Opinion
No. 2298 C.D. 2010
02-02-2012
City of Scranton v. E.B. Jermyn Lodge No. 2 of the Fraternal Order of Police and Fire Fighters Local Union No. 60 of the International Association of Fire Fighters, AFL-CIO and The Pennsylvania Department of Community and Economic Development and The Pennsylvania Economy League Central PA, LLC, as the Act 47 Coordinator for the City of Scranton Appeal of: City of Scranton, Pennsylvania, and the Pennsylvania Department of Community and Economic Development ("DCED") and the Pennsylvania Economy League Central PA, LLC, as the Act 47 Coordinator for the City of Scranton ("Act 47 Coordinator")
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge (P.) HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
In this appeal filed prior to our Supreme Court's recent decision in City of Scranton v. Fire Fighters Local Union No. 60, of the International Association of Fire Fighters, AFL-CIO, ___ Pa. ___, 29 A.3d 773 (2011) (Scranton Fire Fighters (2011)), the City of Scranton, Pennsylvania (City), the Pennsylvania Department of Community and Economic Development (DCED) and the Pennsylvania Economy League Central Pa, LLC, as the City's Act 47 Coordinator, seek review of an Order of the Court of Common Pleas of Lackawanna County (trial court) that denied the City's Petition to Vacate (Petition) an April 2010 grievance arbitration award (2010 Award) issued by Arbitrator Stanley L. Aiges (Arbitrator) pursuant to the act commonly known as the Policemen and Firemen Collective Bargaining Act (Act 111). On appeal here, the City argues that: (1) the 2010 Award must be vacated because it directs the City to commit an illegal act; (2) Arbitrator acted beyond his jurisdiction in determining that the City acted in bad faith; and (3) in denying the City's Petition, the trial court failed to acknowledge the City's Act 47 status and the City's obligation to comply with its recovery plan.
Act 47 is the title commonly used when referring to the Municipalities Financial Recovery Act, Act of July 10, 1987, P.L. 246, as amended, 53 P.S. §§ 11701.101-11701.501. Act 47 provides a procedure by which a municipality may petition DCED for a determination of financially distressed status. Sections 202 and 203 of Act 47, 53 P.S. §§ 11701.202, 11701.203. If DCED determines a municipality is financially distressed, DCED's Secretary must appoint a coordinator to prepare a recovery plan addressing the municipality's financial problems. Section 221 of Act 47, 53 P.S. § 11701.221. The recovery plan must be consistent with applicable law and shall include certain factors relevant to alleviating the municipality's financial distress. Section 241 of Act 47, 53 P.S. § 11701.241. Among the factors a recovery plan may consider are "[p]ossible changes in collective bargaining agreements and permanent and temporary staffing level changes or changes in organization." Section 241(3) of Act 47, 53 P.S. § 11701.241(3). Act 47 mandates that the proposed recovery plan shall proceed through a public response period, following which the municipality may approve the recovery plan or propose an alternative one. Sections 243-46 of Act 47, 53 P.S. §§ 11701.243-11701.246. If the municipality approves the plan, Act 47 requires the coordinator to oversee its implementation. Section 247 of Act 47, 53 P.S. § 11701.247. Neither DCED's Secretary nor the municipality's chief executive officer or governing body may revise the coordinator's recovery plan. Section 244 of Act 47, 53 P.S. § 11701.244. However, Act 47 authorizes the coordinator to initiate amendments to the plan after it is adopted by the municipality. Section 249 of Act 47, 53 P.S. § 11701.249. If a municipality refuses to adopt a recovery plan or if the municipality does not follow the adopted plan's recommendations, the municipality risks such penalties as the withholding or suspension of certain Commonwealth funds. Sections 251 and 264 of Act 47, 53 P.S. §§ 11701.251, 11701.264. Although Act 47 does not authorize a recovery plan to supersede an existing labor agreement, it proscribes any new contract from impairing implementation of the plan. Section 252 of Act 47, 53 P.S. § 11701.252; Fraternal Order of Police, Fort Pitt Lodge No. 1 v. Yablonsky, 867 A.2d 658, 660 (Pa. Cmwlth. 2005) (en banc).
Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1-217.10.
Appellate review of an Act 111 grievance arbitration award is in the nature of narrow certiorari and is limited to issues regarding: (1) the jurisdiction of the arbitrator; (2) the regularity of the proceedings; (3) whether the arbitrator exceeded his or her powers; and (4) deprivation of constitutional rights. City of Philadelphia v. International Association of Fire Fighters, Local 22, 606 Pa. 447, 461, 999 A.2d 555, 563 (2010). As to the standard of review, courts afford deference to Act 111 arbitrators' findings of fact, but review of questions of law within the elements of narrow certiorari is non-deferential. Town of McCandless v. McCandless Police Officers Association, 587 Pa. 525, 540-41, 901 A.2d 991, 1000-01 (2006) (unless a determination depends on arbitral fact-finding or construction of the CBA, there is no reason why a court should defer to arbitrator on questions of whether there was an excess of the arbitrator's powers).
In January 1992, the DCED determined the City to be a "financially distressed municipality" under Sections 202 and 203 of Act 47, 53 P.S. §§ 11701.202, 11701.203, and it appointed the Pennsylvania Economy League of Central Pa., LLC, as Act 47 Coordinator to develop a recovery plan. The City is currently operating under its May 2002 Plan (2002 Recovery Plan). DCED has not lifted the City's financially distressed status. As a result of the City's Act 47 status, the Fire Fighters Local Union No. 60 of the International Association of Fire Fighters (Fire Fighters) and the Fraternal Order of Police, E.B. Jermyn Lodge No. 2 (FOP) (collectively "Unions") reopened their collective bargaining agreements (CBAs) and agreed to various concessions, including reductions in manning, wage increases, and various benefits. Relevant here, the Unions, in their respective 1993-1995 CBAs, agreed to a co-pay contribution deducted from employees' salaries. The Health Insurance Sections of the parties' CBAs relevantly provided:
A. During [the] calendar year 1993 the City shall pay the following total amounts:
| Family | $6,622 |
| Single | $2,461 |
| Husband/Wife | $6,174 |
| Parent/Child | $4,865 |
| Parent/Children | $5,246 |
B. As of January 1, 1994, the City shall be responsible for 50% of any increases in the cost of health care for the active bargaining unit employee beyond that provided in subsection (A) and the active bargaining unit employee shall be responsible for the balance of such increases.(CBA between City and Fire Fighters, effective January 1, 1993-December 31, 1995, Article XV, Section 3, S.R.R. at 95b-96b (emphasis added); CBA between City and FOP, effective January 1, 1993-December 31, 1995, Article XXIII, Section 2, S.R.R. at 147b-48b (emphasis added).) The parties' 1996-2002 CBAs contained identical provisions. (CBA between City and Fire Fighters, effective January 1, 1996-December 31, 2002, Article XV, Section 3, S.R.R. at 170b-71b; CBA between City and FOP, effective January 1, 1996-December 31, 2002, Article XXIII, Section 3, S.R.R. at 208b-09b.)
. . . .
D. Before any such charge shall be effective, the Union[/FOP] shall be notified in writing immediately upon the City's receipt of any proposed increases, but not less than thirty (30) calendar days in advance of the effective date of such increases and shall simultaneously be provided with supporting documentation from the insurance carrier demonstrating the exact nature and effective date of such increases.
E. The active bargaining unit employee's share of the increase shall be divided equally among the paychecks for the year and only one single payment by the employee shall be deducted from each paycheck.
The parties' 1996-2002 CBAs expired, and the parties proceeded through protracted interest arbitration. This resulted in two separate 2006 Interest Arbitration Awards. In City of Scranton v. Fire Fighters Local Union No. 60, of the International Association of Fire Fighters, AFL-CIO, 964 A.2d 464 (Pa. Cmwlth. 2009) (Scranton Fire Fighters (2009)), rev'd, ___ Pa. ___, 29 A.3d 773 (2011) and City of Scranton v. E.B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 965 A.2d 359 (Pa. Cmwlth. 2009) (Scranton FOP (2009)), rev'd sub nom., City of Scranton v. Fire Fighters Local Union No. 60, of the International Association of Fire Fighters, AFL-CIO, ___ Pa. ___, 29 A.3d 773 (2011), this Court, in unanimous en banc decisions, affirmed as modified the parties' 2006 Interest Arbitration Awards. Among other items, this Court modified the 2006 Interest Arbitration Awards in the areas of wages and health insurance to comply with the City's 2002 Recovery Plan. With respect to these areas, the modified 2006 Interest Arbitration Awards directed that the awarded wage increases be received by the Fire Fighters' bargaining unit members within 45 days and the FOP bargaining unit members within 30 days. Scranton Fire Fighters (2009), 964 A.2d at 492; Scranton FOP (2009), 965 A.2d at 381. There was no specific time limitation imposed with respect to any resultant increase in the covered employees' health insurance costs. Id.
As noted by our Supreme Court in Town of McCandless, 587 Pa. at 528 n.2, 901 A.2d at 993 n.2: "'Grievance arbitration' is the arbitration which occurs when the parties disagree as to the interpretation of an existing collective bargaining agreement. 'Interest arbitration' is the arbitration which occurs when the employer and employee[s] are unable to agree on the terms of a collective bargaining agreement."
This Court's Order in Scranton Fire Fighters (2009) relevantly provides:
2. Wages.
Within 45 days of the execution of this Award by at least a majority of the Panel, all bargaining unit members who are on the payroll on the corresponding dates listed below shall receive wage increases of bonuses in accordance with the following:
May 30, 2006 3.5% increase across the board.
January 1, 2007 4.0% increase across the board.
. . . .
3. Health Insurance.
A. The City is ordered to fully cooperate with the Health Care Committee by providing all information reasonably necessary to its function and by cooperating with the National Health Care Consultant in the Committee's efforts to contain health care costs.
. . . .
C. Article XV, Sections 3(A) and (B) of the collective bargaining agreement shall be amended as follows:
1. Effective January 1, 2003, the City shall be liable for the cost of health insurance (over and above the listed deductibles and co-payments) up to the annual amounts listed below:
Act 111 interest arbitration awards were issued in 2008-2009, which were also the subject of litigation. City of Scranton v. Fire Fighters Local Union No. 60., 8 A.3d 930 (Pa. Cmwlth. 2010); City of Scranton v. E.B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 8 A.3d 971 (Pa. Cmwlth. 2010). In each of these cases, this Court affirmed, as modified, the trial court's denial of the City's petition to vacate arbitration award in light of our decisions in Scranton Fire Fighters (2009) and Scranton FOP (2009). However, the Supreme Court reversed our decisions in Scranton Fire Fighters (2009) and Scranton FOP (2009), modifying the 2006 Interest Arbitration Awards based on our holdings that the limitation on collective bargaining rights in Act 47 applied to interest arbitration awards for the Unions, and remanded for reinstatement of the original arbitration awards. Scranton Fire Fighters (2011), ___ Pa. at ___, 29 A.3d at 789, both of which were reversed and remanded in Scranton Fire Fighters (2011).
The City adopted the position that, due to this Court's Orders, the wage increases and all the health insurance changes, including any increase in the amount of employees' contributions for health insurance costs, were to be implemented within 45 days of the January 23, 2009, Order in Scranton Fire Fighters (2009), and within 30 days of the February 6, 2009, Order in Scranton FOP (2009). The City, thus, determined that the appropriate date for compliance would be March 9, 2009, which was also the beginning of a pay period, with a pay date of March 20, 2009. (Hr'g Tr. at 24-25, R.R. at 66a.) Anticipating grievance arbitration, the City took a conservative approach and based the health insurance cost increases payable by the employees on actual claims for 2008, the previous year. (Hr'g Tr. at 27-28, R.R. at 67a.) On March 16, 2009, the City notified the Unions that the wage increases and the increase in employees' contributions toward their health insurance costs would be reflected in the March 20, 2009, paychecks. (Hr'g Tr. at 37-38, 50, R.R. at 69a-70a, 73a.) The Health Care Committee next met on May 14, 2009, and the City provided the Unions with supporting documentation relating to the calculation and analysis of the increases to employees' contributions toward their health insurance costs at that time. (Hr'g Tr. at 50-51, R.R. 73a.)
