                            [J-8-2015] [MO: Todd, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT


MICHAEL G. LUTZ LODGE NO. 5, OF               :   No. 42 EAP 2014
THE FRATERNAL ORDER OF POLICE,                :
                                              :   Appeal from the Order of
                     Appellant                :   Commonwealth Court entered on
                                              :   January 2, 2014 at No. 114 CD 2013,
                                              :   affirming the Order entered on
              v.                              :   December 27, 2012 in the Court of
                                              :   Common Pleas, Philadelphia County,
                                              :   Criminal Division at No. 2165 October
CITY OF PHILADELPHIA,                         :   Term 2011.
                                              :
                     Appellee                 :   ARGUED: May 5, 2015


                                 DISSENTING OPINION


MR. JUSTICE EAKIN                                       DECIDED: December 21, 2015
       The instant question is whether notification procedures were reasonably

subsumed within the issues properly submitted to the arbitration panel. That Panel,

then the Court of Common Pleas, and then a majority of the Commonwealth Court en

banc all reasoned that the manner of notification was subsumed, and thus properly

submitted and addressed by the Panel, in response to challenges to implementation of

the 2009 Award. As I cannot find such a conclusion was unreasonable, I would affirm.

       The Majority dismisses the lower courts’ “somewhat technical reasoning” that

the manner of notification was at issue in 2009. See Majority Slip Op., at 18. The Panel

explicitly retained jurisdiction in Section 22 of the 2009 Award, and thus the FOP

properly asked the Panel to resolve issues surrounding implementation of Section 14 of

the award. The FOP’s dissatisfaction with the result claims the relief granted went

beyond the relief requested, but interest arbitration panels are not limited to granting the
relief requested by the party raising the issue. See City of Philadelphia v. Int’l Ass’n of

Firefighters, Local 22, 999 A.2d 555, 565 (Pa. 2010) (explaining arbitration panels’

authority to decide issues presented by parties).

       The Majority claims timing of          the notification and premium overtime

compensation are entirely distinct from the manner of notification and thus not

reviewable by the Panel. Certainly timing and manner are not synonymous, but neither

are they unrelated. The 2009 Award explicitly provided consequences for failing to

comply with the policy on time and manner of notice, demonstrating the two issues are

intertwined. Further, implementation of the 2009 Award’s new residency requirements,

allowing certain officers to live outside the city limits, would have an obvious effect on

the logistics of notice. If the Department were now obliged to send uniformed officers to

wherever an officer lives, the operational and financial costs to the City could be

significant; without modification, it could mean taking officers off patrols to drive outside

the City simply to hand-deliver court notices.1 In this day of technological sophistication

and ubiquitous cell phones and messaging, the manner of notice, particularly given the

bargained-for expansion in geographic distribution of those to whom notice is given,

seems a proper matter for the Panel — I cannot find that connection unreasonable.

       In my view, the Panel did not exceed its authority in determining the manner of

notification because the question is logically subsumed by issues regarding

implementation of the 2009 Award.        Accordingly, I would affirm the Commonwealth

Court’s order, and must respectfully dissent.



1 If, in the alternative, the police department were to unilaterally use non-uniformed
personnel in place of uniformed officers for such deliveries, the FOP could challenge
such a change as improper removal of bargaining unit work through an unfair labor
practice charge, as delivery by uniformed personnel has long been the practice.



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