SILVESTRI, Senior Judge.
The Fraternal Order of Police, Lodge No. 5 (FOP) and the City of Philadelphia (City) were parties to a collective bargaining agreement which was to expire on June 30, 1992. In December of 1991, the parties commenced negotiations toward a collective bargaining agreement to become effective on July 1, 1992. The parties reached an impasse in negotiations and they requested arbitration pursuant to Act 111.
Pursuant to Section 4(b) of Act 111, 43 P.S. § 217.4(b), City appointed H. Thomas Felix (Felix) and FOP appointed Richard Markowitz (Markowitz) as their respective partial arbitrators to the arbitration panel. Richard Kasher (Kasher) became the third, "neutral",
In support of the relief sought by FOP, it alleged in its petition that City's arbitrator, Felix, and the neutral arbitrator, Kasher, issued an interim award on February 3, 1993 without the "consideration or deliberation" of Markowitz. (R.R. 6a). FOP additionally asserted that Markowitz was excluded from discussions between Felix and Kasher leading up to the final award which FOP alleged constituted improper ex parte contacts warranting the setting aside of the arbitration award.
FOP also asserted in its petition that the award should be set aside because the arbitration panel acted beyond their jurisdiction and the scope of their authority in specifying in the award that certain funds in the hands of health care providers, not parties to the arbitration, were to be turned over to City.
The petition of FOP made claims which raised questions of fact; the petition also raised issues of law. The trial court conducted a hearing for the resolution of the questions of fact. On May 20, 1993, the trial court filed an opinion in which it made findings of fact and conclusions of law and entered the following order:
On May 21, 1993, FOP filed an appeal with this Court at 1294 C.D. 1993 from the trial court's May 20, 1993 order. Although FOP generally appealed from the foregoing order of the trial court, it is apparent that the portion of the order vacating paragraph 5 of the award was favorable to FOP. Given the fact that FOP has not addressed this portion of the order either directly or indirectly in its questions for review or
On June 3, 1993, City also filed an appeal from the trial court's order at 1373 C.D. 1993. City limited its appeal to that portion of the trial court's May 20, 1993 order vacating paragraph 5 of the arbitration award.
Before addressing the merits of each of the foregoing appeals, we must first address a motion filed by FOP to strike certain portions of the supplemental reproduced record filed by City.
FOP's motion to strike portions of the supplemental reproduced record
On August 19, 1993, City filed with this Court a supplemental reproduced record consisting of four (4) volumes of materials. On September 10, 1993, FOP filed a motion entitled, "Appellant's Motion To Strike Portions Of Appellee's Supplemental Reproduced Record." Specifically, FOP sought to strike pp. 136b through 2136b of the supplemental reproduced record consisting of a motion for summary judgment which City filed with the trial court (S.R.R. 136b-139b), a memorandum of law in support thereof (S.R.R. 140b-195b) and the exhibits attached thereto (S.R.R. 201b-2136b). The trial court did not rule on City's motion for summary judgment because it determined that summary judgment was not cognizable in a petition proceeding.
Appeal of FOP
FOP, in its statement of the questions involved, sets forth nine issues for our review. Although FOP has not categorized these issues, in the following discussion we will do so and explain how said issues are distinct from others and what our scope of review is as to those issues.
As previously noted herein, the trial court was required to conduct hearings in order to make factual determinations concerning the allegations contained in FOP's petition. In its appeal to us, FOP, in issues two (2), seven (7), eight (8) and nine (9), raises issues which relate to the conduct of the trial by the trial court, its rulings and its findings. Specifically, these issues are as follows:
Initially, we note that our scope of review of the trial court's findings of fact, i.e., the trial court's resolution of the factual disputes raised by FOP's petition, is limited to determining whether there is substantial evidence of record to support said findings. Grand Cent. Sanitary Landfill, Inc. v. Township of Plainfield, 138 Pa.Commw. 640, 589 A.2d 767
FOP's issue two (2) deals with our scope of review of the trial court's resolution of factual disputes. FOP alleges Markowitz was improperly excluded from deliberations leading to the final award. This allegation of fact was raised by FOP in its petition, as set forth hereinabove, and dealt with by the trial court. Specifically, at the hearing before the trial court, Markowitz testified that he was excluded from meetings between Felix and Kasher concerning provisions in the award, and that he was unable to state his views on certain issues dealt with in the award because of his being excluded. However, contrary to Markowitz' testimony, the trial court specifically found that Markowitz was not excluded from deliberations by the other two arbitrators; it further found that numerous executive sessions and telephone conferences took place in which all three arbitrators participated and had the opportunity to discuss their views concerning the matters dealt with in the final award. Conclusive of this is the fact that the trial court found that Markowitz was not credible. The record reveals that there was substantial competent evidence to support the findings of the trial court.
In addition to FOP's reliance upon Markowitz' testimony in its argument of this issue, FOP relies upon a dissenting opinion filed by Markowitz to the final arbitration award as supportive of the fact that Markowitz was excluded from the deliberative process leading to the final award. In his dissent, Markowitz charged that he was not given the opportunity to participate in or comment on certain provisions contained in the award. In its brief, FOP cites the following excerpt from Markowitz' dissent as authority for this proposition:
We find no merit to FOP's argument that this passage from Markowitz' dissenting opinion somehow establishes, without question, that Markowitz was excluded from the deliberations leading to the final award. Moreover, in light of the fact that the trial court specifically made findings to the contrary of those set forth in Markowitz' dissent, we view this argument by FOP to be unfounded and misleading.
Act 111 specifically provides that the determination of the "majority" of the board of arbitrators is to be binding. Act 111, 43 P.S. § 217.7(a). The fact that Markowitz filed a dissent from the majority award is of no significance and has no effect on the validity of the award. Accordingly, there being substantial evidence supporting the trial court's findings that deliberations as to the final award involving all three arbitrators occurred and that all three arbitrators had an opportunity to set forth their views relative thereto, FOP's argument is not only lacking in merit but borders on being facetious.
We now turn to issues seven (7), eight (8) and nine (9) which deal with specific allegations of error on the part of the trial judge in the conduct of the hearing. Specifically, in issues seven (7), eight (8) and nine (9), FOP maintains that the trial court erred in improperly (1) excluding the testimony of
Although Section 217.7(a) of Act 111 expressly prohibits appeals from Act 111 arbitration awards to the courts of this Commonwealth, the Supreme Court has provided for a limited review by the courts of said awards in the nature of "narrow certiorari." See Moon v. Police Officers of Moon, 508 Pa. 495, 498 A.2d 1305 (1985), citing Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969); Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, 118 Pa.Commw. 132, 546 A.2d 137 (1988). Such "narrow certiorari" review is limited to (1) questions of jurisdiction; (2) the regularity of the proceedings; (3) questions of excess in the exercise of powers; and (4) constitutional questions. City of Washington v. Police Department, 436 Pa. 168, 259 A.2d 437 (1969). We note that our review, as well as the trial court's, in the nature of "narrow certiorari" does not include a review of questions of law or errors of law. Appeal of Upper Province Township, 514 Pa. 501, 526 A.2d 315 (1987) (there is no "legal error" or "question of law" review of Act 111 arbitration).
FOP argues, in issue three (3), that the following provision in the arbitration award warrants setting aside the award. This provision is as follows:
Specifically, FOP maintains that this provision is illegal because, FOP asserts, the funds designated in the award to be turned over to City, are not the property of FOP, but instead belong to the corporate entities named in the award. Additionally, FOP maintains that this provision is illegal because it directs non-parties to the arbitration proceeding to turn over funds to City.
In issue four (4) FOP refers to a provision in the arbitration award wherein the arbitration panel directed that certain issues which it did not settle, involving civilianization and work schedules, be turned over to other entities for resolution. FOP maintains that resolution of the issues submitted to arbitration were to be resolved exclusively by the panel. FOP argues that the award should be vacated because of this provision.
In issue five (5), FOP argues that the arbitration panel failed to comply with PICA in arriving at the award because, FOP contends, the arbitrators failed to state with specificity the factors which they took into consideration in giving weight to City's financial status and City's financial plan.
Finally, in issue six, FOP maintains that the award is unconscionable because, it charges, the award subjects its members to "terms that are arduous, oppressive and even cruel," and that the "PICA Act ... stacks the deck in favor of the City and against F.O.P." (Appellant's brief p. 33). Additionally, FOP argues that "the award resulted from arbitration proceedings that were tainted by confidential, ex parte communications between the neutral arbitrator and the City's counsel, arbitrator and witness" and that therefore it is "[w]ithout question there has been a complete absence of good faith, honesty in fact, and observance of fair dealing" thus rendering the award unconscionable. (Appellant's brief pp. 33-34).
As to issue six (6), we reject FOP's argument because FOP has merely set forth conclusive statements, as set forth hereinabove, concerning the unconscionability of the award without citing to the record any evidence or findings of the trial court to support said statements. Additionally, issue six (6), as well as issues three (3), four (4) and five (5) relate to matters which are outside our scope of review in the nature of narrow certiorari.
Finally, we turn to issue one (1) set forth by FOP as follows:
This issue, which has been cleverly stated by FOP, at first blush appears to address, once again, the propriety of alleged ex parte contacts between Kasher and Felix as argued by FOP in issue two (2). However close scrutiny of the phrasing of this issue, and FOP's brief regarding this issue, discloses that FOP is not, in fact, challenging contacts between Kasher and Felix.
FOP, before the trial court, presented testimony that Brian Pedrow (Pedrow), an attorney with the law firm representing City, had contacts with Kasher without the consent of its arbitrator Markowitz. Both Kasher and Pedrow admitted that Pedrow did assist Kasher in specific tasks requested by Kasher during his drafting of the final award. Kasher further
FOP, whose position before the trial court was that Markowitz did not consent to Pedrow assisting Kasher, does not, either in its statement of issues, or its brief, challenge the trial court's finding that Markowitz did in fact consent thereto. FOP, for the first time on appeal to us, argues that even though Markowitz consented to Pedrow assisting Kasher, it, FOP, did not authorize Markowitz to give his consent to Kasher's use of Pedrow in drafting the final award.
The rule in this Commonwealth has long been that issues not raised in the court below are waived and cannot be raised for the first time on appeal. Fatzinger v. City of Allentown, 140 Pa.Commw. 62, 591 A.2d 369, appeal denied, 529 Pa. 653, 602 A.2d 862 (1991). Thus, because FOP raises the issue of the lack of authority of its partial arbitrator, Markowitz, to consent to the contacts between Kasher and Pedrow for the very first time in this appeal, we hold that said issue is waived.
Appeal of City
City raises the following issue for our review:
Specifically, City argues that the trial court erred in striking paragraph 5 of the arbitration award as being in conflict with the Heart and Lung Act. City contends that the Heart and Lung Act does not apply to it as determined by our Supreme Court in the case of Ebald v. City of Philadelphia, 387 Pa. 407, 128 A.2d 352 (1957).
As noted numerous times throughout this opinion, the scope of review of an Act 111 arbitration award is limited to a review in the nature of narrow certiorari which precludes courts from performing its usual function of reviewing for errors of law.
No. 1294 C.D. 1993
AND NOW, this 7th day of December, 1993, it is hereby ordered as follows:
1. The Fraternal Order of Police's motion to strike pages 136b-2136b of the supplemental reproduced record is granted.
2. The order of the Court of Common Pleas of Philadelphia County dated May 20, 1993 denying the Fraternal Order of Police's Petition to Vacate Award and Petition of Stay and Enjoin Enforcement of Award is affirmed.
No. 1373 C.D. 1993
AND NOW, this 7th day of December, 1993, the portion of the order of the Court of Common Pleas of Philadelphia County vacating paragraph 5 of the arbitration award is reversed and paragraph 5 is reinstated.