jurisdiction. The panel issued the Supplemental
Award, modifying the city-only residency requirement to a mileage-based
restriction requiring residency within 25 air miles of the City-County Building.
             On, March 18, 2014, the City filed a petition for review in the court of
common pleas, asserting that the panel acted without jurisdiction and exceeded its
authority. Common pleas concluded that Act 195 permitted bargaining over



                                         3
residency as a term and condition of employment. Common pleas also concluded
that Act 195 empowered the arbitration panel to address residency. Common pleas
rejected the City’s argument that the General Assembly did not intend for Act 195
to permit unions to bargain over residency, reasoning that statutory construction
principles assume that the General Assembly, when amending a statute, is
cognizant of the applicable statutory and judicial authorities. Thus, the General
Assembly was aware of case law holding that residency was subject to bargaining
unless otherwise preempted or barred by statute. Common pleas also concluded
that the award did not compel the City to perform an illegal act because the City’s
Home Rule Charter provision requiring city residency of all city employees cannot
supersede rights guaranteed by the Police and Firemen Collective Bargaining Act
(Act 111), 43 P.S. §§ 217.1 – 217.10.5 This appeal followed.
               Appellate review of an Act 111 interest arbitration award is in the
nature of narrow certiorari. Section 7 of Act 111, 43 P.S. § 217.7. It is limited to
issues regarding: (1) the jurisdiction of the arbitrator; (2) the regularity of the
proceedings; (3) whether the arbitrator exceeded his powers; and (4) deprivation of
constitutional rights. Michael G. Lutz Lodge No. 5 v. City of Phila., 84 A.3d 343,
350 (Pa. Cmwlth. 2014). A panel of arbitrators: 1) may not order the employer to
perform an illegal act; 2) is limited to requiring that a public employer do that
which it could do voluntarily; and 3) must craft an award that encompasses only
the terms and conditions of employment. Butler v. Butler Police Dep’t, Fraternal
Order of Police, Lodge No. 32, 780 A.2d 847, 850 (Pa. Cmwlth. 2001). An error
of law alone is not sufficient to reverse an award under this narrow scope of
review. Id.

   5
       Act of June 24, 1968, P.L. 237.



                                         4
             The City argues that the Supplemental Award exceeds the authority of
the arbitration panel because Act 195 changed residency from a prohibited subject
of bargaining to a specific managerial prerogative, thus preempting Act 111.
Specifically, the City asserts that because the General Assembly was aware that
residency is subject to mandatory bargaining unless otherwise preempted by
statute, it intended to give the City the authority to determine whether a resident
police force was necessary through enactment of Act 195. The City also contends
that the Supplemental Award unduly infringes on its inherent managerial
responsibilities involving considerations about where all its employees, not just
police officers, should reside.
             Article IX, Section 2 of the Pennsylvania Constitution provides, in
relevant part:

             Municipalities shall have the right and power to frame
             and adopt home rule charters. ... A municipality which
             has a home rule charter may exercise any power or
             perform any function not denied by this Constitution, by
             its home rule charter or by the General Assembly at any
             time.
Pa. Const. art. 9, §2.
             When the General Assembly implemented this constitutional
provision in the Home Rule Charter and Optional Plans Law (Home Rule Charter
Law), 53 Pa. C.S. §§ 2901-2984, it gave home rule charter communities the
broadest powers, specifically imposing the presumption that those communities
had the power to undertake any action that they desired, and that such action
should be upheld unless it was specifically denied by either the Constitution, a
statute or the home rule charter itself. Section 2961 the Home Rule Charter Law
provides:


                                        5
              A municipality which has adopted a home rule charter
              may exercise any powers and perform any function not
              denied by the Constitution of Pennsylvania, by statute or
              by its home rule charter. All grants of municipal power
              to municipalities governed by a home rule charter under
              this subchapter, whether in the form of specific
              enumeration or general terms, shall be liberally construed
              in favor of the municipality.
53 Pa. C.S. § 2961. However, Section 2962(c) of the Home Rule Charter Law, 53
Pa. C.S. § 2962(c), provides that a municipality shall not “[e]xercise powers
contrary to, or in limitation or enlargement of, powers granted by statutes which
are applicable in every part of this Commonwealth.”
              What is embodied in the concept of home rule is that the citizens of
the local democracy – municipality or county – shall be free to determine local
concerns.     Of course, if there is an overriding statewide policy involved, the
General Assembly can pass legislation that supersedes such home rule
municipalities’ power. In a case where a home rule charter is in direct conflict with
a provision of a statute of statewide application, the state statute controls. Wecht v.
Roddey, 815 A.2d 1146, 1151 (Pa. Cmwlth. 2002), appeal denied, 827 A.2d 432
(Pa. 2003).
              A home rule charter is adopted and amended by referendum. Sections
2926 and 2943 of the Home Rule Charter Law, 53 Pa. C.S. §§ 2926, 2943. A
home rule charter is the equivalent of a constitution – it is the compact by which
local citizens set forth the terms and conditions by which they consent to be
governed. Importantly, provisions of a home rule charter have the force and status
of an enactment of the legislature. Spencer v. City of Reading Charter Bd., 97
A.3d 834, 840 (Pa. Cmwlth. 2014).
              In accordance with the Home Rule Charter Law, the citizens of the
City, by referendum, voted for the adoption of Section 711 of the City’s Home

                                          6
Rule Charter that specifically requires all city employees, including police officers,
be domiciled in the City. It provides:

               All City employees and officials, including Police and
               Fire Bureau personnel, shall be domiciled in the City at
               the time of their initial appointment and shall
               continuously maintain their domicile within the City
               throughout their terms of employment with the City.

City of Pittsburgh Home Rule Charter, Article 7, § 711. There is no statewide law
prohibiting the home rule charter from requiring its employees to reside within the
employer’s borders. In fact, and to the contrary, Section 3 of the Civil Service Act
provides, in relevant part, that “[a] city of the second class may require a police
officer to become a bona fide resident of the city as a condition of employment….
A city of the second class may require a reinstated police officer to meet the same
residency requirement as all other police officers.” 6
               Generally, municipal police officers are permitted to negotiate the
terms and conditions of their employment. Section 1 of Act 111, 43 P.S. § 217.1,
provides for the arbitration of disputes between a public employer and its public
employees stating, in relevant part:

               Policemen … employed by a political subdivision …
               shall, through labor organizations … have the right to

    6
       As noted above, Article 9, Section 2 of the Pennsylvania Constitution states, in relevant
part, that “[a] municipality which has a home rule charter may exercise any power or perform
any function not denied by this Constitution, by its home rule charter or by the General
Assembly at any time.” Pa. Const. art. 9, §2. “In general, the adoption of a home rule charter
acts to remove a municipality from the operation of the code provisions enumerating the powers
of that particular class of municipality. Thus, in the absence of explicit constraint or collateral
effect on another municipality, there will be no conflict between the home rule municipality’s
actions and the former code provisions, since the latter no longer apply.” Wecht, 815 A.2d at
1152 (citation omitted).



                                                7
            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.
            Under this provision, representatives of the public employer are
allowed to negotiate and an arbitrator is allowed to impose generally anything
regarding the non-managerial terms and conditions of a police officer’s
employment unless it is removed from discussion or award by other laws. For
example, notwithstanding the fact that they implicate the terms and conditions of
employment, a public employer cannot agree to, and an arbitrator cannot award: a
contract provision eliminating the requirement that police officers complete the
Municipal Police Officers’ Education and Training Program as required by Section
2164 of the statute commonly referred to as the Municipal Police Education and
Training Act, 53 Pa. C.S. § 2164, a provision eliminating the forfeiture of a
pension for officers convicted of an enumerated crime under Section 3 of the
Public Employee Pension Forfeiture Act, Act of July 8, 1978, P.L. 752, No. 140,
as amended, 43 P.S. §1313 or, in the case of the state police, a provision affecting
an officer’s pension under Section 5955 of the State Employees’ Retirement Code,
71 Pa. C.S. § 5955. In summary, an arbitration panel can award only that which
the public employer, in the case, the City, its Mayor and its Council, have the
power to agree to and nothing more.
            As indicated above, the residency requirement for employment with
the City was imposed by the City electorate’s adoption of it in its Home Rule
Charter, which has the force and status of an enactment of the General Assembly.
This took away the ability of the City’s officials to voluntarily bargain away the


