                IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Coaldale Borough                                :
                                                :   No. 674 C.D. 2017
               v.                               :
                                                :   Argued: December 4, 2017
Timothy Delaney,                                :
                      Appellant                 :



BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                      FILED: January 4, 2018


               Timothy Delaney (Delaney) appeals from the April 26, 2017 order of the
Court of Common Pleas of Schuylkill County (trial court) which granted the petition
of Coaldale Borough (Borough) to quash Delaney’s request for arbitration.


                               Facts and Procedural History
               The underlying facts in this matter are not in dispute and were summarized
by the trial court as follows. Delaney was the Borough’s Chief of Police. On or about
August 13, 2013, Delaney injured his right hand while testing a taser. On June 25,
2015, Delaney requested a disability pension from the Police Pension Board (Board).1

       1
         Delaney initially filed a civil action with the trial court in January 2015 seeking an order
directing the Borough to pay him disability pension benefits. The Borough filed preliminary
objections alleging that Delaney failed to exhaust his administrative remedies by first filing an
He subsequently requested a hearing before the Board and one was conducted on
March 29, 2016. By decision dated May 23, 2016, the Board denied Delaney’s request
and informed him of his right to appeal within 30 days. Rather than appeal, Delaney
filed a grievance on June 7, 2016, alleging that the denial of his disability pension was
in violation of his Employment Agreement with the Borough. Under this Employment
Agreement, Delaney participated in the Borough’s Police Pension Fund. Additionally,
Article XIV of the Employment Agreement provides for a grievance and arbitration
procedure to resolve all disputes arising between Delaney and the Borough. Counsel
for Delaney later sent a letter to the Borough requesting that the parties bypass the
grievance procedure and proceed directly to arbitration. (Trial court op. at 2.)
                However, the Borough responded by filing a petition with the trial court
to quash Delaney’s arbitration request on December 30, 2016. In this petition, the
Borough acknowledged the Employment Agreement as well as a local ordinance
adopting the Borough’s Police Pension Plan. Nevertheless, the Borough alleged that
the Board was a local agency operating in accordance with its Police Pension Plan and
the Local Agency Law,2 that the Board convened a hearing and issued a written
decision, and that Delaney’s sole remedy was to file an appeal with the appropriate
court, i.e., the trial court, within 30 days of the Board’s decision in accordance with the
Local Agency Law. The Borough noted that it lacked the statutory or contractual
power to overrule the Board’s decision. (Trial court op. at 1; R.R. at 6a-12a.)




application for pension benefits with the Board. By order dated May 10, 2015, the trial court sustained
the Borough’s preliminary objections and dismissed Delaney’s civil action. In this order, the trial
court noted that the local pension ordinance required Delaney to file an application for benefits with
the Board. (Reproduced Record (R.R.) at 7a-8a, 36a.)

       2
           2 Pa.C.S. §§105, 551-55, 751-54.
                                                  2
               On January 3, 2017, the trial court issued a rule to show cause directing
Delaney to file an answer to the Borough’s petition within 20 days, advising that the
matter would be decided under Pa.R.C.P. No. 206.7 (relating to procedure after
issuance of rule to show cause), requiring depositions to be completed within 60 days,
and noting that either party could request oral argument pursuant to the local rules of
civil procedure. Delaney filed a timely answer denying that his sole remedy was an
appeal under the Local Agency Law, but acknowledging that he was advised of his
right to appeal within 30 days of the date of the Board’s decision.3                (R.R. at 54a-61a.)
               On April 13, 2017, the Borough filed a praecipe for certification noting
that fact-finding was complete and/or unnecessary, and requesting that its petition be
transferred to a judge for disposition. Around the same time, the Borough filed a brief
in support of its petition with the trial court. Delaney was not given an opportunity to
file a responsive brief. (R.R. at 63a-79a.)
               Instead, by order dated April 26, 2017, the trial court granted the
Borough’s petition and quashed Delaney’s request for arbitration. In its order, the trial
court cited section 752 of the Local Agency Law, which provides,

               Any person aggrieved by an adjudication of a local agency
               who has a direct interest in such adjudication shall have the
               right to appeal therefrom to the court vested with jurisdiction
               of such appeals by or pursuant to Title 42 (relating to
               judiciary and judicial procedure).
2 Pa.C.S. §752. Additionally, the trial court cited section 5571(b) of the Judicial Code,
which provides that “an appeal from a tribunal or other government unit to a court . . .
must be commenced within 30 days after the entry of the order from which the appeal

       3
         However, Delaney disputed the Borough’s allegation that the Board decision referenced the
30-day appeal period under the Local Agency Law. Instead, Delaney noted that the Board’s decision
simply stated that he had 30 days to file an appeal pursuant to Title 42 (relating to judicial procedure).
(R.R. at 58a.)
                                                    3
is taken . . . .” 42 Pa.C.S. §5571(b). The trial court proceeded to state that the Board
was a local agency and governed by the Local Agency Law, citing this Court’s decision
in City of Arnold v. Wage Policy Committee of Arnold Police Department, 138 A.3d
719 (Pa. Cmwlth. 2016), rev’d, 171 A.3d 744 (Pa. 2017). Citing City of Arnold and
Groman v. Officers’ & Employees’ Pension Board, 451 A.2d 789 (Pa. Cmwlth. 1982)
(holding that a city pension board was a local agency and the exclusive remedy from a
decision of such board lies with an administrative appeal under section 752 of the Local
Agency Law), the trial court concluded that Delaney’s exclusive remedy for the denial
of his disability pension was to appeal the Board’s determination within 30 days
pursuant to the Local Agency Law.
             Delaney thereafter filed a notice of appeal with the trial court, alleging
that the trial court erred in applying City of Arnold and Groman to this matter when the
Employment Agreement with the Borough mandated that all disputes arising
thereunder proceed to arbitration. Delaney also alleged that he was prejudiced by the
trial court’s failure to provide him with an opportunity to file a responsive brief in
opposition to the Borough’s petition and brief. The trial court issued an opinion in
support of its order explaining that the facts were not in dispute and that only issues of
law remained to be decided. The trial court stated that Delaney was entitled to a
pension plan under the Employment Agreement and he was provided with the same.
The trial court reiterated that, under City of Arnold and Groman, Delaney’s exclusive
remedy from the Board’s adverse determination was an appeal under the Local Agency
Law. The trial court noted that, under the circumstances, i.e., since Delaney did not
raise any material issues of fact in his response to the Borough’s petition to quash and
the only issue before it concerned a matter of law, a remand to allow Delaney to file a
brief was unnecessary.


                                            4
                                            Discussion
               On appeal,4 Delaney reiterates the issues raised before the trial court,
relying extensively on our Supreme Court’s recent reversal of this Court’s decision in
City of Arnold.5
               In City of Arnold, Thomas Cimino died in April 2002, after serving as a
City of Arnold police officer for 11.77 years. In May 2002, the City’s Controller
informed his widow, Pamela Cimino (Widow), that she was entitled to a death/survivor
benefit of $1,949.11 per month, which was 50% of Thomas Cimino’s annual
compensation at the time of his death. This death benefit was reconfirmed in a July
2003 letter from the City’s Controller to Widow and was consistent with provisions of
a collective bargaining agreement (CBA) entered into by the City of Arnold and the
bargaining representative of the City’s police officers. In 2014, the City’s police
pension board advised Widow that her benefit had been miscalculated; that she was
only entitled to 50% of the monthly benefit, or $974.55 per month; that she received
an overpayment of $138,386.10 as a result of the miscalculation; and that it would
deduct $10.00 per month from her future benefit payments to recoup said overpayment.




       4
          Our scope of review is limited to determining whether the trial court committed an error of
law, an abuse of discretion, or a violation of constitutional rights. Ray v. Brookville Area School
District, 19 A.3d 29, 31 n.3 (Pa. Cmwlth. 2011).

       5
         The Borough asserts that Delaney has improperly raised two issues in his brief that were not
raised before the trial court and, hence, are waived. More specifically, the Borough asserts that
Delaney raised for the first time in his brief an issue regarding a right to choose between arbitration
and the Local Agency Law, a so-called election of remedies, as well as an issue regarding the lack of
any express requirement in the Local Agency Law that appeals be filed with the common pleas court.
However, we believe that these issues are subsumed within the arguments raised by Delaney both
before the trial court and this Court and, thus, waiver does not apply to the same.
                                                  5
               The police officers’ bargaining representative grieved the action on
Widow’s behalf pursuant to the CBA and the matter was submitted to an arbitrator.
The arbitrator ultimately sustained the grievance. The City’s police pension board filed
a petition to vacate the arbitrator’s award with the common pleas court, but said petition
was denied. The City’s police pension board then appealed to this Court. By decision
and order dated May 20, 2016, we reversed the trial court’s order, concluding that
Widow’s right to a survivor benefit was “not derivative of [her late husband’s] rights
under the CBA, but an independent right under the City’s pension plan.” Id., 138 A.3d
at 725. We held that, as the matter involved a decision of the City’s police pension
board, a local agency subject to the provisions of the Local Agency Law, the arbitrator
lacked subject matter jurisdiction over the dispute and the common pleas court erred in
failing to vacate the arbitration award.
               However, our Supreme Court recently reversed this Court’s decision,
holding that the arbitrator had subject matter jurisdiction to adjudicate a dispute
between the police officers’ bargaining representative and the City over a Widow’s
pension benefit. The Supreme Court noted that section 1 of the Policemen and Firemen
Collective Bargaining Act,6 commonly referred to as Act 111, states that “policemen
or firemen . . . have the right to bargain collectively with their public employers
concerning the terms and conditions of their employment, including . . . retirement,
pensions and other benefits . . . .” 43 P.S. §217.1. The Supreme Court also referenced
section 4(a) of Act 111, which provides, in part, that disputes may be resolved by
arbitration “[i]f 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 . . . .” 43 P.S. §217.4(a). Additionally, the Supreme Court cited section


      6
          Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§217.1-217.10.
                                                 6
14303(f) of the Third Class City Code, 11 Pa.C.S. §14303(f), which authorizes the
payment of a pension benefit to a police officer who dies while not in the line of duty.
Further, the Supreme Court noted local ordinances enacted by the City that provide for
a reduced survivor benefit for a spouse or child of the retiree, which were incorporated
into the CBA between the police officers and the City.
             The Supreme Court concluded that the arbitrator had subject matter
jurisdiction to adjudicate this dispute between the police officers’ bargaining
representative and the City because the survivor benefit afforded to Widow, as a
surviving spouse of a deceased police officer, was incorporated into the parties’ CBA.
The Supreme Court stated that its conclusion was based on the express language of Act
111, the Third Class City Code, the City’s pension ordinances, and the parties’ CBA.
The Supreme Court explained that the dispute in the case involved the amount of a
survivor spouse’s pension benefit, which was part of a police officer’s bargained-for
pension benefits under the parties’ CBA, and, therefore, was arbitrable. For this reason,
the Supreme Court rejected this Court’s holding that Widow’s exclusive remedy was
under the Local Agency Law.
             The Borough attempts to distinguish City of Arnold from the present case
by noting that the former involved a unilateral determination by the city, not the local
pension board, to reduce Widow’s benefits, and there was no opportunity afforded
Widow to contest the city’s decision, let alone any adjudication in that case. Because
Delaney sought and obtained an adjudication from the Police Pension Board, the
Borough asserts that he waived any jurisdiction the arbitrator may have otherwise had
to resolve the dispute and was limited to the exclusive remedy of an appeal under the
Local Agency Law. In other words, once an adjudication is rendered, the Borough




                                           7
avers that the arbitrator is no longer in a position of interpreting the contract and should
not be permitted to reverse/overrule the decision of a local agency.
             However, City of Arnold does not support these assertions by the Borough.
In City of Arnold, the city’s unilateral reduction in Widow’s survivor benefits triggered
the grievance filed on her behalf by the police officers’ bargaining representative.
Here, the triggering event was the Board decision denying Delaney a disability pension.
Indeed, without this decision, Delaney had nothing to grieve. The fact that he needed
to obtain a decision from the Board prior to initiating the grievance process does not
constitute a waiver of the arbitrator’s jurisdiction or otherwise limit Delaney’s remedy
to an appeal under the Local Agency Law. While the procedural posture of this case
differs in that regard from City of Arnold, the latter provides sufficient guidance and
dictates the outcome herein.
             Our Supreme Court’s focus in City of Arnold was Widow’s right to a
survivor’s benefit being derivative of her late spouse’s rights under the CBA in that
case. In other words, the Supreme Court concluded that Widow’s right to survivor
benefits was incorporated into that CBA, stressing that a pension benefit was a specific
term or condition of employment arising from her late spouse’s employment as a city
police officer. The Supreme Court also highlighted the fact that the parties agreed to
submit any disputes arising under the CBA in that case to mandatory grievance
arbitration. Finally, the Supreme Court expressly held that the arbitrator had subject
matter jurisdiction over the dispute and that Widow was not limited to a remedy in the
nature of an appeal under the Local Agency Law. Similar facts are presented in this
case.
             Herein, the Borough enacted Ordinance No. 2004-4 on April 14, 2004,
which established a police pension plan for police employees who are discharged by


                                             8
reason of age or a service disability. (R.R. at 23a-34a.) Section 4.4 of this Ordinance
specifically provides for a permanent, service-related disability retirement for eligible
pension plan participants.      (R.R. at 27a.)    Section 4.4(c)(2) provides that the
determination of whether a police officer is totally and permanently disabled shall be
made by the Borough or its designated agent, in this case, the Board. Id. Additionally,
as noted above, Delaney and the Borough are parties to an Employment Agreement,
which includes Delaney’s right to participate in, and to be entitled to benefits from, the
police pension plan. See Article IX of the Employment Agreement; R.R. at 18a.
Article XIV of the Employment Agreement specifically states that “all matters
concerning this Agreement” shall be decided via a grievance and arbitration procedure
set forth in that Article. (R.R. at 20a.)
             The Employment Agreement entered into by Delaney and the Borough is
similar to the CBA in City of Arnold, as both set forth a pension benefit for eligible
employees and both direct that any matters thereunder be submitted to a grievance and
arbitration procedure. Moreover, Delaney’s right to pension disability benefits, much
like Widow’s right to survivor benefits in City of Arnold, is plainly derivative of this
Employment Agreement. Given that the widow of an eligible member of the police
was entitled to file a grievance following a determination by the City’s police pension
board in City of Arnold, certainly Delaney, the Borough’s police chief, a covered
member of the Borough’s police pension plan pursuant to the Ordinance, and a party
to the Employment Agreement, must likewise be entitled to arbitrate the matter of his
service-related disability pension.


                                       Conclusion




                                            9
               Because our Supreme Court’s decision in City of Arnold is controlling
herein, thereby rendering the matter of Delaney’s service-related disability pension
arbitrable, the trial court erred in granting the Borough’s petition to quash Delaney’s
request for arbitration.
               Accordingly, the order of the trial court is reversed.7




                                                   ________________________________
                                                   PATRICIA A. McCULLOUGH, Judge




       7
          Given our disposition above, we need not address Delaney’s argument that he was prejudiced
by the trial court’s failure to provide him with an opportunity to file a responsive brief in opposition
to the Borough’s petition and brief.
                                                  10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Coaldale Borough                         :
                                         :   No. 674 C.D. 2017
            v.                           :
                                         :
Timothy Delaney,                         :
                   Appellant             :




                                    ORDER


            AND NOW, this 4th day of January, 2018, the order of the Court of
Common Pleas of Schuylkill County, dated April 26, 2017, is hereby reversed.




                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge
