County of Allegheny, PA v. Allegheny County Prison Employees Independent Union

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, Pennsylvania :
:
v. :
:
Allegheny County Prison :
Employees Independent Union, : No. 122 C.D. 2020
Appellant : Argued: October 13, 2020
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: November 10, 2020
The Allegheny County Prison Employees Independent Union (Union)
appeals the January 23, 20201 order of the Court of Common Pleas of Allegheny
County (trial court) that granted the County of Allegheny, Pennsylvania’s (County)
Petition to Vacate, Modify or Correct Arbitrator’s Award (Petition to Vacate)
regarding an arbitration award entered under the Public Employe Relations Act
(PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-
1101.2301, that sustained a grievance filed by the Union seeking reinstatement of a
1
The trial court originally issued this order on January 10, 2020, but used the wrong docket
number. See Trial Court Order dated January 10, 2020. Upon learning of the error, the trial court
reissued the January 10, 2020 order under the proper docket number on January 23, 2020. See
Trial Court Order dated January 23, 2020.
terminated corrections officer Union member. Upon review, we reverse the trial
court’s order and reinstate the arbitrator’s award.
The pertinent facts of this matter, while unique, are not meaningfully
disputed by either side. Corrections officer Andrew Ruffner began his employment
as a corrections officer trainee at the Allegheny County Jail in May 2016. See
Decision In Termination Case 2017-0557 dated January 10, 2019 (Arbitration
Award) at 2. As a corrections officer trainee, Ruffner received training on jail
policies and procedures, as well as the responsibilities of a corrections officer. See
Arbitration Award at 2. As part of the corrections officer trainee program, Ruffner
received mandatory training in cardiopulmonary resuscitation (CPR) and First Aid
skills. See id. Ruffner became a full-time corrections officer in April 2017. See id.
As a relatively new employee, Ruffner was a “floater” corrections
officer, meaning that he did not have a single, assigned cell block to which he was
stationed, but was stationed instead wherever he was needed in the jail. See
Arbitration Award at 2 & 10. On the morning of September 17, 2017, Ruffner was
assigned to Housing Unit 4A, a classification area for incoming prison inmates. See
id. While conducting a guard tour at approximately 9:48 a.m., Ruffner discovered
an inmate who had hung himself inside his cell. See id. Ruffner immediately
signaled a medical emergency, cut the inmate down using a cut-down tool, and called
for medical assistance from the Assistant Director of Nursing (ADON), who was
present on the cell block at the time. See id. Ruffner waited at the cell door until
the ADON arrived at 9:51 a.m. See id. Upon arriving, the ADON checked the
inmate’s vital signs but did not attempt to revive the inmate, instead indicating the
inmate was deceased. See id. A minute later, at 9:52 a.m., the Allegheny County
Jail’s Medical Director arrived, administered chest compressions and other
2
emergency medical attention, and revived the inmate, who was then taken to a
hospital. See id. The inmate died several days later. See id.
Based on these facts, the County suspended and ultimately terminated
Ruffner on November 17, 2017. See Arbitration Award at 2-3 & 10; see also Letter
of Matthew Kohler dated November 17, 2017 (Termination Letter), Reproduced
Record (R.R.) at 313a-14a. As reasons for Ruffner’s discharge, the County cited in
the Termination Letter a failure to conduct guard tours pursuant to the Housing Unit
4A post orders,2 violation of Allegheny County Jail Policy 304, Suicide Behavior
Detection and Prevention, Section 8,3 violation of two sections of the County’s Code
2
Housing Unit 4A post order No. 7 requires corrections officers to “[c]onduct[] a guard
tour every fifteen (15) minutes on an irregular schedule utilizing the key card system and marking
it in the log book.” Level 4A Post Orders at 2; Reproduced Record (R.R.) at 329a. Housing Unit
4A post order No. 20 further requires that corrections officers “[e]nsure immediate notification is
made to medical and supervisory staff and life saving measures are taken to save an inmate in a
medical crisis or when causing self-harm.” Level 4A Post Orders at 3; R.R. at 330a.
3
Allegheny County Jail Policy 304, Suicide Behavior Detection and Prevention, Section 8
(concerning suicide security inspections for classification pods), provides that “[l]ife saving
measures will be taken by correctional officer if needed.” Allegheny County Jail Policy 304,
Section 8(F); R.R. at 350a. Allegheny County Jail Policy 304, Section 15 concerns hanging
incidents and provides that:
An employee who discovers an inmate hanging shall:
a) Call for help and for medical assistance. Once help arrives, the
employee shall attempt to reduce tension on the inmate’s neck by
supporting the inmate by the legs while the inmate is facing the
employee.
b) Upon arrival of additional staff, the first employee on the scene
shall continue to support the inmate[’s] body while the second
officer shall use the rescue tool (wonder knife) to cut the inmate
down. The employee shall immediately remove the noose from
around the inmate’s neck.
c) Allegheny County Bureau of Corrections’ employees are trained
in []CPR[] First Aid. As such, correctional employees shall
immediately initiate CPR and/or First Aid, as appropriate, until
3
of Ethics for Allegheny County Jail employees,4 and violation of a directive from
the former Deputy Warden regarding how to conduct guard tours. See Arbitration
Award at 2-3 & 10-11; see also Termination Letter at 1, R.R. at 313a. Effectively,
the violations listed in the Termination Letter comprised two charges against
Ruffner: (1) failure to properly complete and accurately document required guard
tours, and (2) failure to provide emergency/lifesaving measures (CPR) to an inmate
engaged in self-harm. See Arbitration Award at 2-3 & 11; see also Termination
Letter, R.R. at 313a-14a.
The Union filed a timely grievance that challenged Ruffner’s
termination as being unsupported by just cause. See Official Grievance Form filed
September 24, 2017 (Grievance), R.R. at 315a. After the Grievance was denied,5
medical staff relieves the employee. An employee shall
immediately start CPR/First Aid and never wait for medical staff to
arrive before starting life saving measures.
d) Upon arrival, the contractor health service providers shall assume
medical care and decisions and shall continue CPR and other life
saving measures while instructing that 9-1-1 is called.
e) The contractor’s Physician, Nurse Practitioner or Physician
Assistant or nurse remains the authorized medical authority as it
relates to any patient emergency care or decisions until 9-1-1
arrives.
Allegheny County Jail Policy 304, Section 15; R.R. at 354a-55a.
4
The two sections cited by the County are Code of Ethics Section 2.1, which requires
employees to be thoroughly familiar with their duties and responsibilities, and Code of Ethics
Section 2.2, which requires that all employees remain constantly attentive and alert in the
performance of their duties to promote the safety and welfare of all staff, inmates, visitors,
property, and jail interests.
5
The Grievance underwent multiple levels of review and, following hearings at all levels,
was denied at Level 1 on October 3, 2017, at Level 2 on October 16, 2017, and at Level 3 on
November 9, 2017. See Grievance Hearing Report dated October 3, 2017, R.R. at 316a; Grievance
4
the Union sought to arbitrate the matter per the collective bargaining agreement in
force between the County and the Union (CBA).
An arbitrator conducted a hearing on September 19, 2018, at which both
Ruffner and the County were represented by counsel and presented evidence. See
Arbitration Award at 1. On January 10, 2019, the arbitrator issued the Arbitration
Award, which sustained the Grievance in part. See Arbitration Award at 15. The
arbitrator reviewed the facts of the matter and the testimony presented and, first,
determined that Ruffner was not at fault for missing the 9:30 a.m. guard tour.6 See
id. Next, regarding Ruffner’s failure to immediately commence lifesaving measures,
the arbitrator concluded:
[Ruffner’s] misconduct that day was limited to an error in
judgment in failing to immediately begin CPR on the
inmate that he found hanging in his cell. When this error
is considered in conjunction with the misconduct of the
ADON, it is concluded that it was not conduct worthy of
the severe penalty of discharge. Rather, because
[Ruffner’s] delay was not willful misconduct or neglect of
duty, it is appropriately addressed with a three-day
suspension and remedial training[.]
Arbitration Award at 15. Accordingly, the arbitrator sustained the Grievance in part,
reduced Ruffner’s discharge to a three-day suspension, and ordered Ruffner’s
immediate reinstatement with back pay and benefits. See id.
Hearing Report dated October 16, 2017, R.R. at 317a; Letter of Steve Pilarski dated November 9,
2017, R.R. at 318a-19a.
6
This determination does not form part of the appeal of this matter.
5
The County filed a Petition to Vacate, which the trial court granted by
order dated January 23, 20207 (Trial Court Order). See Petition to Vacate, R.R. at
372a-94a; see also Trial Court Order dated January 23, 2020. The Union appealed
the Trial Court Order to this Court.
In its opinion on appeal pursuant to Pennsylvania Rule of Appellate
Procedure (Pa.R.A.P.) 1925(a), the trial court explained that the Arbitration Award
in this matter satisfied the essence test in that the issue presented – termination for
just cause – was within the terms of the CBA and also that the arbitrator’s decision
logically flowed from the terms of the CBA. See Trial Court Pa.R.A.P. 1925(a)
Opinion dated March 4, 2020 (Trial Court Opinion) at 11. However, the trial court
determined that the Arbitration Award violated a public policy against inmate
suicide. See Trial Court Opinion at 11. The trial court found the three-day
suspension imposed by the arbitrator to be “virtually no penalty” under the
circumstances of this case. Id. at 14. The trial court concluded, therefore, that the
arbitrator’s remedy “poses an unacceptable risk of undermining the well-defined
public policy against suicide.” Id. at 14. Accordingly, the trial court vacated the
Arbitration Award. See id. at 1 & 14.
On appeal, the Union claims that the trial court erred by granting the
Petition to Vacate. Specifically, the Union alleges that, given the specific and unique
circumstances of this case, the trial court erred in determining that Ruffner’s three-
day suspension and subsequent reinstatement by the arbitrator violated a well-
defined, dominant public policy that seeks to prevent inmate suicide. See Union’s
Brief at 4, 20-39. We agree.
7
See supra, n.1.
6
Appellate review of a grievance arbitration award is generally
conducted pursuant to the two-part “essence test.” Sch. Dist. of Phila. v. Phila.
Fed’n of Teachers, 164 A.3d 546, 552 (Pa. Cmwlth. 2017). Under the essence test,
[f]irst, the court shall determine if the issue as properly
defined is within the terms of the collective bargaining
agreement. Second, if the issue is embraced by the
agreement, and thus, appropriately before the arbitrator,
the arbitrator’s award will be upheld if the arbitrator’s
interpretation can rationally be derived from the collective
bargaining agreement. That is to say, a court will only
vacate an arbitrator’s award where the award indisputably
and genuinely is without foundation in, or fails to logically
flow from, the collective bargaining agreement.
State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Pro. Ass’n (PSEA-
NEA), 743 A.2d 405, 413 (Pa. 1999); see also Westmoreland Intermediate Unit # 7
v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educ. Support Pers.
Ass’n, PSEA/NEA, 939 A.2d 855, 863 (Pa. 2007) (Westmoreland I). Thus, “[a]n
arbitrator’s award must be sustained ‘if it is based on anything that can be gleaned
as the ‘essence’ of the [collective bargaining agreement].’” Pa. State Sys. of Higher
Educ. v. Ass’n of Pa. State Coll. & Univ. Faculties, 98 A.3d 5, 14 (Pa. Cmwlth.
2014) (quoting Am. Fed’n of State, Cnty. & Mun. Emps., Dist. Council 84, AFL–
CIO v. City of Beaver Falls, 459 A.2d 863, 865 (Pa. Cmwlth. 1983)). Further, “[t]he
essence test does not permit this Court to vacate an arbitrator’s award even if we
disagree with the arbitrator’s interpretation of the [collective bargaining
agreement].” Am. Fed’n of State, Cnty. & Mun. Emps., Dist. Council 87 v. County
of Lackawanna, 102 A.3d 1285, 1290 (Pa. Cmwlth. 2014) (citing Cent. Susquehanna
Intermediate Unit Educ. Ass’n v. Cent. Susquehanna Intermediate Unit # 16, 459
A.2d 889, 890 (Pa. Cmwlth. 1983)). “The essence test is an exceptionally deferential
7
standard, because binding arbitration is a highly favored method of dispute
resolution.” Dep’t of Corr., State Corr. Inst. at Forest v. Pa. State Corr. Officers
Ass’n, 173 A.3d 854, 858 (Pa. Cmwlth. 2017) (citing Northumberland Cnty.
Comm’rs v. Am. Fed’n of State, Cnty. & Mun. Emps., AFL–CIO Local 2016, Council
86, 71 A.3d 367, 374 (Pa. Cmwlth. 2013)). The party challenging an arbitration
award bears the “burden of proving the award does not draw its essence from the
[collective bargaining agreement].” See Pa. State Sys. of Higher Educ., 98 A.3d at
14.
However, even where an arbitration award satisfies the essence test, our
Supreme Court has delineated a discreet exception whereby a reviewing court may
still vacate the award if it violates public policy. See Millcreek Twp. Sch. Dist. v.
Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d 993, 1007-11 (Pa. 2019); see
also Westmoreland I, 939 A.2d at 865. The application of this public policy
exception requires that “[s]uch public policy . . . must be well-defined, dominant,
and ascertained by reference to the laws and legal precedents and not from general
considerations of supposed public interests.” Westmoreland I, 939 A.2d at 866.
Additionally, unlike the deferential standard of review employed to review
determinations under the essence test, appellate review of the public policy
exception “lies in the proper application of the public policy exception to the essence
test. This is a pure question of law; [the] standard of review is de novo, and [the]
scope of review is plenary.” Phila. Hous. Auth. v. Am. Fed’n of State, Cnty. & Mun.
Emps., Dist. Council 33, Local 934, 52 A.3d 1117, 1121 (Pa. 2012). Further, our
Supreme Court has expressly recognized that
not only is the public policy exception “exceptionally
narrow” in its own right, but it is also an exception to the
essence test, which is itself a narrow exception to the
8
doctrine that arbitration awards are final and binding. A
baseline recognition that the public policy exception is a
narrow exception to a narrow exception must guide a
reviewing court’s analysis.
Millcreek Twp. Sch. Dist., 210 A.3d at 1011 (internal citations omitted).
The Supreme Court has articulated a three-part test to determine the
appropriate application of the public policy exception to the essence test. See
Millcreek Twp. Sch. Dist., 210 A.3d at 1011.
First, a reviewing court must identify precisely what
remedy the arbitrator imposed. Next, the court must
inquire into whether that remedy implicates a public
policy that is well-defined, dominant, and ascertained by
reference to the laws and legal precedents and not from
general considerations of supposed public interests.
Finally, the reviewing court must determine if the
arbitrator’s award compels the employer to violate the
implicated policy, given the particular circumstances and
the factual findings of the arbitrator.
Id. (emphasis, internal citations, and internal quotation marks omitted). The
Supreme Court has further emphasized that “the arbitrator’s interpretation of the
contract controls during this entire analysis, which is only triggered upon the
reviewing court’s determination that the award satisfies the essence test, and should
be upheld absent a clear violation of public policy.” Id. Moreover, “[t]he burden is
on the party that opposes the award to demonstrate that it violates public policy.”
Id.
The instant matter involves Article XVIII of the CBA, which states that
“[t]he Employer has the right to discharge or suspend any employee for just cause.”
CBA at 34; R.R. at 233a. In reviewing the Arbitration Award, the trial court
9
determined that the essence test was satisfied because the issue in this case was
within the terms of the CBA and the Arbitration Award was not without foundation
in the CBA. See Trial Court Opinion at 11. Neither party disputes the trial court’s
conclusion that the essence test has been met. Therefore, the only question presently
before this Court is whether the public policy exception to the essence test applies
to this case. To make this determination, we review the facts of this case pursuant
to the three-part Millcreek test.
1. The precise remedy imposed by the arbitrator.
The precise remedy imposed by the arbitrator for consideration in this
matter was a reduction of Ruffner’s termination to a three-day unpaid suspension
with back pay. See Arbitration Award at 15.
2. Whether the remedy implicates a well-defined, dominant public policy.
Next, as the party that opposed the Arbitration Award, the County bears
the burden of demonstrating that the Arbitration Award remedy implicates public
policy. See Millcreek Twp. Sch. Dist., 210 A.3d at 1011. As stated supra, in order
for the public policy exception to the essence test to apply, the alleged public policy
involved “must be well-defined, dominant, and ascertained by reference to the laws
and legal precedents and not from general considerations of supposed public
interests.” Westmoreland I, 939 A.2d at 866.
The County alleges that a well-defined public policy against prison
officials allowing prisoner suicide exists and is applicable to this matter. See
County’s Brief at 16-21. To carry its burden of establishing the existence of this
policy, the County directs the Court’s attention to Department of Public Welfare,
10
Farview State Hospital v. Kallinger, 580 A.2d 887 (Pa. Cmwlth. 1990), which noted
Pennsylvania’s strong public policy against the commission of suicide in concluding
that a prison could force feed an inmate on hunger strike to prevent his death, and
18 Pa.C.S. § 508(d), which justifies the employment of force by law enforcement to
prevent the commission of a crime or a suicide.8 The trial court also cited Kallinger
to note the existence of a well-defined, dominant policy seeking to prevent prison
suicide. See Trial Court Opinion at 11-12. While it attempts to distinguish the facts
of Kallinger from the instant matter, the Union does not argue that a public policy
seeking the prevention of suicide by inmates does not exist, see Union Brief at 33-
39, and we have little trouble agreeing that such a well-defined, dominant policy
exists in Pennsylvania.
