*1 Energy, Depart- not at all.” UMCO v. Inc. Protection,

ment Environmental FRATERNAL ORDER OF POLICE (Pa. 530, 2007) (quoting A.2d 1, Cmwlth. FORT PITT LODGE NO. Company Insurance Amer- North Petitioner Life ica Department, v. Insurance 43 Pa. v. 282, 297, (1979)). Cmwlth. An A.2d equal protection claim proper- fails when a PITTSBURGH, CITY OF Respondent ty merely alleges owner that state laws applied have against prede- could been City of Pittsburgh, Petitioner cessor in title but not. Sta- Anselma tion, Associates, Inc., Ltd. v. Pennoni v. 608, (Pa. 1995).

A.2d Cmwlth. Cornell Fraternal Police Fort Pitt Borough contends that should have 1, Respondent taken against action similarly situat- properties compliance ed with the No. 1429 C.D. 2016 However, Fire Code. the Borough does No. 1512 C.D. 2016 have to respond every violation of the Fire Code an identical fashion. The Commonwealth Court of Pennsylvania. Equal Protection Clause Fourteenth Argued: April 5, 2017 require

Amendment does not uniform en- Ignelzi forcement an ordinance. v. Zon- 17, Decided: ing Adjustment Board Pittsburgh, 90 Pa.Cmwlth. 495 A.2d (1985). 636-37

Conclusion reasons,

For foregoing affirm we grant

trial court’s of summary judgment to

Borough and Yerkes.

ORDER NOW,

AND this 14th day July, of the Court of Common order Pleas of

Montgomery County, August dated

2016, in the above-captioned matter

hereby AFFIRMED.

246 MARY

BEFORE: HONORABLE LEAVITT, Judge, HANNAH President COHN HONORABLE RENÉE JUBELIRER, Judge, HONORABLE SIMPSON, Judge, ROBERT COVEY, Judge, E. HONORABLE ANNE H, WOJCIK, MICHAEL HONORABLE Judge, K. HONORABLE JULIA . HEARTHWAY, Judge, HONORABLE COSGROVE, Judge M. JOSEPH BY JUDGE OPINION COHN JUBELIRER 2003, (City) of Pittsburgh financially city designated a distressed Community Department (DCED) Development pursuant Economic Recovery Financial Municipalities (Act 47), Act into Act1 and entered process, oversight. part of the Act As several Act 47 implemented recovery plans, most Second recent (2014 Recovery Plan Amended Plan). here', Plan ad Relevant em City’s dresses police including its officers. The ployees, of Police City and the Fraternal (FOP), repre Fort Pitt officers, parties police City’s sents agreement (CBA) on December 2014. expired agreement reach Being unable to CBA, they into interest arbi new entered Governing tration Collective ro Bargaining by Firemen2 Policemen 111). (Act (Board) An board arbitration issued, an interest (Award), FOP from which to this cross-appeals Court. Court, FOP appealed directly to this Poulson, Philadelphia, pe- Richard G. asserting a deviation titioner. Plan does not the 2014 because re- Love, Pittsburgh, competitive re- ensure the K. Gretchen (FOP’s Br. at 25 quired by the 2014 Plan. spondent. P.L, amended, 24, 1968, amended, 2. Act June P.L. Act of 217.1-217.10, 11701.101-11701,712. §§ §§ 43P.S. 53P.S. 258a-61a).) FOP, therefore, (citing However, R.R. recently that, 252(e) pursuant contends amended Section allow 11701.252(e), of Act 111 arbitration deviate from an can Court review the Award determine under certain circumstances if the Board’s deviation is accordance to provide *3 for a to this (cid:127) 252(b) 47, with of Act Section 53 P.S. Court of an doing award so. 53 P.S. 11701.252(b).3 § City argues The that the § (b.l), (e). 11701.252(b), Prior to the Award was- consistent the 2014 Plan with amendment, provided Section 252 that “a that really challenging, FOP is not the collective bargaining agreement or arbitra- Award, Plan, but the 2014 not which does tion settlement executed after the adoption provide this jurisdiction Court with of plan in any violate, shall not manner 252(e). Section Because the com- Award expand or diminish provisions.” its Former allocations, plies with the Plan’s 2014 § added). (emphasis P.S. 11701.252 City argues the does not Award, deviate City Scranton, Supreme our ap- Court ap- and the normal plied this section where a board of arbitra- peals process City should be followed. The tors issued an 111 interest has Quash therefore filed a to Motion award, which set that rates Petition for FOP’s Review.4 the limits in .municipality’s exceeded plan. municipality argued The challeng for Typically, authority arbitrators lacked the to do ing an begins interest' arbitration award so “violate, because the award could not filing petition with to vacate with the expand or dimmish” provisions of its (com county local pleas court of common City Scranton, plan. Act 47 29 A.3d at pleas), mon with further neces reviewing After statutory lan- sary. City Firefighters Scranton v. Lo guage, the Court found that it was unclear 60, cal Unión No. Fire Ass’n of of Int’l an Act 111 whether interest “arbitration Fighters, 612 Pa. 29 A.3d 778-79 was an “arbitration (2011). Here, award” settlement” addition “violate, that could not Court, expand or before this FOP dimmish both and the provisions,” [an Act 47 petitions have also filed vacate the plan’s] former 11701.252(a). § Award, currently pending Id. at 789. Because the before “policies Allegheny underlying the Court of Common Pleas interest arbi- County.5 strong engrained tration too and- [were] prejudice 3. FOP also granted. (City’s asserts the Award violates Section if its Motion was because, n.7.) although it deviated Memorandum of Law at 30 did not Award make all 252(b) (b.l) findings required by petitions 5.The are docketed at GD-16- for it to do so. petition 016074. FOP in its for re- includes view to this Court the issues it raises in also 1972(a)(7) Pennsylvania petition 4. See Rule pleas, its to' vacate before common Procedure, Appellate Rules of including argument Pa. R.A.P. . an "the Award vio- 1972(a)(7) (authorizing party Pennsylvania to move lates Article "[t]o Section 31 of the Const., quash 31,] any appearing Pa. art. im- reason Constitution^ record”). cross-petition The properly delegating also fíled a to Act 47 Plan coordina- review, asserting infringes responsibilities exclusively tors conferred (FOP’s upon managerial prerogatives, in the event municipality.” Petition for ¶ juris- the Court that' it does have filed Review an amicus brief determines DCEP responding diction to review the offered challenge Award. The to FOP’s constitutional cross-petition to withdraw its for review with to the Award. public-sector ipality, Commonwealth labor law measured criteria set 201; by extrapolation or on ac- forth section displaced be reference,” ambiguous (3)is count with the policy inconsistent that if Court stated want- 102(a) objectives forth in set section displace policies, ed these do should relieve the financial distress the dis- to. explicit so “in terms.” Accordingly, Id. municipality. tressed (b.l) Court held that an interest arbitration Exception. (b)(1) —Subsection pursuant render an could apply expenditures to a limit on Act 111 that exceeded the an individual unit that is of Act plan. limits arbitrary, capricious determined be faith. Legislature subsequently amended *4 (c) Hearing before board of arbi- 252,6 explicitly expressing Section its in- expert testimony. tration and is- —The tent to allow an Act 111 arbitration board sue of whether an arbitration settlement to deviate from an Act plan, only but if deviating plan from the cri- satisfies the the criteria set forth in that section are (b) any teria under subsection and ex- 11701.252(b), (b.l). § met. 53 P.S. Where (b.l) ception under subsection must be is there a from Act deviation by determined of board arbitration Legislature also ap- created appointed under [Act 111] reflected Court, peal to this an exception to the in of findings supported fact that are by normal appeal of Act 111 awards. substantial evidence consistent with 11701.252(e). § 53 P.S. entirety, its Sec- this During hearing, section. the tes- provides: tion 252 now timony experts finance, of in municipal (a) Except pro General rule. — by the municipality called distressed or (b), in vided subsection collective bar bargaining organization, collective gaining agreement or arbitration settlem admissible as evidence before the board. ent[7] adoption executed after the of a An deviating arbitration settlement plan any violate, in not manner plan supported by be must the credi- expand or provisions. diminish its testimony an expert ble in municipal (b) po- Arbitration settlements for finance that the arbitration settlement licemen and firemen. —An arbitration (b) satisfies the in criteria subsection 111], settlement rendered under [Act under, exception any subsection may plan, deviate from if only but (b.l). subsection, For purposes of this the arbitration settlement: the term “expert municipal finance” (1) except forth in as set subsection means an holding individual an advanced (b.l), will not cause distressed mu- degree eight years who at least nicipality any expen- exceed limits on experience relating in issues to munici- bargain- ditures for individual collective pal finance.

ing imposed plan; units under (d) Review coordinator. —An ar-

(2) jeopardize will further the fi- bitration deviating settlement from the (b) stability nancial of the plan distressed munic- subsection pro- under must be 6. Section 3 of binding P.L. term or includes a final 1104. or Section 103 determination.” (emphasis § of Act 53 P.S. 11701.103 7. The term "Arbitration settlement" is defined added). adjustment "An or settlement of a collec- bargaining agreement tive dispute. The trary, chairman 'capricious vided coordinator faith. of arbitration within 48 hours issuance. The coordinator shall added). (emphasis 11701.252 review the arbitration settlement de- did not alter the whether it violates section. termine this appeal process challenging normal in terest Act 111 in arbitrations under its (e) Appeal. distressed munici- —The amendment Section Under pality, organization terms, process to the direct this or secretary and the coordinator have 252(e) only Court in if is available right Commonwealth award deviates 47 Plan. from an Court arbitration settlement Therefore, this case deviates time, properly be before this Court (b). subsection the Award mdst from the 2014 deviate Plan. (1) An appeal must be commenced days later than after issuance The City’s recovery coordinators

the arbitration settlement. (Coordinators) amended, developed, implementing assisted (2) The record arbitration set- addressing the which focuses on part tlement becomes the record *5 (Award, City’s operational deficit. Factual appeal. may supplement The court also ¶¶ (FD) 37.8) Determinations the record. establishes, part, Plan in maxi- relevant (3) for mum the alleges To the extent allocations an City’s secure Pitts- workforce “better an arbitration settlement violates burgh’s sustainability,” health financial and section, gov- this the standard of review target being with the outcome “[m]aintain- erning ing budget competitive com- stability and by governed settlement this section shall (R.R. 258a.) pensation.” at The maximum be de novo. The court shall be bound police workforce for the force allocations legal or the factual conclusions the $82,675,892 2015; $84,342,072 in in are: Nothing arbitration. in this sub- 2016; $86,611,958 2017; and'$89*990,263 in section be construed otherwise (Id. 258a-59a.) Wage in 2018. increases at scope affect the or standard review following were at rates: authorized the applicable to certiorari review arbitra- year “No Across-the-Board in Increase” tion awards. two; one; in one-percent year increase (4) setting The coordinator’s decision three, years in two-percent and increase expenditures a limit on for an individual (Id. five, 260a.) four, beyond. at In and unit under section allocations,- creating these workforce the 241(11) shall not be on appeal costs, disturbed the both Coordinators considered term, allocations, limit is long unless the arbi- short of those determined be and improve position, 8. The re- Award contains 83 factual determina- taken to its fiscal the tions, following which the Board issued quired the its contributions must make to days evidentiary hearings, written submis- pension plan post-employment and other ben- parties, sions the and several executive- (OPEB) fund, required efits trust the levels of sessions. The Award makes numerous find- funding City must maintain in various ings regarding lems, City’s prob- initial fiscal accounts, helped how events have and certain City's improving well-being fiscal City’s progress or hindered the towards fiscal recovery process progressed, spe- has recovery. cific actions and investments the but noted that City’s funding needs and the City[’s] ... ^[2014] Plan.” (Award 10.) directly sustainability Paragraph at 10 of the left little Award “long-term its (PD ¶¶ 64-65.) wage adopts the increases set forth in workforce allocations.” productivity, workforce benefit in the graphically “that the workforce as the sions,” majority of the Board After ^[2014] City's financial levels considering market comparable political subdivi- Plan are not in economically allocations contained situation, inflation, size, arbitrary, and factors, and demo- concluded “pay capri- such and provisions tract found from. at that 2014 acknowledges 23.) expenditure limits for deviated, diverged, of the 2014 relying upon Plan. in that the Board “relied the” (Award 10.) or Plan. ¶ adopting the Award has strayed the FOP con- (FOP’s And there- these POP Br. argument in faith” and that FOP’s devi- cious Award “actuarially to en- ates from the 2014 Plan is based on not be sound it would ¶¶ (Id. 68-81, 83.) following pension statement contained in the hance benefits.” “Target Maintaining forth terms Plan: outcome: Accordingly, Board set CBA, competitive compen- budget stability of the new conditions (R.R. added).) unanimously agreed (emphasis sation.” upon. not all 258a “wage required POP asserts that the 2014 Plan Specifically, the Award addresses payment competitive compensation for full-time officers and adjustments” 2015, one-per- in adopts require- the no and the Board deviated increase two-percent by not increasing ment cent increase police as set forth officers in Howev- increases Award. ¶ (Award er, provision Other Plan.9 our review this entire re- the 2014 wage change than this veals that set “the purpose increase schedule, did maximum not alter dollars available each bar- salary gaining unit ... in each year, structure had inclusive existed *6 ¶ (Award prior (stating improvements CBA. to compo- “[a]ll increases and all provisions Agreement employee compensation of the nents other remain, (Id.) is”); pensions 6 of the 2010-2014 than Section and retiree health.” 27-30, 40a-43a; statement, Agree- than this provision R.R. at Other the CBA. at City amending POP does not further discuss the ment between maintenance 6(f) rates) (base wage 2010- or competitive the Section otherwise CBA, 'l60a-61a, 166a.) require, argues, in- City at as POP the to R.R. crease to ensure com- such face, not On its. the Award does deviate Thus, petition. no “competitive there was To 2014 Plan. deviate is “di- compensation” requirement mandating an ,.. verge stray esp. or turn aside [or] in compensation increase from which the standard, principle, topic.” or Web- aside, diverged, strayed Board or turned Dictionary International ster’s Third New in issuing the Award.10 (2002). Award states that The argues not the Board’s intent the Award “be POP also the should Board consistent with the terms of Act 47 have relied the workforce applied allocations 9.. The (cid:127)' (Award dissented from FOP-appointed paragraph arbitrator of the specifically Award. port[ance]” Legislature’s broadening "from the ^[2014] thereby Plan and not giving of Section 252 to negates effect to their im- allow an interest to deviate holding and a 10. The dissent contends this "excis- from an direct "competitive compensation” es” the when an award this Court does so. words Fraternal in the 2014 Plan because allocations those ORDER arbitrary, are capricious, NOW, the Motion to However, objections to faith. alloca- Quash Petition for by Review City filed tions the 2014 Plan are differ- contained Pittsburgh (City) GRANTED, hereby is from-a ent claim that the Award deviated petition and the by review filed majority the 2014 Plan. The of the Fraternal Police Fort Pitt rendering Board used those allocations cross-petition 1 and the for review Award, concluding that the allocations by QUASHED. filed hereby are arbitrary, not capricious, estab- Application Leave Withdraw faith, .lished in .bad and therefore neither Appeal by filed is therefore DIS- finding required by Section made MISSED AS MOOT. 252(b.l) justify deviating from the 2014 Plan nor deviated from the 2014 Plan. 53 DISSENTING OPINION BY JUDGE (cid:127) 11701.252(b.l). objection FOP’s is COSGROVE really to the terms of the Award, objection quashing not fall does Fraternal Order of Police Lodge, Fort Pitt 1No. category ap- within the narrow ' Petitioner), (Designated Majority 252(e). peals by authorized Section into Municipalities reads Section 252 of the there is Because no between deviation (Act 47)1 Financial Recovery some- , the Award and the the direct thing which the not intend. did 252(e) appeal process in is not result, aA.s I am compelled dissent. Rather, applicable. challenges to to, restating its protect While fi- intent Award should follow the normal nancially municipalities, distressed pleas. Accordingly, to common Assembly in the General twice last five City’s to Quash granted, Motion and the years amended 47 to cir- address petition for review FOP and the filed present cumstances such as those in the cross-petition review filed changes before us. case These were de- quashed.11 signed to loosen the contours collec- bargaining process origi-

tive which were Judge McCullough participate did nally imposed arising on matters *7 in prior the decision these cases. 47’s incarnation. Under that Plan, Police 1 in Port Pitt v. increases set forth which the 2014 J., "preserve up” Pittsburgh, (Cosgrove, “keep from ... decline” A.3d "CONTINUE,” dissenting), wages. op. respectfully disagree. the at 252. We Rather, that, opinion recognizes our because adopts wage 15, 2017, and relies May the Applica- increases On 11. filed an expenditure forth in Appeal limits set (Applica- tion for to Leave Withdraw Plan, tion), asserting it cannot to from the in be said have deviated the issue raised cross- that, (Application petition had become at 1- 2014 Plan. We also note to "maintain” is moot. jurisdiction, quash up: we we "preserve "keep Because lack to ... decline”-or to Nevy City’s cross-pfetition reason for review CONTINUE.” Webster’s Third Internation- Therefore, Application (2002), and will dismiss the as therefore Dictionary target al moot. "maintaining in the ... outcome 2014 Plan of (R.R. (em- competitive compensation,” at 258a added)), amended, require phasis which does increas- 1. ofAct P.L. as ing compensation, wage §§ is consistent with 53P.S. 11701.101-11701.712. scheme, municipality operat- present was as and to whether where a determine to it is ing pursuant it with the which complies an however, bargaining agreement Majority, completely or arbitration reso- based. The adoption of the Plan lution after these words from Plan executed excises stone, essentially with no oppor- negates they set in their to it if import was move, tunity Majority astonishing alteration. As the rec- This is an never written. ognizes, legislative broadening allows for the revised treats the one which an as if it were a “deviation] [P]lan revised Section 252 draft, provide[s] for ] certain circumstances and [ mere appeal to this Court an a direct taking steps it did with Section doing Op. at Majority so.” It See 247. Assembly recognized General interprets this appears Majority allowing to importance appeal direct narrowly to to permission so “deviat[e]” in this Court matters like this. an Such strangle of meaning. It is here that the helps to appeal complicated streamline a Majority I and differ. allows for a swift resolution case, present In the the Majority and as by fur- which otherwise be would denied recognizes, specifically the Plan at issue Majori- at a litigation ther lower level. The “[mjaintaining competitive ... com- made ty judicial case to strains its muscle this pensation” determining issue otherwise, doing, so renders find police paid to be officers the corrective measures Pittsburgh. Majority in the atOp. meaningless. nearly According to Designated 260-51. Petition- proceed, this As I would allow er, provide failure at a I must dissent. competitive rate constitutes deviation entitling it to thus to this simple point Court. This is Majority In- somehow misses. allowing appeal, Majority stead provision” to the “entire

looks where this found, summarily

statement deter- STORES, GIANT FOOD purpose mines that “its to set ‘the LLC, Appellant maximum dollars each bar- available ... gaining year, unit each inclusive v. improvements compo- increases and all PENN TOWNSHIP of employee compensation nents pensions than and retiree health.” Id. at No. 1310 C.D. 2016 Finding no “further of] discussion compensation” maintenance of competitive Pennsylvania. Court of Commonwealth provision, Majority leaps within Argued: May *8 conclusion that no ‘competi- “there was compensation’ requirement” tive Decided: strayed. at issue Id. “competitive compensation” The words rich meaning with in the collective

bargaining context. They provide a frame- from which to judge

work an award such