City of Philadelphia v. PLRB ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. :
:
Pennsylvania Labor Relations Board, : No. 1052 C.D. 2019
Respondent : Submitted: November 12, 2020
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 14, 2020
The City of Philadelphia (City) petitions this Court for review of the
Pennsylvania Labor Relations Board’s (Board) July 16, 2019 order (Final Order)
dismissing in part and sustaining in part the Fraternal Order of Police, Lodge No. 5’s
(FOP) exceptions to the Hearing Examiner’s August 16, 2018 Proposed Decision
and Order (PDO), and making the PDO absolute and final, as modified. There are
four issues before this Court: (1) whether the City has standing to appeal from the
Board’s Final Order; (2) whether the Board’s Final Order is supported by substantial
evidence; (3) whether the Board erred by concluding that confidentiality is a term
and condition of employment and was at least as equally important and weighty as
the City’s interest; and (4) whether the Board erred by holding that the City’s interest
in fostering public trust in the police would not be unduly burdened by negotiating
the City’s policy regarding releasing the names of police officers involved in
shootings. After review, the City’s petition for review (Review Petition) is quashed.
On May 29, 2015, the City’s Police Department’s (Police Department)
Research and Planning Unit forwarded to the FOP, via electronic mail, Use of Force
Directives (Directives) that the City’s Police Commissioner (Police Commissioner)
had revised and approved.1 The Directives authorized the City to publicly release
the names of police officers involved in police officer-involved shootings. The
Directives were not published or codified.
On June 2, 2015, the FOP filed with the Board a Charge of Unfair Labor
Practices, docketed at Case No. PF-C-15-42-E (Case 42-E), as amended on July 2,
2015, alleging therein that the City violated Section 6(1)(a) and (e) of the
Pennsylvania Labor Relations Act (PLRA),2 as read in pari materia with the act
commonly referred to as Act 111,3 by unilaterally implementing the Directives (Case
42-E Charge). The Police Department subsequently decided to submit the Directives
to the FOP for further review. On July 2, 2015, Lieutenant Kevin Long, on behalf
of the Police Commissioner, emailed to the FOP a protocol for releasing the names
of police officers involved in shootings.
On July 8, 2015, the FOP filed a Charge of Unfair Labor Practices,
docketed at Case No. PF-C-15-53-E (Case 53-E) with the Board, alleging therein
that the City violated Section 6(1)(a), (c),4 and (e) of the PLRA, as read in pari
materia with Act 111, by refusing to provide protection for a police officer after
his/her name was released to the public following an officer-involved shooting (Case
53-E Charge). The Board Secretary issued a Complaint and Notice of Hearing for
1
Prior thereto, the City did not have a formal written policy regarding the release of names
of police officers involved in shootings. Instead, its longstanding practice was that the City would
not release an officer’s name unless the officer had been shot or was cited for heroic actions.
2
Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.6(1)(a), (e).
3
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.12.
4
43 P.S. § 211.6(1)(c).
2
each Charge (collectively, Charges), and Case 42-E and Case 53-E (collectively,
Cases) were consolidated.
On August 27, 2015, the Police Department’s Research and Planning
Unit forwarded to the FOP, via electronic mail, revised and renumbered Directives
that the Police Commissioner had approved. On September 18, 2015, Directives
10.1 through 10.4 became effective.
The Hearing Examiner held hearings on September 26, 2016, and
December 11, 2017, during which the parties were afforded a full opportunity to
present evidence. Based on the testimony and evidence presented, the Hearing
Examiner found that the Case 42-E Charge was premature because it was filed before
the Directives became effective. As a result, the Hearing Examiner determined that
the Case 42-E Charge should be dismissed as a matter of law.5 Notwithstanding, the
Hearing Examiner concluded that, even if the Case 42-E Charge was timely, the
name-release protocol involved matters of inherent managerial prerogative. The
Hearing Examiner further found that the FOP failed to sustain its burden of proof
for the Case 53-E Charge and, thus, dismissed it and rescinded the complaint related
thereto.
The FOP filed exceptions to the PDO, therein asserting, inter alia, that
the Hearing Examiner erred by concluding: the Case 42-E Charge was premature;
the Directives and the name-release policy were a management prerogative; the FOP
failed to meet its burden of proof in Case 53-E to demonstrate the City was
5
This Court has explained that “the Board will dismiss a refusal to bargain charge as
premature when an employer’s unilateral action has not actually effected a change in the
employees’ conditions of employment or if the charge has been filed before the effect of such a
change can be determined.” Dormont Borough v. Pa. Labor Rels. Bd., 794 A.2d 402, 408 n.17
(Pa. Cmwlth. 2002); see also Ass’n of State Coll. & Univ. Faculties v. Pa. Labor Rels. Bd., 661
A.2d 898, 901 (Pa. Cmwlth. 1995) (A “charge will be dismissed as premature when the action at
issue has not been implemented, leaving the [Board] unable to determine its relative impact on the
parties involved and unable to dispositively rule upon whether an unfair practice has occurred.”).
3
unlawfully motivated in failing to provide protection to a police officer whose name
was released to the public; and the Case 53-E Charge should be dismissed because
the FOP failed to meet its burden of demonstrating that the City repudiated a
provision of the governing collective bargaining agreement. See Reproduced
Record at 30a-32a.
On July 16, 2019, the Board issued its Final Order, concluding that the
Hearing Examiner properly determined that the Case 42-E Charge was prematurely
filed, and correctly dismissed the Case 53-E Charge because the City did not violate
the PLRA.
With respect to the FOP’s exception to the Hearing Examiner’s
conclusion that the City’s Directives and the protocol for releasing the names of
officers involved in shootings were matters of inherent managerial prerogative, the
Board concluded: “[H]ad the [Case 42-E Charge] not been prematurely filed before
implementation, we would find that the City’s protocol for release of police
officer[s’] names when they were involved in a shooting would be a mandatory
subject of bargaining[.]” Final Order at 6-7. The City appealed to this Court.6 On
September 17, 2019, the Board filed a Motion to Dismiss the Petition for Review
(Motion), arguing therein that, as the prevailing party, the City is not aggrieved and
lacks standing to appeal; therefore, the City’s Review Petition should be dismissed.
On October 21, 2019, this Court ordered the parties to address the issue of the City’s
standing to appeal in their principal briefs on the merits.
Preliminarily, before this Court reviews the merits of the City’s appeal,
we must address the Board’s contention that the City lacks standing to appeal
because the City, as the prevailing party below, is not aggrieved by the Board’s Final
Order.
6
On September 3, 2019, the FOP intervened in this matter.
4
In its Review Petition, the City admits:
The [Board] properly concluded that both [C]harges
should be dismissed as a matter of law because they were
filed prematurely, the City has a managerial prerogative to
set its use of force policies, and it did not retaliate against
officers who had moved out of the City in the protection
afforded to them if their names were released. The City
does not challenge those portions of the Final Order.
Review Petition at 3 n.1. Thus, the City challenged only the Board’s discussion,
analysis and conclusion that “the City’s protocol for release of police officer[s’]
names when they were involved in a shooting would be a mandatory subject of
bargaining[.]” Final Order at 6-7; see Review Petition at 3-5.
The law is well established:
Only an aggrieved party can appeal from an order entered
by a lower court. A prevailing party that disagrees with
the legal reasoning of an order or a court or agency or
may have had a particular issue decided against it lacks
standing to appeal because it is not adversely affected by
the order.
Maple St. A.M.E. Zion Church v. City of Williamsport, 7 A.3d 319, 322 (Pa. Cmwlth.
2010) (italic and underline emphasis added); see also Allentown Patriots, Inc. v. City
of Allentown, 162 A.3d 1187, 1193 n.10 (Pa. Cmwlth. 2017) (“[A] prevailing party
[that] disagrees with the legal reasoning of a court’s determination of a legal issue
lacks standing to appeal because the party is not adversely affected by the order.”);
In re Chester Cnty. Outdoor, LLC, 64 A.3d 1148 (Pa. Cmwlth. 2013); Hartman v.
City of Allentown, 880 A.2d 737 (Pa. Cmwlth. 2005).
The City nevertheless argues that it has standing to challenge the
Board’s legal analysis and conclusion that “the City’s protocol for release of police
officer[s’] names when they were involved in a shooting would be a mandatory
subject of bargaining[,]” despite that it prevailed before the Board. Final Order at
5
6-7. Specifically, the City asserts that it is aggrieved because “the Board’s ruling on
the release-of-names issue could adversely affect it through lost leverage in
subsequent negotiations . . . where the opposing side will certainly highlight the
Board’s decision here.” City Br. at 30.
In its brief to this Court, the City cites to only a single unreported
opinion in support of its position, Penn Township v. Penn Township Police Ass’n
(Pa. Cmwlth. No. 905 C.D. 2007, filed May 13, 2008).7 In Penn Township, the
police union grieved an employee’s denial of heart and lung benefits. The township
disputed that the issue was arbitrable. Ultimately, the arbitrator held that the dispute
was arbitrable, but the township prevailed on the merits. The township appealed
from the arbitrability decision, and the Court concluded that the township was
aggrieved because it had a direct, immediate, and substantial interest in that
determination, explaining:
[The a]rbitrator here undeniably rendered an adverse
decision to [the t]ownship regarding arbitrability during a
bifurcated proceeding. This decision could not be
appealed until after [the a]rbitrator rendered his opinion
on the merits. Our review here is of the decision on
jurisdiction, and not on the merits; therefore[,] [the
t]ownship had a direct, immediate, and substantial
interest in the jurisdictional determination. Simply
stated, [the t]ownship is an aggrieved party for purposes
of this appeal.
Penn Twp., slip op. at 7 (citation omitted; bold and italic emphasis added). Thus,
the bifurcated Penn Township case is distinguishable from the instant case.
In its reply brief, the City further responds to the Board’s argument that
the City lacks standing. The City claims that, since the Board in its Final Order
7
This Court’s unreported memorandum opinions may be cited “for [their] persuasive
value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).
6
dismissed in part and sustained in part the exceptions, and made the PDO final as
modified, the Board’s mandatory bargaining discussion was not dicta. Citing the
Pennsylvania Supreme Court’s decision in Commonwealth v. Lee, 935 A.2d 865,
867 n.4 (Pa. 2007), defining dicta as “[a] judicial comment made during the course
of delivering a judicial opinion, but one that is unnecessary to the decision in the
case and therefore not precedential . . .” (quoting Black’s Law Dictionary 1100 (7th
ed. 1999)), the City insists that the Board’s mandatory bargaining discussion is
necessary to the Board’s Final Order.
This Court has also explained:
Judicial dictum has been defined as ‘[a]n opinion by a
court on a question that is directly involved, briefed, and
argued by counsel, and even passed on by the court, but
that is not essential to the decision.’ Black’s Law
Dictionary at 465 (emphasis added). Dicta has no
precedential value.
City of Lower Burrell v. City of Lower Burrell Wage & Policy Comm., 795 A.2d
432, 437 n.7 (Pa. Cmwlth. 2002) (italic and bold emphasis added); see also
Stellwagon v. Pyle, 133 A.2d 819, 823 (Pa. 1957) (Language employed in an opinion
“must be related to the issue decided; when it goes beyond that, it must be considered
dictum[.]”); Valley Twp. v. City of Coatesville, 894 A.2d 885 (Pa. Cmwlth. 2006).
Disagreement with dicta does not render a prevailing party aggrieved. See Bldg.
Indus. Ass’n of Lancaster Cnty. v. Manheim Twp., 710 A.2d 141 (Pa. Cmwlth. 1998).
In Building Industry Association, the Building Industry Association of
Lancaster County appealed to this Court from a trial court’s order dismissing its
declaratory judgment action, and challenging a township ordinance which imposed
an impact fee on developers. The township cross-appealed from the order,
challenging dicta in the trial court’s opinion that, if the association had standing to
bring its claim, the trial court would have been inclined to rule for the association.
7
After explaining that only an aggrieved party has standing to appeal, this Court noted
that “the [t]ownship argues that it has been aggrieved by the dicta in the opinion of
the [trial court].” Bldg. Indus. Ass’n, 710 A.2d at 147. In dismissing the township’s
cross-appeal, this Court concluded: “[I]t is clear that [the t]ownship merely
disagreed with the ‘opinion’ of the [trial court] regarding the merits of [the
association’s] complaint. Therefore, we hold that [the t]ownship was not
‘aggrieved’ for purposes of appellate review . . . .” Id. at 148.
Here, the Board decided that the Hearing Examiner properly dismissed
the Charges and, thus, the Board’s Final Order dismissed the Charges in the City’s
favor. Given the Board’s conclusion that the Hearing Examiner properly dismissed
the Case 42-E Charge as premature, the Board’s discussion with respect to
mandatory bargaining was not essential to the Board’s ultimate decision in the
City’s favor and, thus, was dicta. See Stellwagon; City of Lower Burrell. This
conclusion is buttressed by the Board’s hypothetical language, that “had the [Case
42-E Charge] not been prematurely filed before implementation, we would find
that the City’s protocol for release of police officers[’] names when they were
involved in a shooting would be a mandatory subject of bargaining[.]”8 Final Order
8
Curiously, the Board, in the discussion portion of its Final Order, addressed the mandatory
bargaining issue in a hypothetical context and did not explicitly sustain the FOP’s exception on
that issue. Further, the Board concluded the discussion portion, stating:
After a thorough review of the exceptions and all matters of record,
the Hearing Examiner did not err in concluding that the [Case 42-E
Charge] was prematurely filed, and therefore the City did not violate
Section 6(1)(a) and (e) of the PLRA. Additionally, the Hearing
Examiner did not err in Case [53-E] in concluding that the City did
not violate Section 6(1)(a) and (c) of the PLRA when it did not
provide a 24/7 security detail to a police officer who resided outside
of the City. Accordingly, the exceptions filed by the FOP at Case
[42-E] and [Case 53-E] shall be dismissed, and the . . . PDO made
absolute and final.
8
at 6-7 (bold and underline emphasis added). Accordingly, the Board’s opinion on
the merits of the Case 42-E Charge was not essential to the Board’s timeliness
decision but, rather, described what the Board would have decided had it
substantively ruled thereon. Although the City “disagrees with the legal reasoning
of [the Board’s Final Order] or may have had [the mandatory bargaining] issue
decided against it[, the City] lacks standing to appeal because it [wa]s not adversely
affected by the [Board’s Final O]rder.” Maple St. A.M.E., 7 A.3d at 322. Because
the City lacks standing to appeal the Board’s Final Order, this Court quashes the
City’s Review Petition. See Keystone Redevelopment Partners, LLC v. Pa. Gaming
Control Bd., 5 A.3d 448 (Pa. Cmwlth. 2010); see also Capital BlueCross v. Ins.
Dep’t, 937 A.2d 552 (Pa. Cmwlth. 2007), appeal denied sub nom. Sklaroff v. Ario,
963 A.2d 906 (Pa. 2009) (where appellant lacks standing to appeal agency
adjudication, the proper remedy is to quash the petition for review).
For all of the above reasons, the Board’s Motion is granted and the
City’s Review Petition is quashed.9
___________________________
ANNE E. COVEY, Judge
Final Order at 9 (footnote omitted; emphasis added). However, the order portion of the Final Order
states that “the exceptions filed by the [FOP] are hereby dismissed in part, and sustained in part,
and the [PDO], be and hereby is made absolute and final, as modified herein.” Final Order at 9
(emphasis added). Nonetheless, the Charges were dismissed and the City prevailed. Thus, the
City is not aggrieved.
9
Given this Court’s conclusion, we do not reach the City’s substantive issues.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. :
:
Pennsylvania Labor Relations Board, : No. 1052 C.D. 2019
Respondent :
ORDER
AND NOW, this 14th day of December, 2020, the Pennsylvania Labor
Relations Board’s Motion to Dismiss Petition for Review is GRANTED and the City
of Philadelphia’s Petition for Review is QUASHED.
___________________________
ANNE E. COVEY, Judge