                                         8
residency requirement. Thus, the arbitrators’ award in this case would require the
City to commit an illegal act by violating its Home Rule Charter. In other words,
absent statewide legislation prohibiting a municipality from imposing a residency
requirement for its employees, the adoption of an amendment to a home rule
charter requiring such residency by the electorate removes an arbitration panel’s
authority to issue an award that contravenes such a charter provision.
                  In reaching this conclusion, we must partially overrule our opinion in
City of Wilkes-Barre v. City of Wilkes-Barre Police Benevolent Association, 814
A.2d 285 (Pa. Cmwlth. 2002).7 In that case, the Court addressed whether an
arbitration panel could properly issue a decision that did not require in-city
residence when Section 8:02 of the City of Wilkes-Barre Home Rule Charter
required all city employees to reside in Wilkes-Barre.
                  The Court noted that neither the home rule charter, nor an enactment
by a home rule municipality, may contain provisions contrary to a statewide statute
and Act 111 was such a statute.8 Thus, the Court concluded:
                  Act 111 provides policemen employed by a political
                  subdivision the power to bargain with their public
                  employers concerning the terms and conditions of their
                  employment. See Section 1 of Act 111, 43 P.S. §
                  217.1. … When Act 111 applies, neither a home rule
                  charter, nor an enactment by a home rule municipality
                  may change the ability to bargain about residency.
Id.



      7
          We do not overrule the portions of Wilkes-Barre that address pension rights or health care
plans.
      8
       Section 9 of Act 111, 43 P.S. § 217.9, provides that Act 111 shall be applicable to every
political subdivision notwithstanding the fact that any such political subdivision has adopted a
home rule charter.



                                                  9
             However, the Wilkes-Barre court did not take into account that a
home rule charter has the force and effect of a state statute. Section 1 of Act 111
provides only that police officers have the right to bargain collectively regarding
the “terms and conditions” of their employment, including specifically identified
issues such as wages, retirement and pensions. 43 P.S. § 217.1. Act 111 does not
specifically identify residency as a term or condition of employment; rather
judicial interpretation has construed it to be so. Township of Moon v. Police
Officers of the Twp. of Moon, 498 A.2d 1305, 1313 (Pa. 1985). Nonetheless, when
state law imposed a specific residency requirement before the Civil Service Act
was amended, that law unquestionably superseded the general Act 111 requirement
of bargaining over terms and conditions of employment. Similarly, because the
Pittsburgh Home Rule Charter, which has the force of a state statute, imposes a
residency requirement, it also prevails.
             For all of the foregoing reasons, we reverse.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge


Judge McCullough did not participate in the decision in this case.




                                           10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Pittsburgh,                       :
                           Appellant      :
                                          :
                      v.                  :     No. 1228 C.D. 2014
                                          :
Fraternal Order of Police, Fort Pitt      :
Lodge No. 1                               :


                                       ORDER


             AND NOW, this 7th day of January, 2016, the order of the Court of
Common Pleas of Allegheny County is hereby REVERSED.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh,                             :
                              Appellant         :
                                                :
               v.                               :    No. 1228 C.D. 2014
                                                :    Argued: April 15, 2015
Fraternal Order of Police,                      :
Fort Pitt Lodge No. 1                           :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge

DISSENTING OPINION
BY JUDGE SIMPSON                                FILED: January 7, 2016

               What happens when a provision of a municipality’s home rule charter
is inconsistent with a state statute of general application? The Majority holds that
the home rule charter provision can prevail if it is more specific than the provision
of the state statute. I respectfully disagree.


