Michael G. Lutz Lodge, Aplt. v. City of Phila.

[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 BAER DECIDED: December 21, 2015
I agree with the majority that an interest arbitration panel’s authority is limited to
entertaining issues properly submitted to the panel, as well as questions reasonably
subsumed within those issues. I respectfully dissent, however, from the majority’s
application of that settled law to the facts presented. Here, the 2009 interest arbitration
award provided for overtime pay to police officers who did not receive timely notice of
court appearances scheduled to occur on their days off. Notably, the panel expressly
retained jurisdiction to resolve disputes regarding implementation of the 2009 award.
Various disputes, in fact, arose, one of which involved the method of providing notice of
court appearances, particularly because the 2009 award also permitted certain police
officers to live outside the City of Philadelphia, thereby making personal notice
impracticable.1
In my view, which is consistent with the rulings of the 2011 interest arbitration
panel, the trial court, and the Commonwealth Court below, the issue of how notice
should be provided clearly arose from the implementation of the 2009 award, which
required timely notice in the first instance upon penalty of overtime payments.
Accordingly, I do not believe that the 2011 interest arbitration panel exceeded its
authority by adjudicating the precise implementation issues that it retained jurisdiction to
resolve.
As explained by the majority, the 2009 interest arbitration award had three
provisions relevant to the instant case. First, Section 14 of the award provided:
Effective January 1, 2010, officers who do not receive notification at least
48 hours in advance of the time they are directed to appear for a required
court appearance (other than preliminary hearing) scheduled for a date
the officer is not scheduled to work, shall be paid a minimum of 4 hours
overtime at a rate of 2.5 times the employee’s regular rate.
2009 Interest Arbitration Award dated December 18, 2009, § 14. Section 14 was
intended to address concerns that police officers were receiving notices to appear in
court the night before or the morning of a scheduled hearing on an officer’s day off,
thereby disrupting the officer’s personal plans for that day. The next relevant provision
in the 2009 award stated that officers with five or more years of service as a police
officer no longer have to reside in the City of Philadelphia. Id. § 6. Finally, and most
1 In this regard, it is important to appreciate that so long as all police officers lived within
City boundaries, officers conducting roving patrols could, if necessary, deliver notice at
officers’ homes while performing routine police activities. When the officers were
permitted to live outside the City’s confines, however, personal notice would require
officers to travel to whatever distant points an officer chose to reside, potentially placing
a substantial and costly burden upon the City.
[J-8-2015] [MO: Todd, J.] - 2
significantly, Section 22 of the 2009 award provided that the interest arbitration panel
“shall retain jurisdiction over this Award in order to resolve any disputes regarding
implementation of its terms.” Id., § 22. The panel presumably retained jurisdiction to
assist the parties, as an extension of the interest arbitration process, in resolving issues
that were not identifiable prior to entry of the award and which, instead, surfaced as a
direct result of a provision of the award.
The record establishes that both parties invoked the interest arbitration panel’s
retained jurisdiction to procure review of issues arising from the implementation of the
2009 award. In March of 2010, the Michael G. Lutz Lodge No. 5 of the Fraternal Order
of Police (FOP) specifically requested that the interest arbitration panel exercise its
authority under Section 22 to resolve implementation issues that had arisen regarding
Section 14’s grant of overtime for insufficient notice to police officers. Specifically, the
FOP objected to a statement issued by the Philadelphia Police Department
(Department) indicating that if an officer was notified at least 48 hours before a court
appearance on a scheduled day off and the case was continued until the next day, the
officer would not be entitled to overtime, even if additional notification for the next day
was not given. The FOP objected to the Department’s reasoning that, under those
circumstances, there was no disruption to the police officer’s personal schedule
because the officer received sufficient notice.
In response, the City raised its own implementation issue regarding court notices
mandated by the 2009 award, and advocated for electronic delivery of notices through
telephone or email. It contended that Section 14’s requirement that overtime must be
paid to officers notified within 48 hours of court appearances, coupled with Section 6’s
changed residency requirement applicable to enumerated police officers, made it more
difficult and costly to effectuate notice, as discussed in footnote one, supra. A hearing
[J-8-2015] [MO: Todd, J.] - 3
was held, at which both parties provided testimony and evidence in favor of their
respective positions on the delivery of notice issue.
The majority acknowledges these facts, but concludes that the 2011 interest
arbitration panel exceeded its authority by addressing the manner of notification issue
because the parties did not raise it before the 2009 interest arbitration panel, and
because this issue is not “reasonably subsumed in, or ‘part-and-parcel’ of, the overall
notice compensation question.” Majority Opinion at 18-19. It concludes that “the timing
of notification and premium overtime compensation for an officer’s court appearance are
simply not directly related to, or even dependent upon, the manner of notification.” Id. at
19.
Respectfully, I agree with all of the lower tribunals that considered this matter and
reached the opposite conclusion, finding that the manner of providing notice of court
appearances was a proper subject before the 2011 interest arbitration panel because
the issue arose directly from the implementation of the terms of the 2009 award, which
expressly required 48-hour notice in the first instance. See Decision and Award of
Arbitration Panel, Sep. 16, 2011, at 11 (opining that “the manner of notification is as
much a part of Section 14’s implementation as is the question of what days would the
premium overtime payments cover. Leaving the manner of notification untouched
would be a dereliction in the Board’s responsibility to resolve issues pertaining to the
implementation of the Award’s substance”); Trial Court Opinion, Mar. 6, 2013, at 14-15
(holding that “the issue of how court notices are delivered relates directly to how the
court notification provision is implemented . . . the method of that notification is an
inseparable and inherent part of the process”); Commonwealth Court Opinion, Jan. 2,
2014, at 15 (holding that the 2011 interest arbitration panel proceeding, which examined
[J-8-2015] [MO: Todd, J.] - 4
the method of affording notice of court appearances “directly related to the 2009 Award
of mandatory premium overtime in instances when the City fails to give proper notice”).
I further depart from the majority’s conclusion that because the 2009 award did
not address how notices should be delivered, the 2011 interest arbitration panel
exceeded its powers in entertaining the inquiry. The lack of guidance on how the City
must provide the notice to avoid the payment of substantial overtime is precisely why
the issue of delivery of notice constitutes an issue regarding implementation of the 2009
award, which the interest arbitration panel retained jurisdiction to resolve. Moreover,
during the proceedings leading up to the 2009 award, the City argued vigorously against
requiring the 48-hour notice of court appearances. Thus, it had no reason to propose
changes to existing notice procedures until after receiving the arbitration panel’s
decision. As the trial court noted, “[s]ince the full impact of the 2009 Award could not be
determined until it was actually issued, the FOP’s complaint that the City failed to
address and seek changes to the practice before the 2009 Award was issued and
implemented was absurd.” Trial Court Opinion at 15.
Accordingly, I would hold that the 2011 interest arbitration panel did not exceed
its authority in addressing the delivery of notice issue, but decided an implementation
issue properly before it pursuant to its retained jurisdiction. Given our narrow certiorari
standard of review in Act 111 arbitration cases, I would affirm the order of the
Commonwealth Court, which affirmed the trial court’s denial of the FOP’s petition to
vacate the 2011 interest arbitration award.
[J-8-2015] [MO: Todd, J.] - 5