On or about March 23, 2009, the Unions filed demands for grievance arbitration regarding the increases in health insurance costs deducted from employees' pay beginning March 20, 2009. (Fire Fighters 2009 Grievance Form, S.R.R. at 452b-54b; FOP Grievance 09-009, S.R.R. at 456b-57b.) Hearings were held on November 5 and 6, 2009. Arbitrator phrased the issue as follows:
Did the City violate the terms of the current [CBAs] by increasing employee co-pay contributions for healthcare effective March 20, 2009? If so, what shall be the remedy?(2010 Award at 19.)
Before Arbitrator, the Unions asserted that the City made no attempt to comply with the CBAs' Health Insurance Section 3(D). The Unions argued that the City had a clear, unambiguous contractual obligation to provide adequate notice and time for the Unions to review the supporting documentation to determine if the proposed increases were justified. They argued that the purpose of these provisions was to ensure that the premiums would not be increased without support. The Unions urged that the City, in failing to comply with these notice requirements, acted in bad faith.
The City contended that this Court's Orders in Scranton Fire Fighters (2009) and Scranton FOP (2009) required that the wage increases and health insurance provisions be implemented with the pay period beginning March 9, 2009. The City also contended that Health Insurance Section 3(D) only requires notice and documentation for proposed increases. The increases here, the City asserted, were mandated by this Court's Orders in Scranton Fire Fighters (2009) and Scranton FOP (2009).
Arbitrator agreed with the Unions' position and further concluded that the City acted in bad faith. Accordingly, Arbitrator awarded the following interim relief: (1) "The City is directed to cease and desist from collecting the increases in health care costs made effective on March 9, 2009. The status quo ante is to be restored."; (2) "The City is directed to refund those increases to affected employees, with interest calculated at the rate set forth in the agreements."; (3) "No further premium increases are to be put into effect pending the conclusion of hearings in this case . . . and issuance of [a] decision following such hearings."; (4) "In that the City is found to have acted in bad faith, pursuant to the authority granted to [Arbitrator] in the [CBAs]," the City is assessed costs and attorney fees; and (5) "Jurisdiction is retained for purposes of . . . concluding hearings in this case . . . and . . . the implementation of the terms of this [Award]." (2010 Award at 33-34.) The City filed its Petition and, upon review, the trial court determined that Arbitrator did not exceed his jurisdiction or powers in determining that the City violated the notice requirements in Health Insurance Section 3(D) of the parties' CBAs. Accordingly, the trial court denied the City's Petition by Order dated September 29, 2010. This appeal followed.
Before this Court, the City first argues that Arbitrator's 2010 Award mandates that it commit an illegal act by violating this Court's Orders in Scranton Fire Fighters (2009) and Scranton FOP (2009). The City asserts that Scranton Fire Fighters (2009) required compliance within 45 days and Scranton FOP (2009) required compliance within 30 days. In order to comply, the City contends that it directed implementation of the health insurance cost provisions as of March 9, 2009, after obtaining the necessary information from its healthcare administrator. The City notified the Unions of the increases on March 16, 2009, before it deducted the money from the March 20, 2009, paychecks. The City contends that the CBAs do not contain any timing or notice provisions relating to arbitration awards or court orders. The City states that the Unions never disputed the amount of the deductions or the necessity for their implementation. Finally, the City argues that by holding that the City should have complied with the Health Insurance Section 3(D) notice requirements and by ordering refunds, Arbitrator is causing the City to violate the substance of this Court's 2009 Orders in favor of procedural provisions that apply only to proposed changes. Because the 2010 Award requires the City to violate this Court's Orders, the City contends that Arbitrator far exceeded his authority.
As stated emphatically by our Supreme Court:
The "definition of what constitutes 'an excess of an arbitrator's powers' [is] far from expansive." Pennsylvania State Police v. Pennsylvania State Troopers [Association], 559 Pa. 586, [592-93,] 741 A.2d 1248, 1252 (1999). We have stated that an arbitrator runs up against the limits of his powers when he orders an "illegal act." We have stressed that an
arbitrator[']s mere error of law does not constitute an "illegal act" and is "insufficient to support a court's decision to reverse an Act 111 arbitrator[']s award." Id. Rather, an Act 111 arbitration award orders an illegal act only when it directs the public employer to do that which the employer could not do voluntarily.City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 595 Pa. 47, 54, 938 A.2d 225, 230 (2007). In other words, an arbitrator exceeds his or her authority if he or she "requires the public employer to perform an act that it is prohibited by law from performing." In re Appeal of Upper Providence Police Delaware County, 514 Pa. 501, 514, 526 A.2d 315, 321-22 (1987). A party to a court proceeding is bound to follow the orders of the court or face possible contempt proceedings. Accordingly, an arbitrator would exceed his or her powers if the arbitrator required the public employer to perform an act that would be in violation of a court order.
We are constrained, in this case, by our narrow certiorari scope of review in arbitration matters to hold that Arbitrator did not exceed his authority. As we have noted, this Court must defer to the arbitrator's award when the determination depends on arbitral fact-finding or the construction of the CBA. Town of McCandless v. McCandless Police Officers Association, 587 Pa. 525, 540-41, 901 A.2d 991, 1000-01 (2006). Here, Arbitrator reviewed the provisions regarding health insurance contained in the parties' prior CBAs, as well as the 2006 Interest Arbitration Awards. Based on this review, Arbitrator determined that the text of Health Insurance Section 3(D) has remained constant, without alteration, and further that the text "sets up a clear procedural requirement which the City must satisfy before any change in the amount of money an employee must pay for his/her share of health care costs above the caps may become effective." (2010 Award at 26 (emphasis in original).) Arbitrator also determined that there was no reason to conclude that the 2006 Interest Arbitration Awards "eliminated, changed or in any way modified the procedural requirements" provided for in Health Insurance Section 3(D). (2010 Award at 27.)
Moreover, Arbitrator concluded that this Court's decisions in Scranton Fire Fighters (2009) and Scranton FOP (2009) did not modify the 2006 Interest Arbitration Awards with respect to Health Insurance Section 3(D), resulting in the procedural requirements contained therein remaining in force. (2010 Award at 28.) Arbitrator found that the City did not comply with the procedural notice provisions mandated by Health Insurance Section 3(D) when it increased the covered employees' health insurance costs effective March 9, 2009, and began deducting the increased costs from the March 20, 2009 paychecks without providing 30 days advanced notice. (2010 Award at 30.) Finally, Arbitrator rejected the City's assertion that it was forced to act as it did in order to comply with this Court's Orders issued in Scranton Fire Fighters (2009) and Scranton FOP (2009). (2010 Award at 31.) Arbitrator concluded that a fair reading of our Orders revealed that we directed increases in the amount the City would be obliged to assume and had nothing to do with the amount the covered employees would have to pay above the cap level. (2010 Award at 31-32.)
Arbitrator interpreted the modified 2006 Interest Arbitration Awards as not affecting the procedural notice requirements mandated by Health Insurance Section 3(D) contained in the parties 1996-2002 CBAs, the last CBAs between the parties. The respective CBAs provide that the terms of past agreements not terminated, modified, or amended, continue in effect year to year. (CBA between City and Fire Fighters, effective January 1, 1996-December 31, 2002, Article XXVII, Section 1, S.R.R. at 182b; CBA between City and FOP, effective January 1, 1996-December 31, 2002, Article XXVII, Section 1, S.R.R. at 215b-16b.) The City's contention that it was required to implement the increases in the covered employees' health insurance costs by March 9, 2009, is based on its interpretation of this Court's Orders in Scranton Fire Fighters (2009) and Scranton FOP (2009). However, Arbitrator did not adopt the City's interpretation of our Court's Orders. There is no dispute that the opinions do specify that the City had 45 days and 30 days to implement the wage increases mandated by the modified 2006 Interest Arbitration Awards regarding Fire Fighters (2009) and Scranton FOP (2009), respectively. Scranton Fire Fighters (2009), 964 A.2d at 492; Scranton FOP (2009), 965 A.2d at 381. In addition to providing for wage increases, this Court's Orders also provided for implementation of the increases in the specific deductibles and/or copayments. However, we note that our Court's Orders do not refer to the procedural notice requirements mandated by Health Insurance Section 3(D) contained in the last CBAs between the parties or specify whether those timeframes continued to apply.