                                                1.
               Here, according to the Majority, the inconsistency involves whether
police officers of the City of Pittsburgh (City) may bargain a requirement of
residency in the City. On the one hand, Section 1 of the Policemen and Firemen
Collective Bargaining Act (Act 111)1 guarantees “[p]olicemen … the right to


      1
          Act of June 24, 1968, P.L. 237, 43 P.S. §217.1.
bargain collectively with their public employers concerning the terms and
conditions of their employment ….” It is beyond question that Act 111 is a state
statute of general application. Section 9 of Act 111, 43 P.S. §217.9. Our Supreme
Court has held that under Act 111 residency is a bargainable condition of
employment. Twp. of Moon v. Police Officers of Twp. of Moon, 498 A.2d 1305
(Pa. 1985).


              On the other hand, during a contract impasse and ensuing arbitration
between the City and its police union, Fraternal Order of Police, Fort Pitt Lodge
No. 1 (FOP), Pittsburgh City Council ordered a referendum. Pursuant to the
referendum the voters amended the City’s Home Rule Charter to require that all
City employees, including police officers, maintain a domicile in the City. In
effect, the new Home Rule Charter provision withdraws from the City the authority
to bargain with its employees about residency.         In such a circumstance, an
arbitrator under Act 111 cannot award police officers relief from the residency
requirement, because the City could not agree to the relief voluntarily.


              In sum, the inconsistency in this case, as framed by the Majority, is
between the Act 111 guarantee for police officers to bargain with the City about
residency, and the new provision of the City’s Home Rule Charter which precludes
the City from bargaining about residency.




                                      RES - 2
                                         2.
               This inconsistency should be easy to resolve. This is because the
Home Rule Charter and Optional Plans Law (Home Rule Charter Law)2 limits
home rule authority, like that exercised here. Specifically, Section 2962(c)(2)
provides that a municipality shall not “[e]xercise powers contrary to, or in
limitation or enlargement of, powers granted by statutes which are applicable in
every part of this Commonwealth.” 53 Pa. C.S. §2962(c)(2). Further, Section
2962(e) of the Home Rule Charter Law, 53 Pa. C.S. §2962(e), provides, with
emphasis added:

               (e) Statutes of general application.--Statutes that are
               uniform and applicable in every part of this
               Commonwealth shall remain in effect and shall not be
               changed or modified by this subpart. Statutes shall
               supersede any municipal ordinance or resolution on the
               same subject.

Given these express limitations in the Home Rule Charter Law, it seems obvious
that in the event of a conflict between a statute of general application, such as Act
111, and a home rule charter provision, the state statute prevails. In this context,
the Act 111 guarantee of police officers’ ability to bargain over residency prevails
over the Home Rule Charter requirement of residency.


               Indeed, this Court has already made that ruling. In City of Wilkes-
Barre v. City of Wilkes-Barre Police Benevolent Ass’n, 814 A.2d 285, 290 (Pa.
Cmwlth. 2002), we held that under Act 111 residency is a condition of
employment and not a managerial prerogative. We also held that the General

      2
          53 Pa. C.S. §§2901-3171.



                                      RES - 3
Assembly intended Act 111 to apply despite the existence of a home rule charter.
Id. at 290. Neither the home rule charter, nor an enactment of a home rule
municipality may contain provisions contrary to or in limitation or enlargement of
powers established by Act 111. Id. Act 111 provides police officers employed by
a political subdivision the power to bargain with their public employers concerning
the terms and conditions of their employment. Id. When Act 111 applies, neither
a home rule charter nor an enactment by a home rule municipality may change the
ability to bargain about residency.       Id.     The failure to include a residency
requirement in an arbitration award, contrary to a provision in a home rule charter,
did not force the city to perform an illegal act. Id.


             Thus, under the express terms of the Home Rule Charter Law, and
under a prior holding of this Court, the Act 111 guarantee of police officers’ rights
to bargain about residency prevails over an inconsistent home rule charter
provision.


             Further, I would reach the same result even without this Court’s prior
holding in City of Wilkes-Barre. Usually, when there is a conflict between a state
statute and a municipal enactment, we apply principles of preemption to resolve
the controversy.      Based on the express limitations placed on home rule
municipalities by the Home Rule Charter Law, as discussed above, and applying
the principle of express preemption, I conclude that the General Assembly
intended state statutes of general application to supersede inconsistent home rule
municipality enactments. Unfortunately, the Majority does not consider principles
of preemption.



                                        RES - 4
                                                3.
               How does the Majority deal with these clear statements of law? The
Majority determines that “a home rule charter has the force and effect of a state
statute,” and an inconsistency between state statutes should be resolved by resort to
rules of statutory construction. Maj. Slip Op., at 9-10 (emphasis added).3 The
Majority cites Spencer v. City of Reading Charter Board, 97 A.3d 834 (Pa.
Cmwlth. 2014) for this remarkable proposition. Maj. Slip Op., at 6. However, the
Majority errs in several ways.


               First and foremost, Spencer does not support the Majority’s claim.
What the Court in Spencer actually said was that “[a] home rule charter has the
force and status of an enactment of the legislature.” 97 A.3d at 840. Significantly,
the word “state” does not appear in the quote; rather, it was added by the Majority.
What the Court was trying to convey in Spencer was that a home rule charter
provision has the force and effect of an enactment of the municipality’s legislative
body, not that a home rule charter provision is the equivalent of a state statute.


               Moreover, Spencer dealt with standing of a board created by the
municipality’s home rule charter to challenge a trial court’s decision. Spencer did
not deal with a conflict between a state statute and a home rule charter provision.
Further, the Spencer Court did not proclaim that state statutes of general
application stand on equal footing with home rule charter provisions, nor did the
Spencer Court resort to statutory construction to resolve inconsistencies. The

       3
          It is noteworthy that the parties do not make this argument. Instead, the Majority raises
this legal theory on its own, and we lack the parties’ analysis of this theory.



                                            RES - 5
Spencer Court could not do so in light of the express limitations placed on home
rule municipalities by the Home Rule Charter Law, discussed above.


                Second, even if we were to treat a state statute and a home rule charter
provision as on equal footing, the Majority ignores the analytical process our
Supreme Court uses to determine which entity the “legislature” intended to have
preeminent powers over a given area of regulation. This process was originally set
forth in Department of General Services v. Ogontz Areas Neighbors Ass’n, 483
A.2d 448 (Pa. 1984), and the process was recently applied again by the Court in
Southeastern Pennsylvania Transportation Authority v. City of Philadelphia, 101
A.3d 79 (Pa. 2014). “The first step requires the reviewing court to determine,
through the examination of the statutes, which governmental entity, if any, the
General Assembly expressly intended to be preeminent.”                    Southeastern
Pennsylvania Transportation Authority, 101 A.3d at 87. Based on the express
limitations placed on home rule municipalities by the Home Rule Charter Law,
discussed above, I conclude the General Assembly intended that its enactments of
state-wide application should be preeminent over inconsistent enactments of a
home rule municipality.


                                            4.
                Finally, from a policy perspective, the prospect of a home rule
municipality using an amendment of the home rule charter to gain an advantage in
ongoing collective bargaining is troublesome. The Majority utterly fails to address
this concern.




                                         RES - 6
                                          5.
             For all these reasons, I would hold that City police officers have the
right under Act 111 to bargain for the terms of their employment, including
residency, despite any contrary provision in the City’s Home Rule Charter. I
would also hold that the arbitrators had the authority to enter an award regarding
residency. Accordingly, I would affirm the respected trial court, which declined
the City’s invitation to vacate the arbitration award.




                                 ROBERT SIMPSON, Judge



Judges Brobson and Covey join in this dissent.




                                       RES - 7