3. Whether the Arbitration Award compels violation of a well-defined, dominant
public policy.
The crux of whether the public policy exception to the essence test is
applicable to the instant matter revolves around the third prong of the Millcreek test:
whether the remedy fashioned by the arbitrator violated, or would cause the County
8
18 Pa.C.S. § 508(d) provides, in relevant part:
(d) Use of force to prevent suicide or the commission of crime--
(1) The use of force upon or toward the person of another is
justifiable when the actor believes that such force is immediately
necessary to prevent such other person from committing suicide,
inflicting serious bodily injury upon himself, committing or
consummating the commission of a crime involving or threatening
bodily injury, damage to or loss of property or a breach of the peace
....
18 Pa.C.S. § 508(d).
11
to violate, the well-defined, dominant public policy seeking to prevent prison
suicide. We find that it does not.
As this Court has explained:
[C]ourts are to give arbitration awards deference and are
not to second-guess an arbitrator’s findings of fact or
interpretations. But these awards are not entitled to a level
of devotion that makes a mockery of the dominant public
policy . . . .
Neshaminy Sch. Dist. v. Neshaminy Fed’n of Tchrs., 171 A.3d 334, 340 (Pa. Cmwlth.
2017) (internal citations and quotation marks omitted). In evaluating whether an
arbitration award violates a dominant public policy, reviewing courts consider “both
aggravating and mitigating factors in determining whether an award poses an
unacceptable risk that a clear public policy will be undermined if the award is
implemented.” Id. (internal quotation marks and brackets omitted); see also Pa.
State Sys. of Higher Educ., Lock Haven Univ. v. Ass’n of Pa. State Coll. & Univ.
Faculties, 193 A.3d 486, 500 (Pa. Cmwlth. 2018) (same). Courts have found
arbitration awards properly vacated pursuant to the public policy exception to the
essence test in cases where, despite proven explicit and continuous conduct
amounting to sexual harassment in contravention of Pennsylvania’s public policy
against such harassment, arbitration remedies imposed very little punishment. See
Neshaminy Sch. Dist., 171 A.3d at 343 (20-day suspension with back pay violated
public policy against sexual harassment); see also Phila. Hous. Auth., 52 A.3d at
1128 (award granting immediate reinstatement with back pay in the face of
“egregious” conduct amounting to sexual harassment makes a mockery of public
policy against sexual harassment). When considered in the light of the very specific
12
and unusual facts presented herein, the arbitrator’s award does not make a mockery
of the dominant policy to prevent prisoner suicide.
In explaining the Arbitration Award remedy in relation to Ruffner’s
failure to immediately initiate lifesaving measures on the prospective inmate suicide,
the arbitrator, as the finder of fact, stated as follows:
After cutting down the inmate, [Ruffner] left the cell to
call for the ADON and then waited outside of the cell for
the ADON to arrive. The surveillance evidence
documents that he did not attempt to start CPR on his own,
despite policies and training that required him to
immediately start CPR on an inmate in need. [Ruffner’s]
explanation was that he believed the inmate to be deceased
and that he was waiting for the ADON to arrive. With the
County’s policies and training requiring immediate CPR
or First Aid, the question is whether [Ruffner’s]
explanations excuse his failure to immediately act.
The surveillance evidence documents that after cutting
down the inmate, [Ruffner] began waiting for the ADON
outside the cell at 9:49:47 a.m. Despite being in the unit
and aware of the medical emergency, the ADON
responded casually, taking 1 minute and 23 seconds to
make his way to the inmate’s cell by 9:51:10 a.m. The
County determined this delay to be totally unacceptable,
with the ADON being discharged for his callous conduct
and neglect of duty. With the ADON being held
responsible, the County cannot fully blame [Ruffner] for
the same conduct. As a Corrections Officer, [Ruffner] was
not medical personnel. He also knew the ADON was in
the unit. While his training required him to immediately
begin CPR on his own, the amount of time that he would
have conducted CPR would have been very brief had the
ADON acted appropriately. Moreover, he cannot be
blamed for any failure after the ADON arrived in the cell,
as he justifiably relied upon the ADON’s handling of the
medical situation.
13
Upon entering the cell, [Ruffner] saw the inmate and
believed him to be deceased. [Ruffner] is not medical
personnel and his testimony as to his belief is accepted as
credible. As explained by the [Allegheny County] Jail’s
Medical Director, [] the inmate might have been brain
dead at that time, as it is difficult to determine exactly
when that occurred. Nevertheless, [Ruffner’s] training
required him to immediately begin CPR and he did not do
so. However, when this conduct is considered in
conjunction with that of the ADON, it is more
understandable. The ADON was on the unit and an
emergency call made. The undersigned is convinced that
had the ADON acted appropriately, CPR would have been
initiated in a timely fashion such that [Ruffner] would not
have been terminated, as his error was more one of
judgment and not willful misconduct or neglect of duty.
Arbitration Award at 14-15. Based on this assessment of the facts of the matter, the
arbitrator determined Ruffner should be reinstated with a three-day suspension,
subject to required training to be determined by the County. See id. at 15.
The trial court found that the arbitrator’s assessment of the evidence
was “seriously flawed” in relation to the remedy imposed. Trial Court Opinion at
12. Specifically, the trial court took issue with the arbitrator’s consideration of the
ADON’s actions during this event, which the trial court viewed as completely
separate from Ruffner’s actions. See id. at 12-13. On balance, the trial court found
that “[d]ocking [Ruffner] three days[’] pay [] is virtually no penalty under these
circumstances[,]” and found that “[s]uch an award poses an unacceptable risk of
undermining the well-defined public policy against suicide.” Trial Court Opinion at
13-14.
We do not agree with the trial court’s assessment of the Arbitration
Award under the unique circumstances of this case. Events such as these do not
14
occur in a vacuum. While we appreciate the trial court’s observation that both
Ruffner and the ADON can be individually blamed for their individual conduct, see
Trial Court Opinion at 12-13, holding both Ruffner and the ADON individually
responsible for their own conduct does not require, as the trial court seems to
suggest, that the conduct of each must be viewed in isolation. If we lived in a black
and white world of absolutes, cases involving proven technical violations of prison
rules and/or procedures would never require arbitrators to fashion awards other than
termination or complete reinstatement with back pay. However, the arbitration
process allows arbitrators to modify disciplinary penalties and fashion appropriate
awards based on the specific facts of a given case. See Sch. Dist. of Phila. v. Com.
Ass’n of Sch. Adm’rs, Teamsters Local 502, 160 A.3d 928, 934 (Pa. Cmwlth. 2017)
(noting that arbitrators maintain authority to modify disciplinary penalties imposed).
This is what occurred here – the arbitrator reviewed the unique facts and fashioned
an award to suit those specific facts.
We agree with the arbitrator that an assessment of the ADON’s
presence and behavior during the incident was pertinent to consider in determining
Ruffner’s culpability and, therefore, in fashioning an appropriate remedy. The
ADON was not far away somewhere else in the prison, but instead was right there
on the cellblock, a fact that was known to Ruffner. The ADON’s presence helps to
explain Ruffner’s inaction and represents a significant mitigating factor in
determining an appropriate remedy.
Ruffner also testified that he thought the inmate was already dead upon
cutting him down with the cut-down tool.9 The arbitrator credited this testimony.
9
Ruffner testified:
Once I got the keys I went back into the cell and cut him down. [The
inmate] landed on his face on the bottom bunk.
15
See Arbitration Award at 14. Notwithstanding the trial court’s sweeping and
unsupported statement that “[i]t is common knowledge that a person appearing
lifeless is potentially revivable[,]” Trial Court Opinion at 13, Ruffner’s credited
belief that the inmate was deceased provides further mitigation for his failure to
commence CPR and/or First Aid. Allegheny County Jail Policy 304 Section 8 calls
for corrections officers to initiate lifesaving measures “if needed,” and Section 15
requires corrections officers to immediately initiate CPR and/or First Aid “as
appropriate.” See Allegheny County Jail Policy 304, supra note 3. Conducting CPR
At that point I grabbed [the inmate], flipped him onto his back, and
placed him onto the ground.
His eyes were popped out of his head, his chest was expanded, and
his stomach looked like it didn’t have anything in it. I was under
the assumption he was dead when I cut him down.
I smacked him in his arm trying to get a response from him, but it
was eyes open staring at the ceiling, no breathing, nothing.
At that point I exited the cell and stood outside waiting for the
ADON because I knew he was on the pod. I yelled down to [the
other officer who was present] and said where’s the ADON, and he
yelled over to the corner to the ADON and said you need to get
upstairs.
....
At that point [upon the discovery of the inmate] I’m under the
assumption he’s dead, just the lifelessness of him in my opinion, and
I’m immediately looking for the ADON because I knew he was there
and knew that somebody with more medical knowledge was on the
pod, somebody that had more than two hours of training, video
experience, was on the pod, and I was looking for that person and
trying to get [the other officer who was present] to get that ADON
to come upstairs and he was trying, and even [a third officer] yelled
to [the ADON] to hurry to get upstairs.
Notes of Testimony, September 19, 2018 at 162-64; R.R. at 165a-67a.
16
on a deceased individual would be futile, and therefore arguably neither “needed”
nor “appropriate.” Ruffner’s failure to immediately commence CPR on the inmate,
although ultimately incorrect, arguably comported with the mandates of the prison
policies to the extent it was based on his belief that the inmate was already deceased.
Given the unique facts of the instant matter, the Arbitration Award does
not make a mockery of the public policy seeking to prevent prisoner suicide. The
arbitrator considered the testimony and evidence before her and thoughtfully
explained her decision based on the specific facts of this case. While a well-defined,
dominant public policy against prisoner suicide exists, in consideration of the unique
facts as found by the arbitrator, we cannot say that the remedy in this case, although
not the same as what the trial court would have fashioned in assessing the same facts,
violates public policy or requires the County to do so. Accordingly, the trial court
improperly applied the public policy exception to the essence test in this matter.
Additionally, we note that Philadelphia Housing Authority is readily
distinguishable from the instant matter, as that case involved an employee whose
“lewd, lascivious and extraordinarily perverse” conduct toward a co-worker without
question amounted to sexual harassment. See Phila. Hous. Auth., 52 A.3d at 1124-
25. In Philadelphia Housing Authority, the Supreme Court reviewed relevant
federal sexual harassment case law and recognized the existence of an explicit, well-
defined, and dominant public policy against workplace sexual harassment. Id. at
1123, 1127-28. The Supreme Court then found that the arbitration award that
reinstated the offending employee with full back pay violated that well-defined,
dominant public policy against sexual harassment. See id. The Supreme Court
noted:
17
To allow an arbitration award which finds that an
employee engaged in “extraordinarily perverse” physical
sexual harassment of a co-worker, yet then simply
dismisses the conduct as unworthy of an employer
response beyond initial “counseling,” and reinstatement
with back pay, would eviscerate the ability of employers
to enforce dominant public policy.
Id. at 1125. The majority concluded that, considering the “egregious” nature of the
employee’s conduct, the arbitrator’s award reinstating him “[made] a mockery of the
dominant public policy against sexual harassment.” Id. at 1128.
Ruffner’s actions and the remedy fashioned by the arbitrator herein are
simply not comparable to the actions of the employee or the remedy in Philadelphia
Housing Authority. Ruffner did not repeatedly and knowingly violate public policy.
His actions in not commencing CPR, although ultimately incorrect in regard to
Allegheny County Jail policy, can be easily understood when Ruffner’s credited
belief that the inmate was deceased is coupled with the presence of a more qualified
medical professional on scene whose arrival Ruffner thought was imminent. A
three-day unpaid suspension for a negligent error of judgment under the particular
circumstances of this case in no way eviscerates the County’s ability to enforce the
public policy to protect against prisoner suicide. See Phila. Hous. Auth., 52 A.3d at
1125. The serious nature of the tragic death of the inmate in this matter
notwithstanding, unlike the reinstatement without other consequences awarded in
Philadelphia Housing Authority, the Arbitration Award imparts a meaningful
penalty that is properly calibrated to Ruffner’s level of culpability as determined by
the arbitrator in this matter.
18
For these reasons, we reverse the Trial Court Order and reinstate the
award of the arbitrator reducing Ruffner’s termination to a three-day suspension with
back pay.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, Pennsylvania :
:
v. :
:
Allegheny County Prison :
Employees Independent Union, : No. 122 C.D. 2020
Appellant :
ORDER
AND NOW, this 10th day of November, 2020, the January 23, 2020
order of the Court of Common Pleas of Allegheny County is REVERSED. The
arbitration award dated January 10, 2019 is REINSTATED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge