           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berks-Lehigh Regional Police             :
Officers Association                     :
                                         :
            v.                           :   No. 786 C.D. 2016
                                         :   Argued: December 15, 2016
Upper Macungie Township, Topton          :
Borough, Lyons Borough and               :
Maxatawny Township                       :
                                         :
Petition of: Upper Macungie              :
Township                                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: January 12, 2017


            Petitioner Upper Macungie Township (Township) appeals from an
order of the Court of Common Pleas of Berks County (trial court), denying the
Township’s motion for summary judgment. For the reasons that follow, we affirm.
            The undisputed facts are as follows. On January 1, 1991, Maxatawny
Township, Topton Borough, and Lyons Borough (collectively, “Participants”)
established the Northeastern Berks Regional Police Commission (the Commission)
for the stated purpose of increasing the quality and efficiency of police protection
for the Participants. The effect of the Commission was to establish a unified
policing district, the Northeastern Berks Regional Police District, which allowed
the Participants’ formerly separate police departments to operate across any of the
Participants’ municipal boundaries.
                On December 26, 2000, the Participants agreed to amend the
Commission’s charter to include the Township as an additional participant and to
rename the Commission the Berks-Lehigh Regional Police Commission.1                      On
December 3, 2007, the Commission entered into a collective bargaining agreement
(CBA) with the Berks-Lehigh Regional Police Officers Association (the
Association), a duly recognized bargaining unit for fulltime police officers in the
Berks-Lehigh Regional Police Department (the Department).2 The CBA covered
the years 2008, 2009, and 2010. On January 24, 2011, the Commission and the
Association participated in an interest arbitration pursuant to what is commonly
referred to as the Policemen and Firemen Collective Bargaining Act or Act 111,
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-.10. As a result of
the January 24, 2011 arbitration, the arbitrators issued an award, providing that the
Commission and the Association shall enter into a new agreement, which shall be
effective retroactively from January 1, 2011, until December 31, 2013.
                On March 19, 2012, the Commission held an executive session at
which the Township moved to withdraw from the Commission effective at the end
of 2012.3 On April 17, 2012, the Commission voted to close the Department


       1
        From this point forward in the opinion, the term Participants shall include Upper
Macungie Township.
       2
           The Department is operated by the Commission.
       3
          In its brief, the Township notes that it voted to withdraw from the Commission at a
regular public meeting of the Township’s Supervisors, held on November 3, 2011. (Township
Br. at 5 n.1.)



                                               2
effective December 31, 2012.               As of December 31, 2012, the Commission
disbanded the Department and terminated the employment of all Department
police officers.
                On May 16, 2012, the Association filed a charge with the
Pennsylvania Labor Relations Board (PLRB) pursuant to Act 111 and the
Pennsylvania Labor Relations Act (PLRA),4 alleging that the Commission engaged
in unfair labor practices by failing to engage in collective bargaining or interest
arbitration over the impact of the Township’s withdrawal from the Commission
and the subsequent closure of the Department. By decision dated June 7, 2012, the
PLRB declined to issue a complaint and dismissed the charge of unfair labor
practices after determining that the charge was filed prematurely.
                On May 20, 2013, the Association and the Commission participated in
an arbitration before a panel of three arbitrators to determine the impact of the
Commission’s decision to disband the Department.5 On April 26, 2014, the panel
issued an award titled “Act 111 Impact Arbitration Award” (the Award).
(Reproduced Record (R.R.) at 89a.) The Award purported to be pursuant to
Section 4(b) of Act 111, 43 P.S. § 217.4(b). The panel framed the issue before it
as “what is the impact of the Commission’s decision to no longer provide police
services by disbanding its police department . . . how the impact of that decision
shall be addressed and what remedies, if any shall be provided.” (R.R. at 89a-90a.)



       4
           Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-.13.
       5
         At oral argument, counsel for both parties stated that, to the best of their knowledge, the
Association and the Commission mutually agreed to proceed to arbitration on the impact of the
Commission’s decision.



                                                 3
             The Award addressed numerous issues relating to the dissolution of
the Department, including: (1) reference letter to be given to officers employed as
of   the   date   of   dissolution,   (2)       ongoing   maintenance   of   personnel
files, (3) cooperation on ongoing arrests and active criminal cases, and (4) recall of
officers in the event that the Department is re-established on or before
December 31, 2014. Notably, the Award provided that “[a]ll other proposals of the
parties regarding the impact of the Commission’s decision to disband its police
department which are not addressed in this Award have been fully considered by
the Panel and rejected by a majority of the same.” (R.R. at 92a.) The Award also
provided that “[t]he Panel shall retain jurisdiction for ninety (90) days from the
date of this Award for the limited purpose of addressing any issues involving the
implementation of the terms of the within Award.” (Id.)
             On November 7, 2014, the Association filed a complaint in the trial
court against the Participants, alleging that the CBA was a valid contract between
the Participants and the Association and that the Participants breached that contract
by disbanding the Department prior to the expiration of the CBA on
December 31, 2013. On December 15, 2015, the Township filed a motion for
summary judgment in the trial court, arguing that the Association raised the breach
of contract claim in the Association’s complaint before the May 23, 2013
arbitration panel and that the Association’s complaint should be dismissed because
the Award resolved all of the claims therein. The trial court denied the Township’s
motion for summary judgment without opinion on March 16, 2016.
             On April 12, 2016, the Township petitioned the trial court to amend
its March 16, 2016 order to include the interlocutory appeal language prescribed
by 42 Pa. C.S. § 702(b). By order dated April 14, 2016, the trial court denied the


                                            4
Township’s request to include the interlocutory appeal language.                               On
May 16, 2016, the Township petitioned this Court for review of the trial court’s
denial of the Township’s request to include the interlocutory appeal language.6 On
June 14, 2016, we granted the Township’s petition for review to consider whether
the trial court lacked jurisdiction over this matter because the matter was either
controlled by arbitration or was within the exclusive jurisdiction of the PLRB.7
                The Township argues that the trial court lacks jurisdiction over the
instant matter because the Award is final and binding and settled all issues raised
in the Association’s complaint. Alternatively, the Township argues that, even if
the Award did not settle all issues raised in the Association’s complaint, the
Association’s claim that the Township breached the CBA effectively alleges that
the Township engaged in unfair labor practices, which the PLRB has exclusive
jurisdiction over pursuant to Section 8 of the PLRA, 43 P.S. § 211.8.8                         The

       6
         The Township’s petition to this Court for review of an interlocutory order was made
pursuant to the official note to Pa. R.A.P. 1311, which provides that:
               Where the administrative agency or lower court refuses to amend its order
       to include the prescribed statement, a petition for review under Chapter 15 of the
       unappealable order of denial is the proper mode of determining whether the case
       is so egregious as to justify prerogative appellate correction of the exercise of
       discretion by the lower tribunal. If the petition for review is granted in such a
       case, the effect . . . is the same as if a petition for permission to appeal had been
       filed and granted, and no separate petition for permission to appeal need be filed.
       7
         Because the issue for which we granted review is a question of law, our standard of
review is de novo and our scope of review is plenary. Cmwlth. v. White, 910 A.2d 648, 650 n.3
(Pa. 2006); Pa. Waste Indus. Ass’n v. Monroe Cnty. Mun. Waste Mgmt. Auth., 80 A.3d 546, 555
(Pa. Cmwlth. 2013) (en banc).
       8
           Section 8 of the PLRA provides:
              The [PLRB] is empowered, as hereinafter provided, to prevent any person
       from engaging in any unfair labor practice listed in section six of this act. This
(Footnote continued on next page…)

                                                5
Association argues that the Award was an impact arbitration award, rather than a
grievance arbitration award, which neither settled nor purported to settle the
Association’s breach of contract claim. Further, the Association argues that the
breach of contract claim does not necessarily allege an unfair labor practice, and,
therefore, the trial court has original jurisdiction to decide the claim.
             We first address whether the Award finally settled the breach of
contract claim raised in the Association’s complaint.            In doing so, we must
examine whether the arbitration was an interest arbitration or a grievance
arbitration within the definitions set forth in the PLRA.
             The Township argues that the Association’s claim involving a breach
of the CBA is a grievance, which was settled via a final and binding grievance
arbitration rather than an interest arbitration. The Association argues that the
Award was an interest arbitration award, which did not settle the breach of contract
claim for several reasons: (1) the Award itself stated that it was only an interest
award; (2) the CBA did not provide a specific procedure for resolving grievances
and, thus, did not provide that the parties should arbitrate any grievances which
arose; and (3) the Award did not address the Association’s breach of contract
claim, let alone render a final and binding decision on that claim.
             Our Supreme Court has previously elucidated the distinction between
an interest and a grievance arbitration:


(continued…)

      power shall be exclusive and shall not be affected by any other means of
      adjustment or prevention that have been or may be established by agreement, law
      or otherwise.



                                            6
              “Interest arbitration” is to be distinguished from
              “grievance arbitration.” “Interest arbitration” is the
              arbitration that occurs when the employer and employees
              are unable to agree on the terms of a collective
              bargaining agreement. “Grievance arbitration” is the
              arbitration that occurs when the parties disagree as to the
              interpretation of an existing collective bargaining
              agreement.
City of Philadelphia v. Int’l Ass’n of Firefighters, Local 22, 999 A.2d 555, 558 n.2
(Pa. 2010).

              While we agree that an award is not necessarily an interest arbitration
award simply because “interest arbitration” is written in the header of the
document, the substance of the Award also supports a conclusion that the Award is
an interest award and not a grievance award. We first note that the “issues in
dispute” submitted by the Association prior to the Arbitration did not mention the
breach of contract claim, but related only to the potential impacts of the dissolution
on matters such as salary, rank, and benefits of officers. (R.R. at 210a.) Further,
the relief granted by the Award relates only to issues that may arise between the
Association and the Participants after the dissolution, rather than whether the
Participants breached the CBA. Specifically, the Award provides: (1) that officers
employed as of the date of dissolution shall be given neutral letters of reference
noting that their employment was terminated due to the dissolution; (2) that
personnel files for formerly employed officers will be maintained by Maxatawny
Township; (3) that formerly employed officers will cooperate with ongoing
criminal trials and previously made arrests; and (4) that any former officer who
remained employed through December 31, 2012, shall have the right to be recalled
if the Department is re-established on or before December 31, 2014. Thus, the
relief addressed in the Award relates only to how the Commission and the


                                          7
Association will interact after the dissolution, rather than deciding any outstanding
grievances.
              In arguing that the Award also addressed the Association’s breach of
contract claim, the Township places great weight on section 5 of the Award, which
is titled “Remaining Issues.” (R.R. at 92a.) Section 5, however, merely states that
“[a]ll other proposals of the parties regarding the impact of the Commission’s
decision to disband its police department which are not addressed in the Award
have been fully considered by the Panel and rejected by a majority of the same.”
Id. (emphasis added).       Even if the parties did present arguments on the
Association’s breach of contract claim, the Award is specifically limited to
addressing the impact of the Commission’s decision rather than any breach or
violation of the CBA.
              Further, the CBA itself does not call for final and binding arbitration
in the event a grievance arises. The only reference to a grievance procedure relates
to discipline of officers: “[a]ny Police Officer discipline imposed by the
Commission shall be subject to such rules as General Orders, Standard Operating
Procedures and Policies promulgated by the Commission and/or the Chief of
Police.” (R.R. at 70a.) Our Supreme Court has previously held that Act 111 does
not require that grievances and disputes be resolved by binding arbitration. See
Twp. of Moon v. Police Officers of Twp. of Moon, 498 A.2d 1305 (Pa. 1985). In
the absence of such an agreement to arbitrate, “the Court of Common Pleas has
jurisdiction over actions involving claims under collective bargaining agreements.”
Borough of Philipsburg v. Bloom, 554 A.2d 166, 168 (Pa. Cmwlth. 1989),
aff’d, 574 A.2d 602 (Pa. 1990). Despite Act 111’s intent to encourage resolution
of CBA grievances through arbitration, the parties are free to exclude grievances


                                          8
from the dispute resolution process. West Lampeter Twp. v. Police Officers of W.
Lampeter       Twp.,    598     A.2d       1049,   1051   (Pa.   Cmwlth.     1991),    appeal
denied, 613 A.2d 562 (Pa. 1992). It is axiomatic that arbitration is a matter of
contract and that a particular issue cannot be arbitrated absent an agreement
between the parties. Hazleton Area Sch. Dist. v. Bosak, 671 A.2d 277, 281 (Pa.
Cmwlth. 1996).
               Having determined that the Award was not final and binding with
respect to the Association’s breach of contract claim, we now address whether the
trial court or the PLRB has jurisdiction to decide that issue.
               The Pennsylvania Constitution sets forth the starting point for
determining what tribunal has jurisdiction over a particular type of claim.
Article 5, Section 5 of the Pennsylvania Constitution provides “[t]here shall be one
court of common pleas for each judicial district . . . having unlimited original
jurisdiction in all cases except as may otherwise be provided by law.” See Cnty. of
Erie v. Verizon North, Inc., 879 A.2d 357, 363 (Pa. Cmwlth. 2005); 42 Pa.
C.S. § 931(a).9 Thus, the next step in our analysis is determining whether any law
vests jurisdiction in another court or agency. Section 8 of the PLRA empowers the
PLRB “to prevent any person from engaging in any unfair labor practice listed in
section six of this act.” We have previously held that the PLRA, read in pari


      9
          42 Pa. C.S. § 931(a) provides:
      (a) General rule - Except where exclusive original jurisdiction of an action or
      proceeding is by statute or by general rule adopted pursuant to
      section 503 (relating to reassignment of matters) vested in another court of this
      Commonwealth, the courts of common pleas shall have unlimited original
      jurisdiction of all actions and proceedings, including all actions and proceedings
      heretofore cognizable by law or usage in the courts of common pleas.



                                                   9
materia with Act 111, vests in the PLRB the authority to adjudicate claims
involving unfair labor practices which arise in relation to a collective bargaining
agreement. Wilkes-Barre Twp. v. Pa. Labor Relations Bd., 878 A.2d 977, 982 (Pa.
Cmwlth. 2005).
              While it is clear the Association’s claim relates to an alleged breach of
the CBA, it does not expressly allege that the Commission engaged in unfair labor
practices.10 The Township argues that a breach of a CBA is an unfair labor
practice as a matter of law, or, alternatively, that the PLRB must determine if an
unfair labor practice exists before jurisdiction reverts to the trial court.
              We do not agree with the Township’s contention that every breach of
contract claim relating to a CBA is an unfair labor practice as a matter of law. We
have previously held that such a breach could result in both an unfair labor practice
and a grievance:
              Where breach of contract is alleged, interpretation of
              collective bargaining agreements typically is for the
              arbitrator under the grievance procedure set forth in the
              parties’ collective bargaining agreement. However, the
              PLRB will review an agreement to determine whether the
              employer clearly has repudiated its provisions because
              such a repudiation may constitute both an unfair labor
              practice and a grievance.
Pa. State Troopers Ass’n v. Pa. Labor Relations Bd., 761 A.2d 645, 649 (Pa.
Cmwlth. 2000) (emphasis added) (internal citations omitted). Thus, if a party
submits a claim to the PLRB alleging an unfair labor practice due to a breach of


       10
          We recognize that the Association had previously filed a charge of unfair labor
practices with the PLRB on May 16, 2012. The PLRB, however, dismissed the charge as
premature, and, presumably, the Association chose not to pursue that charge after the dismissal.



                                              10
contract, the PLRA empowers the PLRB to review the CBA to determine if the
breach rises to the level of an unfair labor practice. 11 Accordingly, every breach of
contract claim is not necessarily an unfair labor practice.12
               Additionally, the PLRA does not require that a party must first submit
a breach of contract claim to the PLRB to determine whether it does, in fact,
constitute an unfair labor practice. “The PLRB exists to remedy violations of
statute, i.e., unfair labor practices, and not violations of contract.” AFSCME, Dist.
Council 47, Local 2187 v. Pa. Labor Relations Bd., 41 A.3d 213, 217 (Pa.
Cmwlth. 2012). We have held that the PLRB will review a repudiated contract to
determine if unfair labor practices exist, but we did not hold that it must do so. See
Pa. State Troopers Ass’n, 761 A.2d at 649. Here, the Association chose not to
pursue an unfair labor practice claim after the PLRB determined that the charge


       11
          Section 8(b) of the PLRA provides that “[w]henever it is charged that any person has
engaged in or is engaging in any such unfair labor practice, the [PLRB], . . . shall have authority
to issue charges in that respect.” The Association did not attempt to charge in its complaint that
an unfair labor practice occurred, and, thus, the PLRB has no authority to issue charges on a
claim that was not raised.
       12
           The Township cites Wilkes-Barre Township for the proposition that a breach or
repudiation of a collective bargaining agreement must also be an unfair labor practice.
Wilkes-Barre Township, however, is readily distinguishable from the instant case. In
Wilkes-Barre Township, the township allegedly repudiated a collective bargaining agreement
with the local police association by enacting an ordinance providing different compensation for
new hires than the compensation agreed to in the collective bargaining agreement. Willkes-Barre
Twp., 878 A.2d at 979. The PLRB held that the township committed an unfair labor practice in
violation of Act 111 by unilaterally altering the collective bargaining agreement. Although
factually similar in some respects, Wilkes-Barre Township is procedurally distinct on one critical
point: the association in Wilkes-Barre Township filed a claim alleging unfair labor practices with
the PLRB rather than filing a complaint in a court of common pleas. Thus, Wilkes-Barre
Township has no bearing on whether any breach of contract arising out of a CBA constitutes an
unfair labor practice that must first be submitted to the PLRB.



                                                11
was filed prematurely on June 7, 2012. The Association’s complaint provides, in
pertinent part:
             24. [The Association] believes and therefore states, that it
             had a valid contract in existence that did not expire until
             the end of 2013.
             25. [The Association] further believes, and therefore
             states, that accordingly, the Defendants have an
             obligation to fund the CBA at least through the end of
             2013.
             26. The Defendants are in breach of their contract with
             [the Association].
             27. As a direct and proximate result of the breach by the
             Defendants, [the Association] has suffered a loss in
             excess of Fifty Thousand Dollars ($50,000).

(R.R. 6a.) As stated above, not every breach of contract claim related to a CBA is
an unfair labor practice as a matter of law. Thus, the Association has alleged only
a breach of contract claim and has sought only relief in the form of compensatory
damages consistent with a breach of contract claim. Accordingly, the trial court
has original jurisdiction over the Association’s breach of contract claim.       In
contrast, had the Association alleged an unfair labor practice or sought relief
consistent with the PLRA, the PLRB would have exclusive jurisdiction over that
claim.    Pa. State Lodge of the Fraternal Order of Police v. Pa. State
Police, 535 A.2d 270, 271 (Pa. Cmwlth. 1987).
             Contrary to the Township’s assertions, we find no case law to support
a conclusion that all breach of contract claims relating to a CBA are per se unfair
labor practices within the exclusive jurisdiction of the PLRB. In fact, our prior
decisions support a determination that a breach of contract claim which does not
allege unfair labor practices should be adjudicated using the grievance process set
forth in the CBA. In the absence of such a grievance process, the courts of

                                         12
common pleas have original jurisdiction over a breach of contract claim. Thus, the
Association’s complaint was properly before the trial court.
            Accordingly, the order of the trial court is affirmed.




                                P. KEVIN BROBSON, Judge




                                        13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berks-Lehigh Regional Police          :
Officers Association                  :
                                      :
            v.                        :   No. 786 C.D. 2016
                                      :
Upper Macungie Township, Topton       :
Borough, Lyons Borough and            :
Maxatawny Township                    :
                                      :
Petition of: Upper Macungie           :
Township                              :



                                  ORDER


            AND NOW, this 12th day of January, 2017, the order of the Court of
Common Pleas of Berks County, denying Upper Macungie Township’s motion for
summary judgment, is hereby AFFIRMED.




                               P. KEVIN BROBSON, Judge