We note that if the City was uncertain about what action our Orders required on its part, it could have filed applications for clarification pursuant to Pennsylvania Rule of Appellate Procedure 123.
This Court's Orders required that the: (1) deductible for maximum individual annual coverage for in-network and out-of-network services be increased from $200 to $400; (2) deductible for maximum family annual coverage for in-network and out-of-network services be increased from $400 to $800; (3) copayment for a visit to the emergency room be increased from $35 to $75; (4) copayment for a visit to the doctor be increased from $5 to $10; and (5) copayment for prescriptions be increased to $6 for generic drugs and $15 for brand name drugs. Scranton Fire Fighters (2009), 964 A.2d at 492; Scranton FOP (2009), 965 A.2d at 381.
Arbitrator interpreted this Court's Orders in Scranton Fire Fighters (2009) and Scranton FOP (2009) to not require the City to implement the increases in the health insurance costs by March 9, 2009, without compliance with the 30 day notice and supporting documentation requirements set forth in Health Insurance Section 3(D) of the parties' 1996-2002 CBAs. This interpretation is not foreclosed by the language of the Orders. Our Supreme Court has stated that "an Act 111 arbitration award orders an illegal act only when it directs the public employer to do that which the employer could not do voluntarily." City of Pittsburgh, 595 Pa. at 54, 938 A.2d at 230. The language of this Court's Orders does not specifically prohibit the City from complying with the notice requirements set forth in Health Insurance Section 3(D). Therefore, we must find that Arbitrator's 2010 Award did not require the City to perform an illegal act. While this Court empathizes with the City's position and the perceived inequities of the 2010 Award, whether or not Arbitrator misapplied Health Insurance Section 3(D) is not reviewable under narrow certiorari review. Town of McCandless, 587 Pa. at 540-41, 901 A.2d at 1000-01. We must carefully adhere to our narrow certiorari review and, as such, we may not substitute our interpretation of the parties' CBAs and the 2006 Interest Arbitration Awards for that of Arbitrator.
We note that, even though the expenses for the City's health insurance coverage had increased between 2000 and 2009, the City refrained from implementing any increases in employees' health care insurance costs until it had received an order from this Court resolving the issues with the Unions over the 2006 Interest Arbitration Awards. (Hr'g Tr. at 36-37, R.R. at 69a.) We also note that the Unions were parties to the protracted legal proceedings and participants in the appeals before this Court. As such, the Unions were aware of our Decisions/Orders in Scranton Fire Fighters (2009) and Scranton FOP (2009) providing both for salary increases and increases in covered employees' health insurance costs. We also note that the Unions have not challenged the amount of the increase in the health insurance costs, only whether the Unions were given adequate notice of such increases. Arbitrator did not take any of this into consideration in fashioning the remedy. --------
Next, the City argues that Arbitrator exceeded his jurisdiction in determining that the City acted in bad faith. The City contends that Arbitrator only defined one issue for consideration; specifically, whether the City violated the terms of the current CBA by increasing the employees' health insurance costs effective March 9, 2009. Therefore, the City argues that since Arbitrator did not define an issue of bad faith, he was without jurisdiction to consider whether the City acted in bad faith.
Under Act 111, an arbitrator "is granted the power to hear and determine those disputes that arise out of the collective bargaining process between a public employer and its fire fighters or police employees." City of Philadelphia v. International Association of Fire Fighters, Local 22, 606 Pa. 447, 461, 999 A.2d 555, 564 (2010). The parties' 1996-2002 CBAs' grievance procedures provide:
In the event that the Arbitrator shall determine that either party acted in bad faith with regard to the facts underlying the issues or with regard to conduct in the proceedings, the Arbitrator is empowered to assess all or a portion of the fees and expenses incurred in the presentation of the case and reasonable attorneys' fees as an element of damage. Furthermore, should the Arbitrator direct a financial remedy, such remedy shall commence to run from the date of the violation and shall bear an interest rate from that date equal to the six (6) month United States Treasury bill rate . . . .(CBA between City and Fire Fighters, effective January 1, 1996-December 31, 2002, Article XXI, Section 7, S.R.R. at 180b (emphasis added); CBA between City and FOP, effective January 1, 1996-December 31, 2002, Article XX, Section 9, S.R.R. at 202b (emphasis added).) This provision does not contain a specific requirement that the Arbitrator "define" the issue of bad faith before he can "determine" that either party acted in bad faith.
Because the CBAs do not specify that Arbitrator must define the issue of bad faith, we cannot find that Arbitrator was without jurisdiction to determine whether either party acted in bad faith with regard to the facts underlying the issue that was defined. The CBAs also "empowered" Arbitrator to award counsel fees and expenses based on a finding of bad faith. See City of Scranton v. E.B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 903 A.2d 129, 136 (Pa. Cmwlth. 2006) (stating that "[b]ecause an award of counsel fees was specifically authorized by the CBA once a bad faith finding was made, the award of counsel fees was proper.").
In its brief, the City argues that an arbitration award cannot violate, expand, or diminish an Act 47 recovery plan and that Arbitrator, in fashioning a remedy, failed to consider the financial impact on the City, its 2002 Recovery Plan, and the violation of this Court's Orders in Scranton Fire Fighters (2009) and Scranton FOP (2009). The City contended further that the trial court did not acknowledge the City's Act 47 status or its obligation to comply with its 2002 Recovery Plan; therefore, the 2010 Award must be vacated.
However, this case was argued immediately after our Supreme Court's recent decision in Scranton Fire Fighters (2011), ___ Pa. at ___, 29 A.3d at 789, in which the Supreme Court specifically held that "Act 47 does not impinge upon interest arbitration awards" under Act 111. The City acknowledged that the Supreme Court opinion has disposed of this argument; therefore, we do not address it further.
Based on the foregoing, we are constrained to affirm the trial court's Order denying the City's Petition.
/s/ _________
RENÉE COHN JUBELIRER, Judge Judge McCullough did not participate in the decision in this case. ORDER
NOW, February 2, 2012, the Order of the Court of Common Pleas of Lackawanna County, entered on September 29, 2010, in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
| Single Coverage | $3,692 |
| Parent/Child | $7,298 |
| Parent/Children | $7,869 |
| Husband/Wife | $9,261 |
| Family | $9,933 |
2. As of January 1, 2004, the City shall be responsible for 50% of any increases in the cost of health care for active bargaining unit employees beyond that provided above and the active employees shall be responsible for the balance of any subsequent increases as determined by the healthcare provider.Scranton Fire Fighters ( 2009 ), 964 A.2d at 492-93 (emphasis in original). This Court's Order in Scranton FOP ( 2009 ) states, in relevant part:
2. Wages
Within 30 days of the issuance of this Award, the wages of all bargaining unit members who are on the payroll on the corresponding dates listed below shall be as follows:
• April 7 , 2006 3.5% increase across the board.
• January 1, 2007 4.0% increase across the board.
3. Health Insurance
A. The City is ordered to fully cooperate with the Health Care Committee by providing all information reasonably necessary to its function and by cooperating with the National Health Care Consultant in the Committee's efforts to contain health care costs.
. . . .
C. Article XXIII, Sections 3(A) and (B) of the collective bargaining agreement shall be amended as follows:
1. Effective January 1, 2003, the City shall be liable for the cost of health insurance (over and above the listed deductibles and co-payments) up to the annual amounts listed below:
| Single Coverage | $3,692 |
| Parent/Child | $7,298 |
| Parent/Children | $7,869 |
| Husband/Wife | $9,261 |
| Family | $9,933 |
2. As of January 1, 2004, the City shall be responsible for 50% of any increases in the cost of health care for active bargaining unit employees beyond that provided above and the active employees shall be responsible for the balance of any subsequent increases as determined by the healthcare provider.Scranton FOP (2009), 965 A.2d at 381 (emphasis in original).