          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Gettysburg                    :
                                         :
                   v.                    :   No. 1768 C.D. 2013
                                         :   Argued: June 16, 2014
Teamsters Local No. 776                  :
                                         :
Appeal of: International Brotherhood     :
of Teamsters, Local 776                  :


BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MARY HANNAH LEAVITT, Judge


OPINION BY
JUDGE LEADBETTER                             FILED: October 29, 2014


            The International Brotherhood of Teamsters, Local No. 776 (Union)
appeals from the order of the Court of Common Pleas of Adams County (trial
court) that granted the petition filed by the Borough of Gettysburg (Borough)
seeking to partially vacate the interest arbitration award to the extent that it
increased wages of the Borough police officers for the fiscal year 2011. The Union
challenges the trial court's conclusion that the arbitration panel did not have
jurisdiction to render such award under the Act of June 24, 1968, P.L. 237,
commonly known as Act 111, 43 P.S. §§ 217.1 - 217.10. We affirm.
            The record reveals the following relevant facts. The collective
bargaining agreement (CBA) between the Borough and the Gettysburg Police
Officers Association (Association), the former collective bargaining representative
of the Borough police officers, was scheduled to expire on December 31, 2009. In
July 2009, the Borough and the Association began negotiating terms of a new
CBA. The Union was subsequently elected as the Borough police officers' new
collective bargaining representative and certified by the Pennsylvania Labor
Relations Board in February 2010.
               On June 14, 2010, the Union's business agent, Mark Andreozzi, sent
the Borough's counsel, Gretchen K. Love, Esquire, a letter inviting the Borough to
begin collective bargaining for a new CBA. He enclosed a proposed CBA with the
letter. Fifteen days later on June 29, the Union's counsel, Ira H. Weinstock,
Esquire, asked the American Arbitration Association (AAA) to send him and
Attorney Love a list of three arbitrators for an interest arbitration.1 Reproduced
Record (R.R.) at 200a. In September, Andreozzi, Attorney Love and the Borough
manager, Florence Ford, met for collective bargaining.                         Attorney Love
subsequently received a list of three arbitrators from the AAA. She then sent
Attorney Weinstock letters on November 18 and December 29, 2010, stating that
the Borough would not participate in selecting a panel of arbitrators because the
Union failed to follow the required time frame in Act 111 in obtaining the list of
arbitrators and that the Borough was willing to continue to bargain in good faith, as
required by Section 2 of Act 111, 43 P.S. § 217.2.2 R.R. at 202a, 204a and 205a.
               In a memo sent to the Union on June 8, 2011, the Borough manager,


    1
       An interest arbitration occurs when an employer and its employees are unable to agree on
terms of a CBA. City of Phila. v. Int'l Ass'n of Firefighters, Local 22, 999 A.2d 555, 558 n.2 (Pa.
2010). A grievance arbitration, on the other hand, occurs when the parties disagree on
interpretation of an existing CBA. Id. An interest arbitration is an extension of collective
bargaining process. City of Butler v. City of Butler Police Dep't, Fraternal Order of Police,
Lodge #32, 780 A.2d 847, 849 n.3 (Pa. Cmwlth. 2001).
     2
       Section 2 of Act 111 provides that "[i]t shall be the duty of public employers and their
policemen and firemen employes to exert every reasonable effort to settle all disputes by
engaging in collective bargaining in good faith and by entering into settlements by way of
written agreements and maintaining the same."



                                                2
Ford, proposed wage increases of 3% for 2011, 2% for 2012 and 2.5% for 2013 for
the police officers, and their 10% pre-tax contribution towards health insurance.
Union's Exhibit No. 2; R.R. at 349a. The Union rejected Ford's proposal. The
Union's agent, Andreozzi, then sent Ford a letter on June 8, 2011, stating that the
parties' good-faith negotiations resulted in a tentative agreement, except
compensation, insurance, clothing and equipment, pension, and the term of an
agreement. Union's Exhibit No. 4; R.R. at 535a. He further stated that the parties
had agreed that "the next natural and logical step in pursuing a final remedy [was]
to use the existing list of Arbitrators." Id. Attorney Love responded that the
Borough was willing to participate in an interest arbitration utilizing the arbitration
panel obtained in November 2010, but that the Borough "reserve[d] its right to
raise any and all procedural deficiencies as part of this process." Attorney Love's
June 16, 2011 Letter (Borough's Exhibit No. 2); R.R. at 346a. After Attorney Love
(the arbitrator for the Borough) and Attorney Weinstock (the arbitrator for the
Union) each eliminated one name from the list of arbitrators, Robert Gifford
became the third arbitrator and the arbitration panel's chairperson.3
               After an arbitration hearing held on August 17, 2011, Arbitrator
Gifford issued an arbitration award covering the period from January 1, 2011
through December 31, 2013. The award included 4% wage increases for 2011 and

    3
       An arbitration panel is composed of three arbitrators: one appointed by the public
employer, one appointed by the union, and one agreed upon by the public employer and the
union. Section 4(b) of Act 111, 43 P.S. § 217.4(b). If a third arbitrator has not been appointed
after 10 days from the appointment of the two arbitrators by the public employer and the union,
then either arbitrator may request the AAA to furnish a list of three arbitrators. Id. The
arbitrator appointed by the public employer first eliminates one name from the list. Id. The
arbitrator appointed by the union eliminates another name from the list. The individual
remaining on the list will be the third arbitrator and act as chairperson of the arbitration panel.
Id.



                                                3
2012, 3.99% wage increases for 2013, and improved benefits. Attorney Weinstock
concurred in the award. Attorney Love dissented, stating that the majority panel
did not decide the procedural issue raised by the Borough and that the arbitration
panel lacked jurisdiction to award wage increases for the fiscal year 2011 due to
the Union's noncompliance with the procedural requirements of Act 111. In the
concurring opinion, Attorney Weinstock stated that the evidence indicated that "the
procedural issue raised by the Borough of Gettysburg was waived by the parties in
negotiations and was not pursued by the Borough." R.R. at 30a. The arbitration
panel retained jurisdiction until the parties' ratification and execution of the new
CBA.
             The Borough filed a petition to partially vacate the interest arbitration
award to the extent that it granted the police officers 4% wage increases and step
movements for 2011.       The Borough alleged that the arbitration panel lacked
jurisdiction to render such award due to the Union's failure to comply with the
requirements of Act 111 for requesting an arbitration. The Borough noted that the
Union never declared an impasse in the bargaining and never served written notice
of arbitration containing specifications of the issues upon the Borough Council
president. The Union filed an answer, alleging that the Borough waived the issue.
             Under Section 3 of Act 111, 43 P.S. § 217.3, collective bargaining
between a public employer and its police officers or firefighters must begin "at
least six months before the start of the fiscal year of the [public employer]." The
Borough's fiscal year 2011 began on January 1, 2011. Section 4(a) of Act 111, 43
P.S. § 217.4(a), further provides:
                    If in any case of a dispute between a public
             employer and its policemen or firemen employes the
             collective bargaining process reaches an impasse and
             stalemate, or if the appropriate lawmaking body does not


                                          4
             approve the agreement reached by collective bargaining,
             with the result that said employers and employes are
             unable to effect a settlement, then either party to the
             dispute, after written notice to the other party containing
             specifications of the issue or issues in dispute, may
             request the appointment of a board of arbitration.
             [Emphasis added.]
An impasse or stalemate is deemed to occur in the collective bargaining process "if
the parties do not reach a settlement of the issue or issues in dispute by way of a
written agreement within thirty days after collective bargaining proceedings have
been initiated." Id. A request for arbitration must be made at least 110 days before
the start of the fiscal year. Section 3 of Act 111. In addition, the police officers
and firefighters must serve written notice of arbitration containing specifications of
issues in dispute "upon the head of the governing body of the local governmental
unit involved." Section 5 of Act 111, 43 P.S. § 217.5.
             The trial court remanded the matter to Arbitrator Gifford, directing
him to amend the award to address whether the Borough raised the jurisdiction
issue, whether the Union argued that the Borough waived the issue, any evidence
presented by the parties to support their positions, and his decision on the issues.
On remand, Arbitrator Gifford sent the trial court a letter, stating that the Borough
raised the jurisdiction issue and that the Union claimed that the Borough waived
the issue. He further stated that he was not permitted to discuss the arbitration
panel's deliberations during the executive sessions. As to the evidence presented
by the parties and the arbitration panel's decision on the issues, he referred the trial
court "to the Award that includes dissenting and concurring opinions." R.R. at
348a.
             Because Arbitrator Gifford refused to clarify the record, the trial court
held hearings to allow the parties to present the evidence presented at the


                                           5
arbitration hearing and to determine whether such evidence, if believed, would
support the arbitration panel's jurisdiction to award wage increases for 2011. The
Borough presented the testimony of Attorney Love and Ford, an arbitration packet,
and Attorney Love's June 16, 2011 letter reserving the Borough's right to raise
procedural deficiencies. The Union presented the testimony of Andreozzi and two
Union shop stewards, an arbitration presentation binder, and Ford's June 8, 2011
memo proposing terms of a new CBA.
             The trial court concluded that the arbitration panel did not have
jurisdiction to address contract terms for 2011 due to the Union's failure to comply
with the mandatory requirements of Act 111 for requesting an arbitration and that
the Borough's attempts to negotiate a new CBA in good faith does not constitute a
waiver of its procedural objection. The court found that the Union failed to serve
written notice of arbitration containing specifications of issues in dispute upon the
Borough Council president. The court further found that Andreozzi's June 8, 2011
letter, stating the parties' agreement to use the list of arbitrators obtained in
November 2010 to resolve the remaining issues, even if considered to be proper
written arbitration notice, was untimely for the fiscal year 2011 because it was
dated 159 days after the beginning of the fiscal year 2011. The court accordingly
granted the Borough's petition and vacated the arbitration award to the extent of
granting wage increases for 2011. The Union's appeal to this Court followed.
             The Union argues that the Borough waived its objection to the Union's
noncompliance with Act 111's requirements, relying on Ford's June 8, 2011 letter
proposing terms of a new CBA. The Union asserts that the arbitration panel was
aware of the Borough's objection to its jurisdiction and the Union's waiver claim
and that "the only logical conclusion" to be drawn from the arbitration award is



                                         6
that the majority of the arbitration panel rejected the Borough's objection to its
jurisdiction. Union's Brief at 19. The Union further argues that if the arbitration
panel did not decide the issues, the court should have remanded to the arbitration
panel which retained jurisdiction until the parties' ratification and execution of the
new CBA. Finally, the Union claims that Act 111 prohibits the Borough from
appealing the arbitration award.
              The legislature enacted Act 111 to make the rights of a public
employer and its police officers and firefighters more equitable by denying the
police officers and firefighters the right to strike but granting them the right to
collectively bargain terms and conditions of employment. Section 1 of Act 111, 43
P.S. § 217.1; Town of McCandless v. McCandless Police Officers Ass'n, 901 A.2d
991, 997 (Pa. 2006). Section 7(a) of Act 111, 43 P.S. § 217.7(a), provides that the
determination of the majority of the arbitration panel "shall be final on the issue or
issues in dispute and shall be binding upon the public employer and the policemen
or firemen involved" and that "[n]o appeal therefrom shall be allowed to any
court." An arbitration award is nonetheless subject to the court's narrow certiorari
scope of review. City of Phila. v. Int'l Ass'n of Firefighters, Local 22, 999 A.2d
555, 563 (Pa. 2010). Under such review, the court may inquire into only (1) the
arbitrator's jurisdiction, (2) the regularity of the proceedings, (3) an excess of the
arbitrator's powers, and (4) deprivation of constitutional rights. City of Pittsburgh
v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 938 A.2d 225, 229 (Pa. 2007).4
Such limited review of arbitration awards "embodies a balancing of the legislative


    4
       Unlike the "narrow" certiorari review, the "broad" certiorari review permits review of the
entire arbitration panel's record, including testimony and evidence. Town of McCandless, 901
A.2d at 995 n.8.



                                               7
policy objective of shielding arbitration awards from judicial modification, with
the residual need to avoid giving arbitrators unlimited powers." Dep't of Corr. v.
Pa. State Corr. Officers Ass'n, 12 A.3d 346, 355 (Pa. 2011).
             A preliminary determination of whether the issue involved implicates
one of the four areas encompassed by narrow certiorari is subject to the court's
non-deferential, plenary standard of review, unless that determination itself
depends, to some extent, upon arbitral fact-finding or a construction of the relevant
CBA. Town of McCandless, 901 A.2d at 1000; City of York v. Int'l Ass'n of
Firefighters, Local Union No. 627, 35 A.3d 822, 825 (Pa. Cmwlth. 2011).
             Subject matter jurisdiction is "a prerequisite to the exercise of the
power to decide a controversy." Pickford v. Pub. Util. Comm'n, 4 A.3d 707, 713
(Pa. Cmwlth. 2010).      The inquiry posed by the jurisdiction prong of narrow
certiorari is whether an arbitration panel "act[ed] in that general class of
controversies that the law empowers it to consider." Int'l Ass'n of Firefighters,
Local 22, 999 A.2d at 564 [citing Dauphin Deposit Trust Co. v. Myers, 130 A.2d
686, 694 (Pa. 1957)]. To determine whether an arbitration panel had subject
matter jurisdiction to render an award, the court looks to the Pennsylvania
Constitution and the enabling statute, Act 111, that created an arbitration panel.
Int'l Ass'n of Firefighters, Local 22, 999 A.2d at 564.
             Article 3, Section 31 of the Pennsylvania Constitution, Pa. C ONST. art
III, § 31, authorizes the General Assembly to "enact laws which provide that the
findings of panels or commissions, selected and acting in accordance with law for
the adjustment or settlement of grievances or disputes or for collective bargaining
between policemen and firemen and their public employers shall be binding upon
all parties …." [Emphasis added.] The phrase "in accordance with law" in Article



                                          8
3, Section 31 "means that the arbitrators, in conducting their hearings and making
an award … must adhere to the mandates of the enabling legislation." City of
Washington v. Police Dep't of Washington, 259 A.2d 437, 442 (Pa. 1969).
             In granting police officers and firefighters the right to collective
bargaining and creating an arbitration panel to resolve issues in dispute, Act 111
establishes "strict timetables" and prerequisites for collective bargaining, for an
arbitration request, and for a legislative action necessary to implement an
arbitration award. Pa. State Park Officers Ass'n v. Pa. Labor Relations Bd., 854
A.2d 674, 682 (Pa. Cmwlth. 2004). Collective bargaining must begin at least 6
months before the start of the next fiscal year. Section 3 of Act 111. If an impasse
has been reached after negotiating for at least 30 days, either party may request an
appointment of an arbitration panel after providing the other party written notice
containing specifications of issues in dispute. Section 4(a) of Act 111. A request
for arbitration must be made at least 110 days before the next fiscal year. Section 3
of Act 111. In addition, the police officers and firefighters must serve written
notice of arbitration upon the head of the local governing body. Section 5 of Act
111. Any legislation necessary to implement an arbitration award must be enacted
within one month after publication of the award to be effective the first day of the
fiscal year following the fiscal year during which such legislation was enacted.
Section 7(b) of Act 111.
             Under Act 111, time is of the essence in collective bargaining. Int'l
Ass'n of Firefighters, Local 463 v. City of Johnstown, 344 A.2d 754, 755 (Pa.
Cmwlth. 1975), rev'd on other grounds, 360 A.2d 197 (Pa. 1976). The time
schedules in Act 111 are "keyed to the public employer's next fiscal year" in order
to provide the local governing body sufficient time "to prepare an appropriate



                                         9
budget and to enact the necessary implementing legislation before the beginning of
the new fiscal year." Id. Compliance with the time requirements of Act 111,
therefore, "is mandatory."      Int'l Ass'n of Firefighters, Local 463 v. City of
Johnstown, 360 A.2d 197, 198 (Pa. 1976). The parties must strictly adhere to the
bargaining schedules in Sections 3 and 4 of Act 111 "in order to perfect the right to
arbitration." Delaware Cnty. Lodge #27, Fraternal Order of Police v. Pa. Labor
Relations Bd., 461 A.2d 1337, 1340 (Pa. Cmwlth. 1983).
             Further, the requirement in Section 4(a) of Act 111 that a party
requesting an arbitration must provide the other party written notice containing
specifications of issues, "is a codification of the longstanding common law rule
that arbitrators must decide all the issues presented to them, and only those issues."
In re Arbitration Award between Lower Yoder Twp. Police & Lower Yoder Twp.,
654 A.2d 651, 653 (Pa. Cmwlth. 1995) (emphasis added). An interest arbitration
can be triggered only by a party giving the other party written notice of arbitration.
Id. An interest arbitration award can embrace only the issues which the party
requesting an arbitration has specified in the written notice of arbitration. Id.
             The undisputed evidence established that the Borough and the Union
began collective bargaining on June 14, 2010, more than six months before the
start of the fiscal year 2011. The Union, however, failed to comply with Section
4(a) of Act 111 by seeking a list of arbitrators on June 29, 2010 without bargaining
with the Borough for at least 30 days, without declaring an impasse, and without
listing any issues in dispute. In addition, the Union never served upon the Borough
Council president written notice of arbitration containing specifications of issues in
dispute, as required by Section 5 of Act 111. The Union did not properly demand
an arbitration 110 days before the beginning of the fiscal year 2011, September 12,



                                          10
2010, as required by Section 3 of Act 111. Andreozzi's June 8, 2011 letter, stating
that the parties agreed to resolve the remaining issues by arbitration, cannot
constitute proper written notice of arbitration for the fiscal year 2011 because it
was dated more than 5 months after the start of the fiscal year 2011.
               Because the Union failed to timely provide written notice of
arbitration containing specifications of issues in dispute to the Borough and serve it
upon the Borough Council president, the arbitration panel lacked jurisdiction to
award the Borough police officers wage increases for the fiscal year 2011.5 See
City of Phila. v. Fraternal Order of Police, Lodge No. 5, 768 A.2d 291, 296 (Pa.
2001) (holding that the arbitrator was without jurisdiction to consider an issue
which was not included in the written notice of arbitration and was added on the
first day of the arbitration hearing); Plymouth Twp. Police Dep't v. Plymouth Twp.
Comm'rs, 366 A.2d 316, 318 (Pa. Cmwlth. 1976) (holding that the township could
not be compelled to submit the disputes to binding arbitration because collective
bargaining did not begin at least six months before the start of the new fiscal year
and because the demand for binding arbitration was not made at least 110 days
before the start of the new fiscal year).6

    5
       In light of Arbitrator Gifford's refusal on remand to clarify the record and to indicate the
majority arbitration panel's decision on the jurisdiction issue, it would have been futile for the
trial court to re-remand to the arbitration panel for a determination of the issue. Even if we
accept the Union's position that the majority of the arbitration panel decided the jurisdiction issue
by rendering the arbitration award, the evidence does not support the arbitration panel's
jurisdiction.
     6
       The Supreme Court previously excused a union's failure to comply with the mandatory
timetables in Sections 3 and 4(a) of Act 111, finding that the city's "dilatory procedure" in
scheduling collective bargaining sessions prevented the union from complying with the
timetables. Int'l Ass'n of Firefighters, Local 463, 360 A.2d at 198. Here, the Union does not
allege, and the record does not demonstrate, that the Union's failure to comply with the
requirements in Act 111 was caused by dilatory action of the Borough.



                                                11
               Without disputing its failure to comply with the requirements of Act
111 in demanding an arbitration, the Union argues that the Borough waived its
objection to the arbitration panel's jurisdiction, relying on the Borough manager's
June 8, 2011 letter proposing terms of a new CBA.                     The parties' good-faith
negotiations, however, are irrelevant to the issue of the arbitration panel's subject
matter jurisdiction. Arbitration Award between Lower Yoder Twp. Police & Lower
Yoder Twp., 654 A.2d at 654. It is well established that "[t]he issue of subject-
matter jurisdiction cannot be waived and may be raised at any time by the parties
or by the court sua sponte." Hous. Auth. of Pittsburgh v. Van Osdol, 40 A.3d 209,
213 (Pa. Cmwlth. 2012).7
               In conclusion, the evidence established the Union's noncompliance
with the mandatory requirements of Act 111, thereby depriving the arbitration
panel of subject matter jurisdiction to award the Borough police officers wage
increases for 2011. Accordingly, the trial court's order is affirmed.




                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Judge




    7
      Unlike subject matter jurisdiction, personal jurisdiction may be waived for failure to object
thereto. Wagner v. Wagner, 768 A.2d 1112, 1119 (Pa. 2001); Tracy v. Unemployment Comp.
Bd. of Review, 23 A.3d 612, 616 n.3 (Pa. Cmwlth. 2011).



                                                12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Gettysburg                    :
                                         :
                  v.                     :     No. 1768 C.D. 2013
                                         :
Teamsters Local No. 776                  :
                                         :
Appeal of: International Brotherhood     :
of Teamsters, Local 776                  :


                                  ORDER


            AND NOW, this 29th day of October, 2014, the order of the Court of
Common Pleas of Adams County in the above-captioned matter is AFFIRMED.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge
