                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia                            :
                                                :
                      v.                        :
                                                :
Fraternal Order of Police,                      :
Lodge No. 5,                                    :    No. 35 C.D. 2017
                              Appellant         :    Argued: March 8, 2018


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION BY
JUDGE COVEY                                          FILED: March 26, 2018

               The Fraternal Order of Police Lodge No. 5 (FOP) appeals from the
Philadelphia County Common Pleas Court’s (trial court) December 21, 2016 order
granting the City of Philadelphia’s (City) Petition to Vacate Arbitration Award
(Petition) and vacating Arbitrator James C. Peck Jr.’s (Arbitrator Peck) award
(Award) retroactively promoting Lieutenant Jonathan Josey (Lieutenant Josey) from
an invalid promotion list.1 The FOP presents three issues for this Court’s review: (1)
whether the issue before Arbitrator Peck was within the terms of the 2014-2017
collective bargaining agreement (CBA); (2) whether the trial court erred by
substituting its own judgment for that of Arbitrator Peck; and (3) whether the Award
should be affirmed. After review, we affirm.




       1
           Former Section 7-401(f) of the City’s Home Rule Charter, 351 Pa. Code § 7.7-401(f),
provided for the establishment of eligible lists for appointment and promotion. See Reproduced
Record at 53a. Further, pursuant to Section 10.071 of the City’s Civil Service Regulations, eligible
lists established as the result of non-continuous or periodic examinations shall continue in force for
no longer than two years.
                                     Background
             On September 30, 2012, Lieutenant Josey was assigned to police the
City’s annual Puerto Rican Day Parade’s after-party. During the course of this
assignment, Lieutenant Josey had an interaction with Aida Guzman (Guzman) that
was recorded on a cell phone and subsequently posted to the Internet for public
viewing. The video showed Lieutenant Josey swinging his right hand and making
contact with Guzman’s upper body. Guzman fell to the ground and suffered minor
facial injuries. Thereafter, then-City Police Commissioner Charles Ramsey viewed
the video and concluded that Lieutenant Josey had used excessive force and violated
the City Police Department’s (Department) Disciplinary Code by making false entries
in official documents related to Guzman’s arrest. Following the City’s issuance of a
Notice of Intention to Dismiss, the City formally terminated Lieutenant Josey’s
employment on November 1, 2012.
             The FOP filed a grievance pursuant to the parties’ CBA challenging
Lieutenant Josey’s employment termination and, on June 24 and 25, 2013, Arbitrator
David J. Reilly (Arbitrator Reilly) conducted a hearing.      On August 10, 2013,
Arbitrator Reilly issued his award, as follows:

             1. The grievance is granted.
             2. The City did not have just cause to discharge
             [Lieutenant] Josey, effective November 1, 2012.
             3. The City will promptly restore [Lieutenant] Josey to his
             former position within the Department as a Lieutenant in
             the Highway Patrol Unit without loss of seniority. In
             addition, the City will make him whole for all wages and
             benefits lost as a consequence of his suspension and
             subsequent discharge through the date of his reinstatement,
             less all outside wages and other earnings received by him as
             to this period. I will retain jurisdiction of this matter to
             resolve any dispute as to the monies to be paid to him based
             on this award, including the issue of whether [Lieutenant]
             Josey satisfied his obligation to mitigate his damages.
                                            2
             4. The Department will revise [Lieutenant] Josey’s
             personnel record to delete all references to his November
             1, 2012 discharge to the maximum extent permitted under
             the governing law.

Reproduced Record (R.R.) at 43a (emphasis added). In accordance with the award,
Lieutenant Josey was reinstated without loss of seniority or compensation.


                                           Facts
             In early 2014, Lieutenant Josey took and passed the City’s promotional
exam for Police Captain and, in June 2014, was ranked 15 out of 57 candidates. In
January 2015, the City’s Human Resources’ Office certified a list of 20 names to the
Department to fill 13 Police Captain vacancies. Lieutenant Josey was ranked 15 on
the list of 20 names. The 13 vacancies were filled by candidates ranked 1 to 5 and 7
to 14. In February 2015, a list of 17 names was certified to the Department, on which
Lieutenant Josey was now the highest-ranking candidate.        Lieutenant Josey was
interviewed by the Promotional Review Board, consisting of Inspectors Anthony
Washington and Joel Dales, and Chief Inspector Christopher J. Flacco (Chief
Inspector Flacco).     During the interview, Chief Inspector Flacco questioned
Lieutenant Josey about the September 30, 2012 incident.        While the other two
Inspectors recommended Lieutenant Josey for promotion, Chief Inspector Flacco
provided a memorandum to City Police Commissioner Ross (Commissioner Ross) in
which he did not recommend Lieutenant Josey for promotion because of the
September 30, 2012 incident and its detrimental long-term impact on the relationship
between the Department and the community it serves, as well as undermining his
ability to command. Commissioner Ross elected to bypass Lieutenant Josey and
promoted the next candidate on the list.
             On February 25, 2016, the FOP filed a grievance on Lieutenant Josey’s
behalf, challenging the denial of his promotion and, on May 17, 2016, Arbitrator

                                            3
Peck conducted a hearing. On July 27, 2016, Arbitrator Peck issued the following
award:

            1. The grievance alleging that the [] Department violated
            the [CBA], by refusing to promote [Lieutenant] Josey to the
            rank [of] Captain is cognizable under the terms of the
            [CBA], and is therefore arbitrable.
            2. The City’s decision to deny promotion to the rank of
            Captain to [Lieutenant] Josey, solely and exclusively upon
            prior discipline which had been expunged from his
            personnel record, is a violation of [Lieutenant] Josey’s
            rights under the [CBA].
            3. The City is directed to retroactively promote
            [Lieutenant] Josey to the rank of Captain, as of the date
            when he would have otherwise have been promoted, but for
            the discrimination which was visited upon him. Further, the
            City shall make [Lieutenant] Josey whole for any and all
            wages and benefits he may have lost as a result of the City’s
            failure to promote him timely.

R.R. at 282a.
            On August 26, 2016, the City filed its Petition with the trial court. The
FOP filed a response on September 14, 2016, to which the City filed a reply on
October 4, 2016, and the FOP filed a sur-reply on October 14, 2016. On November
4, 2016, the trial court heard oral argument and held the matter under advisement.
The parties submitted supplemental briefs and, on December 23, 2016, the trial court
docketed its order granting the City’s request to vacate the arbitration award. The
FOP appealed to this Court.


                                    Discussion
            Judicial review of an arbitration award arising under what is
            commonly referred to as Act 111, Act of June 24, 1968,
            P.L. 237, as amended, 43 P.S. §§ 217.1-217.10, is in the
            nature of narrow certiorari. Under this standard, a review
            in court is limited to questions regarding: (1) the

                                         4
               jurisdiction of the arbitrator; (2) the regularity of the
               proceeding; (3) an excess of the arbitrator’s powers; and
               (4) the deprivation of constitutional rights. The standard of
               review to be applied is two-fold. A court’s review is a
               plenary, non-deferential standard where the resolution
               of the issues turns on a question of law or application of
               law to undisputed facts. However, where the question
               depends on fact-finding or upon interpretation of the
               collective bargaining agreement, the court is bound by the
               arbitrator’s determination even if the arbitrator is wrong.

Town of McCandless v. McCandless Police Officers Ass’n, 952 A.2d 1193, 1196 n.6
(Pa. Cmwlth. 2008) (bold emphasis added; citations omitted).2
               The FOP first argues that the issue before Arbitrator Peck was within the
terms of the CBA. Specifically, the FOP contends Lieutenant Josey’s promotion
denial lacked just cause, thereby making it a disciplinary action fitting squarely
within the CBA.           The City rejoins that Arbitrator Peck did not find that
Commissioner Ross’ decision was a form of disciplinary action. Further, the CBA
provides that suspensions, demotions and dismissals are the only disciplinary actions
that can be grieved and arbitrated. See Supplemental Reproduced Record (S.R.R.) at
83b.
               Initially, “[a]n arbitrator exceeds his powers when he orders an illegal
act or when his award goes beyond the terms and conditions of employment
governed by Act 111.” McCandless, 952 A.2d at 1196 (emphasis added). “An
arbitrator exceeds his jurisdiction when he addresses issues not properly submitted to
him in accordance with Section 1 of Act 111, [43 P.S. § 217.1].” Id. Section 1 of
Act 111 provides, in pertinent part:

       2
          The FOP makes an in-depth argument with respect to the purpose of Act 111 and “the
legislative intent” behind it, including the proposition that an arbitration award is “a legislative
mandate.” FOP Br. at 22, 24. However, its argument is all part and parcel of the scope of review.
Because this Court ultimately determines, as discussed herein, that Arbitrator Peck did not interpret
the CBA or make any factual findings with respect thereto, the FOP’s assertions in this regard have
no direct bearing on the merits of the arguments addressed herein.
                                                 5
             Police or firemen employed by a political subdivision of the
             Commonwealth . . . shall . . . 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.    However, the law is well-settled that “matters which involve
inherent managerial prerogatives are not subject to mandatory collective bargaining.”
Borough of Ellwood City v. Pa. Labor Relations Bd., 998 A.2d 589, 600 (Pa. 2011).
This Court has expressly held:

             We again stress that arbitrators are prohibited from making
             awards which are excluded from the scope of Act 111 and
             outside the definition of bargainable issues.            The
             promotion of policemen is a matter of management
             prerogative subject to limitation only by statutory, home
             rule charter, civil service or merit system constraints.

City of Erie v. Haas Mem’l Lodge No. 7, 434 A.2d 881, 883 n.4 (Pa. Cmwlth. 1981)
(emphasis added; citations omitted).
             In the instant matter, by February 25, 2016 letter, the FOP notified the
Department’s Labor Relations Unit of the alleged grievance: “Member [Lieutenant
Josey] Is Being Denied a Promotion To Police Captain Without Just Cause.” R.R. at
8a. On March 18, 2016, the FOP submitted a Demand For Arbitration. Arbitrator
Peck stated the issues as follows:

             Is the instant Grievance arbitrable under the terms of the
             [CBA]? If so, did the [City] violate the express terms of the
             [CBA] by denying [Lieutenant] Josey a promotion to the
             rank of Captain, without just cause?
             If the City is found to have violated the terms of the [CBA],
             what is the appropriate remedy?




                                          6
R.R. at 273a. Arbitrator Peck, before addressing his analysis and discussion of the
grievance, reiterated: “As stated in the introduction of this Award, this case presents
two issues, the threshold issue being the arbitrability of a denial of a promotion.”
R.R. at 279a. Arbitrator Peck admitted:

               This is an issue that comes with a significant history. For
               more than 20 years, arbitrators have upheld the City’s
               position that the [Department] has the discretion under
               the Home Rule Charter to decide which candidates for
               promotion shall be promoted. Indeed, this Arbitrator has
               so ruled in a prior case involving a proposed promotion of
               Officer James T. Keith to the rank of Sergeant. Thus, it
               would appear from prior arbitration awards that in most
               cases, any review of a non-promotion determination
               should come through the City’s Civil Service
               Commission, and not via the grievance-arbitration
               provisions of the [CBA].

R.R. at 279a (emphasis added). Arbitrator Peck, however, found that Lieutenant
Josey’s non-promotion fell within an exception to the above-stated law. Specifically,
Arbitrator Peck opined: “As the instant matter turns on the City’s reliance upon
expunged discipline in denying a promotion, I am persuaded that I have the
authority to decide the instant case under the Sprowal exception, and I shall do so.”
R.R. at 280a (emphasis added). Arbitrator Peck explained that the Sprowal exception
is based on an award in a prior unrelated arbitration,3 wherein the arbitrator
determined that expunged records cannot be relied upon in deciding future discipline
or promotions. Therefore, any reliance thereon violates the CBA. According to
Arbitrator Peck, because he believed those to be the facts of what occurred herein, the
matter fell within his purview.
               First, because the Sprowal exception is based on a single-arbitrator
decision that the courts have never adopted, it is not binding on this Court. Further,


      3
          Arbitrator Peck cited the Sprowal case as: “AAA 14 390 00969 97.” R.R. at 280a n.11.
                                                7
the Sprowal facts are inapposite to the current matter because in Sprowal the actual
review of expunged records was the basis for denying a promotion. Here, according
to the record, Chief Inspector Flacco and Commissioner Ross did not review
Lieutenant Josey’s expunged records before making their decisions. Rather, Chief
Inspector Flacco and Commissioner Ross saw the actual video footage of the incident
at the time the video went viral. Expunging an incident from an employee’s file
does not mean the incident never happened and has no lasting repercussions. This
fact is especially true here, where the expunged records were “references to
[Lieutenant Josey’s] November 1, 2012 discharge,” not the incident itself. R.R. at
43a.   Expunging Lieutenant Josey’s discharge has no effect on those in the
community that witnessed the incident first-hand, or watched the video on the
internet. The repercussions therefrom were the basis for Chief Inspector Flacco’s
recommendation and Commissioner Ross’ decision, not Lieutenant Josey’s discharge
therefor.
            Finally, the Arbitrator has no power to decide whether he has the
authority to decide a case. Act 111 and the CBA provide the basis for arbitrability.
Because promotions are matters of managerial prerogative and therefore excluded
under Act 111, and Arbitrator Peck did not refer to any CBA provision giving him the
authority to arbitrate the issue, he did not have said power. Accordingly, this Court
holds that the issue before Arbitrator Peck was not within the purview of Act 111, nor
within the terms of the CBA and, therefore, was not arbitrable.
            The FOP next asserts that the trial court erred by substituting its
judgment for that of Arbitrator Peck by determining that Arbitrator Peck’s application
of the Sprowal exception was overbroad and impermissibly exceeded his powers.
            In City of Scranton v. Fire Fighters Local Union No. 60, 20 A.3d 525,
531 (Pa. Cmwlth. 2011), this Court explained:


                                          8
             In Borough of Ellwood City, . . . our Supreme Court held
             that under Act 111, matters involving inherent managerial
             prerogatives are not subject to mandatory or collective
             bargaining. In resolving whether a particular topic is an
             inherent managerial prerogative or a working condition
             subject to collective bargaining, the proper approach is to
             inquire whether collective bargaining over the topic would
             unduly infringe on the public employer’s essential
             managerial responsibilities.
             Here, the Arbitrator noted in his initial grievance decision
             that but for the past practice language in the 1996 CBA, the
             City’s response to automated alarms ‘would be deemed a
             basic prerogative of management.’ Arbitrator’s Dec.,
             8/24/06 at 11 . . . (emphasis added). Given the elimination
             of protection of past practices, the City’s response to
             automated alarms must be deemed a managerial prerogative
             not subject to collective bargaining. Borough of Ellwood
             City.

City of Scranton, 20 A.3d at 531.
             Similarly, in the instant case, Arbitrator Peck essentially held that but for
the Sprowal exception, “the [Department] has the discretion under the Home Rule
Charter to decide which candidates for promotion shall be promoted. . . . [A]ny
review of a non-promotion determination should come through the City’s Civil
Service Commission.” R.R. at 279a. Because Arbitrator Peck had no authority to
make an exception that was not authorized under either Act 111 or the CBA, and “the
promotion of policemen is a matter of management prerogative[,]” Erie, 434 A.2d at
883 n.4, this Court concludes that Arbitrator Peck “lacked the authority to sustain the
[FOP’s] grievance.” City of Scranton, 20 A.3d at 531. Consequently, the trial court
did not substitute its judgment for that of Arbitrator Peck, but rather properly vacated
an award wherein the arbitrator exceeded his powers.
             Lastly, the FOP contends that the Award should be affirmed because the
Award was an improper discipline decision, not a managerial promotion decision.
Specifically, the FOP maintains that the improper consideration of expunged

                                            9
discipline rendered the failure to promote Lieutenant Josey a disciplinary action. The
FOP cites Pennsylvania State Police v. Pennsylvania State Troopers Ass’n, 840 A.2d
1059 (Pa. Cmwlth. 2004), and Philadelphia Housing Authority v. Fraternal Order of
Housing Police, 811 A.2d 625 (Pa. Cmwlth. 2002), to support its position. The City
rejoins that Arbitrator Peck did not rule that Commissioner Ross’ decision was a form
of discipline and the Court cannot defer to factual findings that do not exist.
              At the outset, Pennsylvania State Police and Philadelphia Housing are
clearly distinguishable from the current case. In Pennsylvania State Police, the CBA
at issue permitted arbitration with respect to “all matters of discipline.” Id. at 1061.
Thus, in finding a particular officer’s transfer was a disciplinary action and thus
arbitrable, the arbitrator merely interpreted the words “all matters of discipline.” Id.
The Court held: “In this case it is clear that the arbitrator’s determination of
arbitrability was based upon both contract interpretation and factual findings, to
which this [C]ourt is bound to defer.” Id. at 1063.
              The Pennsylvania State Police Court further ruled “[t]hat the transfer
was made for disciplinary reasons was plainly a finding of fact. Because we must
defer to these findings, we similarly must conclude that the arbitrator did not exceed
his authority in arbitrating the grievance.” Id. at 1063. Here, the CBA provides that
the only disciplinary actions that can be grieved/arbitrated are suspensions,
demotions, and dismissals. See S.R.R. at 83b.4 Further, Arbitrator Peck made no
factual finding that Lieutenant Josey’s promotion denial was a disciplinary action.
Similarly, with respect to Philadelphia Housing, the action being grieved and
arbitrated was a police officer’s dismissal which is clearly a disciplinary action, but
those are not the facts of this case. Accordingly, both cases are inapposite.

       4
         CBA Article XXI (Grievance and Arbitration Procedure). This Court notes that CBA
Article XXII (Miscellaneous Provisions) provides: “Transfers may be part of the formal disciplinary
system that is subject to the procedures contained in Article XIX [sic].” S.R.R. at 90b-91b. Article
XIX refers to “Disability Program.” S.R.R. at 73b.
                                                10
             Moreover, a review of Arbitrator Peck’s opinion reveals that Arbitrator
Peck determined that the City relied upon expunged discipline as the basis for
denying Lieutenant Josey’s promotion. That finding does not transform the denial
into a disciplinary action. Arbitrator Peck did not find as a fact that the denial of the
promotion itself was a disciplinary action. Even assuming he made such a finding,
the action is not a suspension, demotion or dismissal, which are the only disciplinary
actions reviewable under the CBA. Thus, contrary to the FOP’s argument, the Award
was not an improper discipline decision but, rather, a managerial promotion decision.
             The City also argues that the Award cannot be affirmed because
Arbitrator Peck exceeded his authority by ordering the City to promote Lieutenant
Josey from an expired list. The FOP rejoins that this argument is illogical because
any grievance regarding a promotion would not have a remedy if the list is expired by
the date of the Award. However, because promotions are managerial prerogatives,
they are generally not subject to grievances. Thus, the FOP’s rejoinder is without
merit.
             Section 7-401(f) of the City’s Home Rule Charter provides:

             The establishment of eligible lists for appointment and
             promotion upon which lists shall be placed the names of
             successful candidates in the order of their relative
             excellence in the respective examinations, provided that any
             candidate who shall have maintained a bona fide residence
             in the City for at least one year prior to the date of the
             examination shall prevail over any other candidate with the
             identical score. Such lists shall continue in force for at
             least one year from the date of their establishment and
             thereafter until exhausted or replaced by more recently
             prepared lists but in no case longer than two years. All
             such lists shall be available for public inspection[.]

R.R. at 53a (emphasis added).         Further, Section 10.071 of the Civil Service
Regulations states, in relevant part: “Eligible lists established as the result of non-
continuous or periodic examinations shall continue in force for at least one year from
                                           11
the date that the list is signed and designated as an Established Eligible List until
exhausted or replaced but in no case longer than two years.” Id.
                “[B]ecause [Act 111] does not allow an illegal act, a[n arbitrator]
exceeds [his] powers if in [his] award [he] mandates that such an act be carried out.”
City of Phila. v. Int’l Ass’n of Firefighters, Local 22, 999 A.2d 555, 565 (Pa. 2010).
“[I]t is beyond peradventure that a civil service promotion list cannot be extended
beyond two years.” Walls v. City of Phila., 646 A.2d 592, 595 (Pa. Cmwlth. 1994).
Here, the list on which Lieutenant Josey’s name appeared was established on June 2,
2014.       Thus, the list expired on June 1, 2016.           Since Arbitrator Peck’s Award
ordering Lieutenant Josey’s promotion was dated July 27, 2016, after the list had
expired, Arbitrator Peck exceeded his powers by mandating an illegal act.
Accordingly, the trial court properly vacated the Award.5
                For all of the above reasons, the trial court’s order is affirmed.


                                             ___________________________
                                             ANNE E. COVEY, Judge




        5
         “Although the trial court did not rule on this ground, this Court may affirm a trial court’s
order on grounds other than those on which the trial court based its decision.” Twp. of Salem v.
Miller Penn Dev., LLC, 142 A.3d 912, 917 n.4 (Pa. Cmwlth. 2016).
                                                 12
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia                       :
                                           :
                   v.                      :
                                           :
Fraternal Order of Police,                 :
Lodge No. 5,                               :   No. 35 C.D. 2017
                             Appellant     :


                                         ORDER


             AND NOW, this 26th day of March, 2018, the Philadelphia County
Common Pleas Court’s December 21, 2016 order is affirmed.


                                         ___________________________
                                         ANNE E. COVEY, Judge
