City of Phila., Aplt. v. FOP, Lodge No. 5

responsibilities, they have search, seizure, and arrest powers, including, in certain circumstances, without a warrant. Indeed, while carrying out these duties a police officer is empowered to resort to lawful, and in some cases lethal, force. Related thereto, the public's reliance upon, and perception of, police officer integrity is integral to the protection and safety of our communities. Because of the need to protect members of the community, as well as the safety of other officers, it is essential to foster trust and confidence among officers, with other law enforcement agencies, and with our citizens. Such trust and confidence is closely tied to public perceptions, and the citizenry must trust police departments and police officers. When that trust is breached, individuals are less likely to report crime and to cooperate in investigations, negatively impacting the community, and ultimately hampering the ability of the police department to carry out its functions. Simply stated, the public expectation is clear: "The public, including fellow law enforcement agents, expect that police officers will not violate the laws they are charged with enforcing." United States v. Foreman, 926 F.2d 792, 796 (9th Cir.1990). Thus, "[t]he government has a substantial interest in retaining public trust in the police department and in removing police officers allegedly implicated in criminal activity who might betray that trust or who may pose a threat to the health, safety and welfare of the public." City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 592 A.2d 779, 785 (Pa. Cmwlth. 1991).

Accordingly, in light of their foundational role in our society, the significant authority and discretionary powers in which they are invested, the public's reliance upon police officer integrity, as well as public expectations, "police officers are held to a higher standard of conduct than other citizens, including other public employes" due to the

"compelling state interest in the maintenance of a high degree of public respect for police

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officers." Faust v. Police Civil Service Commission of Borough of State College, 347 A.2d 765, 768 (Pa. Cmwlth. 1975).

Given the unique stature of police officers in Pennsylvania, I join in the majority's reaffirmance of the application of the narrow certiorari standard of judicial review of Act 111 grievance arbitration awards as determined in Pennsylvania State Police v. Pennsylvania State Troopers' Association (Betancourt), 656 A.2d 83 (Pa. 1995).¹ However, given police officers' unique authority and responsibilities, as well as the public's expectations of law enforcement officers, unlike the majority, I would adopt a limited public policy exception to narrow certiorari review. My reasoning follows. The General Assembly's intent in granting collective bargaining rights to police (and fire personnel) is essential to understanding my position, so I briefly recount the history of public sector labor relations. The late 1800s and early 1900s were a time of great labor unrest. These tumultuous times were, in part, a result of individual employees lacking full freedom of association and liberty of contract, as well as an inequality of bargaining power, which substantially and adversely affected the welfare of the Commonwealth and the country. Such adverse impacts included widespread strikes, employer lockouts, and violence, all deemed inimical to the public safety and weal. In response, Congress passed the National Labor Relations Act in 1935 and two years later, in 1937, the Pennsylvania General Assembly enacted the Pennsylvania Labor Relations Act ("PLRA"). Through the PLRA, the legislature granted private sector employees in Pennsylvania the statutory right, inter alia, "to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own

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choosing," and mandated bargaining between an employer and a union over wages, hours, and other conditions of employment. 43 P.S. § 211.5; see Borough of Ellwood City v. Pennsylvania Labor Relations Board, 998 A.2d 589, 594 (Pa. 2010). However, these pieces of legislation only applied to those working in the private sector.² Historically, collective bargaining rights for those employed in the public sector was seen as contrary to the public welfare and not permitted. Philadelphia Housing Authority

v. PLRB, 499 A.2d 294, 297 (Pa. 1985). Accordingly, public sector unionization lagged far behind its private sector counterpart. Indeed, public employees, including police officers, enjoyed no collective bargaining rights during the first half of the 20th Century. Betancourt, 656 A.2d at 88-89. Thus, while the 1930s brought a change for private sector labor relations, labor unrest in the public sector continued and attempts at collective bargaining rights for these employees were met with fierce resistance in Pennsylvania and across the country.³⁴

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Due to the persistence of labor unrest among public employees, the belief that collective bargaining should have no application in the public sector slowly lost support. As a result, in the late 1960s and early 1970s, the General Assembly enacted sweeping reforms. In 1968, the General Assembly passed Act 111, which granted police officers and fire fighters collective bargaining rights: "The law relating to police and fire personnel, whose services are so vital to an ordered society . . . was created to strike a more perfect balance between the need of the Commonwealth to insure public safety and the rights of the worker." Betancourt, 656 A.2d at 89. As our Court stated in Township of Moon, "the General Assembly was committed to the view that the right to collective bargaining over terms and conditions of employment was critical to the restoration and maintenance of harmony in the public employment sector." Township of Moon, 498 A.2d at 1309. Two years later, in 1970, the legislature enacted the Public Employe Relations Act ("PERA"), granting collective bargaining rights to other public employees. The public policy underlying PERA was similar to that of Act 111, "to promote orderly and constructive relationships between all public employers and their employes subject, however, to the paramount rights of the citizens of this Commonwealth to keep inviolate the guarantees for their health, safety and welfare." 43 P.S. § 1101.101. Thus, it was the General Assembly's intent, through these labor laws, to balance public health, safety, and welfare with workers' rights as well as promote harmony in public sector labor relations. One aspect of collective bargaining is the resolution of grievances, including those disputes that arise out of contract interpretation. Arbitration is the "highly valued and greatly favored" means of resolving labor disputes--in both the public and private sector. State System of Higher Education (Cheyney University) v. State College Professional Association (PSEA-NEA), 743 A.2d 405, 409 (Pa. 1999). As with federal labor policy, the basis for Pennsylvania's strong policy in favor of arbitration is that it is considered to be

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"a prime force in the policy of reducing industrial strife," partly because it has the attributes of being less formal, less expensive, and faster than traditional dispute resolution in the courts. Id. Indeed, both Act 111 and PERA contain provisions that clearly envision an arbitration award as final and binding.⁵

Notwithstanding the labor policy in favoring the final and binding arbitration of disputes, and the statutory language expressly supporting such finality, our Court has nevertheless determined that the judiciary has the authority to review labor arbitration awards. See City of Washington v. Police Department of the City of Washington, 259 A.2d 437 (Pa. 1969) (allowing for judicial review of Act 111 arbitration awards pursuant to then-Supreme Court Rules R. 68 1/2); Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 375 A.2d 1267, 1271 (Pa. 1977) (determining judicial review of PERA arbitration award permissible under Pennsylvania Rule of Judicial Administration 2101).

Police officers deserve procedural protections against arbitrary employment actions, nevertheless, it is generally accepted that these protections should not be so cumbersome as to unreasonably impair the ability of police supervisors to control their departments or promote reform. Stephen Rushin, Police Arbitration, 74 Vand. L. Rev. 1023, 1073-74 (2021). Thus, in my view, the challenge in this appeal is determining the

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extent of judicial review of arbitration awards to effectuate the General Assembly's intent to balance the interests of essential public employees with the public health, safety, and welfare.

Our Court's experience regarding the review of arbitration awards under PERA is highly instructive. Judicial review of an appeal from a PERA arbitration award is governed by the deferential "essence test." Under the essence test, the reviewing court first determines if the issue as properly defined is within the terms of the collective bargaining agreement. 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; a court will vacate an arbitrator's award only where the award "indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement." Cheyney University, 743 A.2d at 413.

Nevertheless, in Westmoreland Intermediate Unit # 7, supra, our Court determined that the essence test was subject to a narrow public policy exception. 939 A.2d at 865-

66. Specifically, initial judicial review was to be conducted under the essence test. If the arbitration award satisfied essence test review, our Court explained that a court could nevertheless further consider whether the award violated public policy. Our Court narrowly defined the public policy to be applied as one which was well-defined, dominant and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. Id.

Act 111's narrow certiorari standard is stricter than application of the essence test. That is to say, an arbitration award may be judicially vacated under the essence test where such award would be upheld under narrow certiorari. Indeed, under narrow certiorari, a court is limited to reviewing only questions concerning: (1) the jurisdiction of

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the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator's powers; and (4) deprivation of constitutional rights. Betancourt, 656 A.2d at 89-90. This makes some sense, as most employees covered by PERA have a limited right to strike, however, under Act 111, due to the essential nature of their services, police officers and fire fighters are denied the right to strike. Thus, under narrow certiorari review, an arbitrator's award under Act 111 is insulated from judicial vacatur in the extreme. The circumscribed instances in which an arbitrator's award may be rejected under narrow certiorari raises one of the questions at issue in this appeal ─ the propriety of a public policy exception to narrow certiorari review, akin to our Court's recognition of a public policy exception to the essence test under PERA.

Over 25 years ago, we rejected the possibility of a public policy exception to narrow certiorari review in Pennsylvania State Police v. Pennsylvania State Troopers' Association (Smith), 741 A.2d 1248 (Pa. 1999). I believe the reasoning undergirding our decision in Smith was flawed when decided, and that its reasoning has become outdated in light of subsequent decisions by our Court. Thus, I do not believe that Smith should constitute a bar to our reconsideration of the adoption of a public policy exception to narrow certiorari.

In Smith, a state trooper, while off duty, became intoxicated and got into an argument with an ex-girlfriend. The argument was highlighted by the state trooper jamming his loaded, police-issued weapon into his ex-girlfriend's mouth and threatening to kill her. The state trooper was arrested later that day for driving under the influence, simple assault, and making terroristic threats, charges to which he subsequently plead guilty. The Pennsylvania State Police then terminated the officer's employment. The trooper grieved his termination, and while an arbitrator determined that Smith had committed the acts in question, the penalty of discharge was too excessive, primarily

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finding that the trooper's conduct was less egregious than actions of other troopers who received less discipline in similar circumstances. He also relied on the fact that Smith had an exemplary record over a 13-year career and had been under stress as a result of working at the Pittsburgh crash site of a commercial passenger plane in the fall of 1994. The State Police challenged the arbitrator's award, arguing, inter alia, that the decision was contrary to public policy and, thus, that the arbitrator exceeded his powers under narrow certiorari review. The Smith Court rejected that argument. First, the Court found that adopting the State Police's position would impermissibly broaden the narrow certiorari scope of review. The Court concluded that "public policy"

was a "nebulous concept" and that broadening the narrow certiorari scope of review to include such a basis for review would "greatly expand the scope of review in these matters" and "markedly increase the judiciary's role in Act 111 arbitration awards." Id. at 1252-53. Second, our Court warned that, if adopted, a public policy exception would "not be interpreting Act 111 but rather would be rewriting it." Id. at 1253. In my view, our decision in Smith should not prevent our Court from adopting a public policy exception to narrow certiorari review. The doctrine of stare decisis mandates courts generally follow established precedent to ensure predictability, consistency, and stability in legal principles, fostering reliance on judicial decisions. However, adherence is not absolute; courts may deviate when prior rulings were wrong when decided, prove unworkable, or become outdated by changing circumstances or societal developments. There are several factors to consider in deciding whether to overrule a past decision, including the age and lineage of the decision, as well as "'the quality of [its] reasoning, the workability of the rule it established, its consistency with other related decisions, . . . and reliance on the decision.'" Commonwealth v. Alexander, 243 A.3d 177, 196 (Pa. 2020) (quoting Knick v. Township of Scott, Pennsylvania, 588 U.S. 180, 203 (2019)).

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Indeed, our Court is not "bound to follow precedent when it cannot bear scrutiny, either on its own terms or in light of subsequent developments." William Penn School District

v. Pennsylvania Department of Education, 170 A.3d 414, 456 (Pa. 2017). As our Court has oft stated, stare decisis does not lock our decisions in stone, but, rather, is a "legal concept which responds to the demands of justice, and, thus, permits the orderly growth process of the law to flourish." Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, 309 A.3d 808, 850 (Pa. 2024).

In my assessment of these factors, Smith fails to withstand scrutiny. First, the quality and soundness of the Smith Court's reasoning was lacking when rendered, and fails to withstand the test of time. In an analysis spanning barely two paragraphs, the Court rejected the adoption of a public policy exception to narrow certiorari review for two reasons. First, the Court reasoned that "public policy" was a "nebulous concept" which

"may be defined by a particular appellate court," and adopting it would "greatly expand the scope of review in these matters" and "markedly increase the judiciary's role in Act 111 arbitration awards." Id. at 1252-53.

However, the Smith Court's characterization of public policy considerations as

"nebulous" and capable of differing judicial definitions is belied by prior and subsequent decisions of our Court. Indeed, our Court has made clear that it is quite capable of defining vague terms. See William Penn School District, 170 A.3d at 455 ("Courts give meaning routinely to all manner of amorphous constitutional concepts, including those that lie at the intersection of legislative prerogative and judicial review. And they do so while still leaving room for future development by whatever government body or mechanism the law fairly prescribes.").

As to notions of public policy, our Court has routinely employed the concept of policy to thwart injustice and protect the public weal. See, e.g., Socko v. Mid-Atlantic

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Systems of CPA, Inc., 126 A.3d 1266, 1273 (Pa. 2015) (finding at-will doctrine subject to exceptions including "judicially-created notions of public policy."); Minnesota v. Greenfield, 855 A.2d 854, 866 (Pa. 2004) (precluding recovery of damages pursuant to an insurance contract on public policy basis); Waychoff v. Waychoff, 163 A. 670 (Pa. 1932) (rejecting agreement for layperson to receive portion of an attorney's fees for procuring litigation as contrary to public policy); McCormick v. Hanover Township, 92 A. 195, 197 (Pa. 1914) (determining employment contract with township for unconscionable amount contravened public policy). Thus, the quality of the Smith Court's reasoning in this regard was faulty from its inception.

Even more importantly, Smith's reasoning has become outdated in light of our subsequent 2007 decision in Westmoreland Intermediate Unit # 7, wherein we embraced a narrow public policy exception under PERA. In that decision, there was no suggestion that the concept of public policy was too vague, ill-defined, or subject to differing court interpretations, or that it would improperly increase the role of the judiciary in reviewing arbitration awards under PERA. Thus, in my view, the Smith Court's first stated basis for rejecting a public policy exception was flawed at the time, and has become unsustainable in light of our subsequent express adoption of a public policy exception under PERA. Simply stated, perpetuating Smith's reasoning does not account for changes in labor relations and prevents "the orderly growth process of the law to flourish." Allegheny Reproductive Health Center, 309 A.3d at 850.

Related thereto, the Smith Court feared that a public policy exception would expand the scope of review and increase the judiciary's role in Act 111 arbitration awards. Of course, any exception to narrow certiorari review would expand the judiciary's role. However, the same can be said of the public policy exception to the essence test, and,

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yet, the Court's experience under that standard has not led to protracted litigation or undue judicial intervention, due to the limited nature of public policy review. The second rationale in Smith for rejecting a public policy exception under Act 111 was equally flawed. The Court contended that, if a public policy exception were adopted, the Court would "not be interpreting Act 111 but rather would be rewriting it." Smith, 741 A.2d at 1253.

This reasoning failed to appreciate the nature of a public policy exception, which is judicially created, and, thus, ipso facto, not an interpretation, or a rewriting, of a statute. Moreover, such statement is somewhat disingenuous coming on the heels of our Court's finding authority to review of Act 111 arbitration awards where Act 111 not only did not speak of such review, but specifically eschewed any judicial intervention. 43 P.S. § 217.7(a) (stating that regarding an arbitration award, "[n]o appeal therefrom shall be allowed to any court."). Of course, as noted above, our Court has found judicial review of arbitration awards under Act 111 to be proper, without "rewriting it," as would the adoption of a public policy exception to narrow certiorari review.

Further, this flaw in the Smith Court's reasoning becomes obvious in (again) considering our Court's subsequent decision to allow for a public policy exception to the essence test under PERA. Our Court in Westmoreland Intermediate Unit expressed no hesitation in embracing a narrow public policy exception due to "rewriting" PERA, which by its terms called for "final" and "binding" arbitration. 43 P.S. § 1101.903 Again, the Smith Court's stated reasons for rejecting a public policy exception to narrow certiorari is not longer valid in light of subsequent developments in the law. Our decision in Smith is a quarter century old; its reasoning was dubious when written and cannot withstand the subsequent developments and passage to time in this area of the law. Accordingly, Smith should be overruled, and at least not constitute a bar

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to adopting a public policy exception to narrow certiorari review in this case. Estate of Fridenberg v. Commonwealth, 33 A.3d 581, 590 (Pa. 2011) ("When precedent is examined in the light of modern reality and it is evident that the reason for the precedent no longer exists, the abandonment of the precedent is not a destruction of stare decisis, but rather a fulfillment of its proper function.").⁶

With Smith placed aside, I believe we can and should address whether a public policy exception to narrow certiorari should be adopted under Act 111. And, in my view, we should do so.

First, as noted above, the intent of the General Assembly in enacting both Act 111 and PERA was to balance the rights of workers with the protection of public health, safety, and welfare. The recognition of a limited public policy exception would be consistent with that balance and constitute a reasonable accommodation of the sometimes competing goals of dispute resolution by final and binding arbitration and the protection of the public weal. Simply stated, I do not believe that our Court should countenance an arbitration award that contravenes our Commonwealth's public policy.

In my view, such an exception is especially necessary considering law enforcement's essential role in our Commonwealth. Due to police officers holding positions of trust in our communities, the significant authority and powers which police officers possess, our citizenry's reliance upon police officer integrity, as well as essential public expectations and trust in our police, and the negative ramifications when that trust

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is breached, I believe it entirely appropriate to hold police officers to a higher standard of conduct than other citizens, including other public employees. Accordingly, I find it eminently reasonable to allow for a limited exception to narrow certiorari review to consider whether an arbitrator's award violates our Commonwealth's public policy. We adopted a public policy exception under PERA 20 years ago to ensure that our Court does not enforce an arbitration award that contravenes public policy. That recognition of such an exception has not resulted in protracted litigation, labor unrest, or undermined the goals of PERA. I conclude that adopting a limited public policy exception to narrow certiorari review is even more appropriate here. Indeed, the need for such a public policy inquiry is made manifest by the circumstances in this appeal involving an arbitrator's reinstatement of a police lieutenant who sent sexually explicit texts and a pornographic bestiality video involving a dog and a women to female subordinates and then pressured one of the officers to lie to and not to cooperate with internal investigators. Moreover, it has been almost 60 years since the enactment of Act 111. The relationship between police officers and their employers that was once characterized by chaos and violence is now largely characterized by harmony and peace. It is a mature labor relationship. I do not believe that the adoption of a limited public policy exception to narrow certiorari review would upset this status; it has not done so in the last 20 years under PERA.

Additionally, our Commonwealth would not be an outlier in this regard, as numerous other states courts have recognized a narrow public policy exception regarding judicial review of arbitration awards involving police officers. See, e.g., State v. Public Safety Employees Association, 257 P.3d 151, 160 (Alaska 2011); Town of South Winsor

v. South Winsor Police Union Local 1480, 770 A.2d 14, 23-24 (Conn. 2001); City of Boston v. Boston Police Patrolmen's Association, 78 N.E.3d 66, 73-74 (Mass. 2017);

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Police Officers Association of Michigan v. County of Manistee, 645 N.W.2d 713, 717-18 (Mich. App. 2002); City of Richfield v. Law Enforcement Services, Inc., 923 N.W.2d 36, 40-41 (Minn. 2019) (assuming but not deciding existence of a public policy exception); City of Livingston v. Montana Public Employees Association, 339 P.3d 41, 47 (Mont.

2014).

For these reasons, I would adopt a public policy exception to narrow certiorari review under Act 111. Under this exception, a court would not enforce a grievance arbitration award that contravenes public policy, if such public policy is well-defined, dominant, and ascertainable by reference to the laws and legal precedents and not from general considerations of supposed public interests. Westmoreland Intermediate Unit,

939 A.2d at 865-66. Accordingly, given that I would adopt this exception, I would remand this matter to the Commonwealth Court for consideration of whether the arbitrator's award is violative of the public policy of the Commonwealth.

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