IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Colella, : Appellant : : v. : No. 2039 C.D. 2012 : Submitted: June 17, 2013 Borough of Wilkinsburg and : Civil Service Commission of Borough : of Wilkinsburg : BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 15, 2013

Richard Colella (Colella) appeals from an order of the Court of

Common Pleas of Allegheny County (trial court) dismissing his statutory appeal

from an order of the Civil Service Commission (Commission) of the Borough of

Wilkinsburg (Borough) that denied Colella’s request for re-designation of his

separation from employment from a voluntary quit to a furlough or layoff due to

the Borough’s closure of its fire department on March 31, 2011. The Commission

also denied Colella’s request for compensation and benefits under an arbitration

award issued pursuant to the statute known as the Policemen and Firemen

Collective Bargaining Act or Act 111 (Act 111).1 Upon review, we affirm.

1 Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§217.1-217.10.

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I. Background

In its decision, the Commission made the following findings. The

Borough employed Colella as a fire fighter since December 1993. Comm’n Dec.,

2/8/12, Finding of Fact (F.F.) No. 1. At the time the Borough closed the fire

department, Colella held the rank of captain. Id.

The International Association of Fire Fighters (IAFF) Local No. 839

(Local 839) represented the Borough’s fire fighters. F.F. No. 2. Prior to 2002, the

Borough and Local 839 entered into several collective bargaining agreements

(CBAs). However, since 2002, the Borough fire fighters’ wages, benefits and

other working conditions were established by successive Act 111 interest

arbitration awards. F.F. No. 13.

Relevant here, the Zobrak Award, issued in 2004, primarily dealt with

manning issues, including the minimum number of fire fighters per shift. See

Comm’n Hr’g, 10/17/11, Colella Ex. #5; Reproduced Record (R.R.) at 77a-79a.

However, the award also provided for certain benefits to fire fighters who were

laid off due to a reduction in force. More specifically, the Zobrak Award provided:

If the Borough lays off current firefighters, the laid off employee shall be entitled to the following compensation and benefits: 1. The laid off employee shall receive one month’s [sic] of health insurance at the current level of coverage … for each year of that employee’s service. 2. The laid off employee shall receive payment for all vacation time earned at actual per diem rates or $100 per day, whichever is higher and payment for all accumulated sick leave at $100 per day.

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* * * * 4. A laid off firefighter at any time may elect to waive all recall rights. If the firefighter waives such rights, the laid off firefighter shall receive a lump sum payment of $2000 for each year of service and major fraction thereof.

Id. at 2-3; R.R. at 78a-79a.

The Dissen Award, issued in June 2005, modified the manning

provisions of the Zobrak Award. See Borough Ex. #8; R.R. at 147a-51a.

However, the Dissen Award did not expressly alter or replace the layoff

compensation and benefit provisions of the Zobrak Award.

In 2008, the Borough and Local 839 again proceeded to interest

arbitration. The First Miller Award, issued in April 2009, contained a “Reopener”

provision, which stated that in the event the Borough considers contracting with

the City of Pittsburgh (City) for fire services, “either party shall be entitled to

request a reopener to address the Borough’s decision to contract with the City and

to address any impact issues that the parties may raise.” See Borough Ex. #11,

App. A at 4; R.R. at 163a (emphasis added).

Although the Borough and Local 839 resolved most of the issues

regarding the proposed Intergovernmental Agreement for Fire Protection Services

(Fire Services Agreement) with the City, the parties returned to interest arbitration

under the Reopener provision to address certain unresolved issues, including

whether the layoff provisions of the 2004 Zobrak Award remained in effect and

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whether an employee’s choice not to accept employment with the City shall be

considered a voluntary resignation.

To that end, the Second Miller Award, issued April 23, 2011,

provided (with emphasis by underline added):

AWARD

1. Employees who have elected not to join the Pittsburgh fire service. The parties have advised that as part of the contract for fire services, the [Borough] secured from the [City] an agreement by the City to offer all Wilkinsburg Firefighters the opportunity to join the Pittsburgh fire service. All but two of the Borough Firefighters have indicated an intent to join the Pittsburgh Fire Service. Of the two who elected not to join the Pittsburgh fire service, one has indicated an intent to retire from the Borough on the effective date of the transfer of responsibility from the Borough to the City and one has indicated that he has rejected the City’s offer of employment.

* * * * The firefighter who elected to reject an offer of employment with the City fire service shall be considered to have voluntarily resigned from his position effective April 1, 2011. In reaching this determination, it is specifically noted that [Local 839] ably advanced two arguments, both of which are rejected. First, the union asserted that the layoff provisions of the 2004 ‘Zobrak’ Award remain in effect. A majority of the panel expressly rejected such assertion and it is determined that those provisions only applied to the loss of manning particular to that award, and thus, expired and were no longer applicable once the

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subsequent award was issued in 2005. Moreover, even ignoring the fact that the provisions of the 2004 Award expired, it is determined that job opportunities were made available by the [City] for all of the members of the Wilkinsburg Fire Department and that any employee electing not to accept City employment should and will properly be considered to have voluntarily resigned his position as of April 1, 2011. No payment shall be due to such employee under the Collective Bargaining Agreement except as may be applicable under Paragraph 2 of this Award relating to unused vacation and personal time. 2. Unused Sick, Vacation, and Personal Leave. The union advanced a request for payment of accumulated sick, vacation and personal leave. The Borough opposed these payments. It is determined that, except as may be applicable under the terms of the Collective Bargaining Agreement with respect to the single retiree referenced above, there shall be no payment for unused sick leave. However, employees shall be paid for the amount of accumulated unused vacation and personal leave as of the last date that the employees are in the service of the [Borough].

Borough Ex. #11 at 2-3; R.R. at 154a-55a.

As indicated by the Second Miller Award, the Borough and the City

entered into the Fire Services Agreement effective April 1, 2011. As part of the

agreement, the City provided the Borough’s fire fighters with the opportunity to

accept employment as City fire fighters and join the City fire fighters’ union, IAFF

Local No. 1 (Local 1). See Borough Ex. #6 (Fire Services Agreement) at 4; R.R. at

96a.

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With the exception of one fire fighter who retired, all Borough fire

fighters, including Colella, completed a form indicating they would accept a

position with the City. However, prior to the Borough’s closure of the fire

department, Colella notified the Borough by letter that he changed his mind.

Colella’s letter stated:

It is at this time I have decided against accepting an offer of employment with the [City]. I have thought long and hard, and along with my family have decided this would not be a good move for me. … I plan to continue with the Borough Fire Department as long as it is in existence and will consider myself a laid off employee after the proposed takeover date. I am going to leave my vested pension with the Borough and will notify the borough on my 52

nd birthday

of my intentions to begin collecting this benefit.

Colella Ex. #3; R.R. at 75a.

Nonetheless, the Borough’s manager, Marla Marcinko (Borough

Manager) advised Local 839 by e-mail dated March 31, 2011 that “[Colella]

decided to voluntarily quit the fire service rather than accept the fire fighter

position offered by the [City].” Colella Ex. #4; R.R. at 76a. Borough Manager

further stated Colella’s “last day as a Borough employee” would be March 31,

2011. Id.

Colella appealed to the Commission from the Borough Manager’s

decision that he voluntarily quit. The Commission’s solicitor initially responded

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by letter that Section 1190 of the Borough Code2 (relating to removals) provides

the Commission with the statutory authority to determine whether a borough

suspended, removed or reduced in rank a member of its fire force for one of the six

fault-based reasons set forth in the statute. See Comm’n Ex. #2; R.R. at 63a. In

determining the Commission lacked jurisdiction to review the merits of Colella’s

appeal, the solicitor’s letter stated (with emphasis added):

[Colella’s] letter raises, before the Commission, the question as to whether [Colella] voluntarily quit the fire service department or whether [Colella] was furloughed from the fire service.

* * * *

I have not been able to find any statutory authority for the Commission to decide whether an individual having civil service rights voluntarily quit the fire department or whether that member was furloughed. It would appear that question really needs to be addressed in the Unemployment Compensation format rather than before the Wilkinsburg Civil Service Commission. As such it appears that there is no jurisdiction or authority for the Commission to review this issue … or make a determination as to whether the ‘quit’ was voluntary or whether your client was furloughed.

Comm’n Ex. #2; R.R. at 63a. In response to this notification, Colella filed a

mandamus action in common pleas court. To avoid the costs of defending the

mandamus action, the Commission provided Colella with a hearing.

2 Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §46190.

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At the hearing, Colella presented evidence in support of his position

that he did not quit or resign from the Borough’s fire department. See Notes of

Testimony (N.T.), 10/17/11, at 20; R.R. at 188a. Rather, he considered himself to

be furloughed or laid off. Id. at 21; R.R. at 189a.

Colella further testified he planned to continue working for the

Borough and inquired as to what other options were available to him. Id. at 21-23;

R.R. at 189a-91a. The Borough, however, did not respond. Id.

In addition, Colella testified he believed that under the Zobrak Award,

based on his 17.25 years of service, he would be entitled to a total of $64,650 in

compensation and benefits. Id. at 29-30; R.R. at 197a-98a.

The Borough presented testimony from Borough Manager regarding

the purpose of the Fire Services Agreement and the elimination of the Borough’s

fire department. Borough Manager stated the primary reason for entering into the

Fire Services Agreement was increased public safety. Id. at 47; R.R. at 215a. As a

result of the agreement, the Borough has a maximum of 24 fire fighters available

for a structure fire call. Id. at 48; R.R. at 216a. Prior to the agreement, a

maximum of eight fire fighters were available for a structure fire call. Id.

Borough Manager also testified that monetary savings played a role in

the Borough’s decision to close its fire department. Id. at 49; R.R. at 217a. The

difference between the annual cost of the fire services provided by the City and the

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operating cost of the Borough’s fire department was approximately $600,000. Id.

at 50; R.R. at 218a.

In addition, Borough Manager concluded Colella voluntarily quit by

choosing not to accept a position with the City. Id. at 50; R.R. at 220a. Borough

Manager further testified it was her understanding that the Dissen Award nullified

the furlough provisions of the Zobrak Award. Id. at 54; R.R. at 222a.

After the hearing, the Commission dismissed Colella’s appeal. In its

decision, the Commission determined the Borough acted in good faith and

provided sound reasoning for the termination and closure of its fire department.

F.F. No. 6. It is undisputed that the Fire Services Agreement provides better fire

service protection at a reduced cost. Id. The Commission further observed that

Colella presented no evidence challenging the Borough’s good faith in closing the

fire department. F.F. No. 20.

Additionally, the Commission found Colella decided not to accept the

City’s job offer “based on loss of seniority, pay differential and various other

benefits that were not part of being employed by the City of Pittsburgh.” F.F. No.

12. This finding is supported Colella’s testimony. See N.T. at 76-77; R.R. at

244a-45a.

The Commission also noted its limited authority under Section 1190

of the Borough Code to review this matter. To that end, the Commission

determined the Borough did not suspend Colella, remove him or reduce him in

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rank for any of the six fault-based reasons enumerated in Section 1190. However,

Section 1190 also provides (with emphasis added):

If for reasons of economy or other reasons it shall be deemed necessary by any borough to reduce the number of paid employes of the police or fire force, then the borough shall furlough the person or persons, including probationers, last appointed to the respective force. Such reduction shall be accomplished by furloughing in numerical order commencing with the person last appointed until such reduction shall have been accomplished. In the event the said police force or fire force shall again be increased the employes furloughed shall be reinstated in the order of their seniority in the service. The provisions of this paragraph as to reductions in force are not applicable to a chief of police.

53 P.S. §46190.

The Commission observed Section 1190 establishes a procedure for

layoffs and reinstatement. However, the Commission noted, Section 1190 “does

not address the elimination of a fire department or police department or what

benefits might be available to police or fire fighters when a municipal body

eliminates the entire department.” F.F. No. 24 (emphasis added).

More importantly, the Commission determined it lacked jurisdictional

authority to consider awarding Colella contractual benefits provided in the Act 111

Awards between the Borough and Local 839. F.F. Nos. 27, 29. Rather, such

matters must be resolved through Act 111 arbitration or litigation based on

contractual rights created by a CBA or arbitration award. F.F. No. 29. To that

end, the Commission found: “Colella, being a member of Local 839, does not

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have jurisdictional authority to compel the [Commission] to interpret or enforce

one or more of the Act 111 Arbitration Awards.” F.F. No. 31.

Colella filed a statutory appeal in which he essentially asserted the

Commission erred in failing to equate the Borough’s elimination of its fire

department with a furlough. Colella also asserted the Commission erred in failing

to recognize the Borough’s elimination of the fire department does not equate to a

voluntary quit. Further, Colella argued the Commission erred in failing to

recognize that it can direct an award of pay and benefits for a violation of civil

service rights.

In September 2012, the trial court entered an order denying Colella’s

appeal. In an opinion in support of its order, the trial court noted the nature of

Colella’s separation from employment and his entitlement to compensation and

benefits following his termination were decided pursuant to Act 111 arbitration.

The court further noted the Second Miller Award determined Colella voluntarily

resigned his fire fighter position. Tr. Ct., Slip Op., 12/12/12, at 7-8. Also, the

Second Miller Award determined Colella was not entitled to any payment other

than his accumulated unused vacation and personal time as of the date the Borough

closed its fire department. Id.

The trial court further determined the Borough and the City entered

into the Fire Services Agreement “to advance public safety concerns, save the

Borough money and … not for any purpose of evading civil service standards and

requirements.” Id. at 8. In concluding, the trial court observed that Local 839

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represented Colella at all times. Therefore, his rights under the applicable

arbitration awards and agreements were protected. Id. Thus, Colella could not be

heard “to demand a renegotiation of his Union’s agreements and arbitration

awards.” Id. Colella appeals.

II. Issues

Although Colella sets forth seven separate issues in his Statement of

the Questions Involved,3 he addresses those issues in the following four arguments

3 In his Statement of the Questions Involved, Colella Brief at 4, Colella asserts:

1. The lower court erred in failing to recognize its authority under the applicable civil service

laws to change the Borough’s designation for Colella’s separation from employment.

2. The lower court erred in failing to recognize the obligations imposed by the civil service

statutes, interpretive authority, ordinances, and regulations on local government employers, when

eliminating departments.

3. The lower court erred in failing to equate removal with furlough as required by civil service

statutes and interpretive authority.

4. The lower court erred in failing to recognize the Borough’s elimination of the fire department

does not equate to a voluntary quit by an employee ready, willing, and able to continue his

employment with the fire department.

5. The lower court erred in failing to recognize the moribund and ineffective status of the fire

fighters’ union in relation to the parties.

6. The lower court erred in failing to recognize it has the authority, when considering violations

of civil service rights, such as wrongful designation of the reason for separation of employment,

to direct an award of applicable pay and benefits owed by the employer.

7. The lower court erred in failing to recognize that Colella was at least entitled to the benefits of

a fire fighter with pension-eligible status, such as entitlement to payment for unused sick leave.

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presented in his brief: the trial court erred in failing to determine the Borough’s

elimination of its fire department constituted a removal under Section 1190 of the

Borough Code, which thus required the Borough to furlough Colella; the trial court

erred in focusing on labor law rather than civil service law; the trial court erred in

deciding that Colella voluntary quit; and, the trial court erred in finding the 2004

Zobrak Award inapplicable.

III. Standard of Appellate Review

We note Colella assigns error to the trial court’s reasoning and

conclusions and he discusses the issues he raises in that context. However, our

appellate review of a municipal civil service commission decision is limited to

whether the commission’s findings are supported by substantial evidence and

whether the commission erred or committed a violation of constitutional rights.

Lewis v. Civil Serv. Comm’n, City of Phila., 518 Pa. 170, 542 A.2d 519 (1988).

Further, we are required to review the evidence in the light most favorable to the

party that prevailed before the commission, giving that party the benefit of all

reasonable inferences. Id.

IV. Discussion

A. Argument

1. Section 1190 of the Borough Code

Colella contends the Borough’s closure and elimination of the fire

department constituted a removal under Section 1190 of the Borough Code, which

therefore entitled him to a Commission hearing under Section 1191 of the Borough

Code, 53 P.S. §46191 (relating to hearings on dismissals and reductions). He

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asserts the Legislature clearly intended that removal under Section 1190 covers a

situation where an employee is terminated or discharged. See Iorio v. Borough of

Carnegie, 487 A.2d 53 (Pa. Cmwlth. 1985) (any removal is appealable to the

commission). Section 1190, 53 P.S. §46190, provides in pertinent part (with

emphasis added):

If for reasons of economy or other reasons it shall be deemed necessary by any borough to reduce the number of paid employes of the police or fire force, then the borough shall furlough the person or persons, including probationers, last appointed to the respective force.

Colella points out the word shall by definition is mandatory and is generally

applied as such. Chanceford Aviation Props. LLP v. Chanceford Twp. Bd. of

Supervisors, 592 Pa. 100, 923 A.2d 1099 (2007). Colella argues the Borough took

his job out of existence by closing the fire department. Therefore, the Borough

removed him for economic reasons within the meaning of Section 1190 of the

Borough Code. As a result, the Commission erred in not requiring the Borough to

change the designation of his termination to furlough rather than voluntary quit.

See also Blystone v. Borough of Forest Hills, 349 A.2d 494 (Pa. Cmwlth. 1975)

(borough passed an ordinance abolishing the fire department and furloughing its

fire fighters).

Colella further asserts the Borough cannot evade triggering the civil

service appeal process by mislabeling his separation from employment as a

voluntary quit. A wrongful designation of voluntary quit would allow the Borough

to control the nature of action and deprive the Commission of jurisdiction.

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2. Labor Law

Colella next contends the trial court erred in focusing on labor law

rather than civil service law. By doing so, Colella argues, the court applied law

that is only marginally relevant and certainly not dispositive. To that end, Colella

asserts the arbitration awards have no effect on this litigation. He contends the

General Assembly enacted the civil service provisions of the Borough Code to

allow fire fighters and police to protect their interests. Therefore, Act 111

arbitration has no capacity or authority to determine civil service rights granted by

the General Assembly.

Colella further argues the Reopener arbitration regarding the closure

of the Borough’s fire department was essentially between the Borough and Local

839. He had no representative to advocate specifically for him. As a result, the

Second Miller Award determination that he voluntarily quit is inconsistent with the

facts, which show the Borough closed its fire department. Under the controlling

civil service statutes, the Borough’s action had the effect of a furlough.

3. Voluntary Quit

Colella also contends the trial court erred in determining he

voluntarily quit. He argues this is an important error to remedy because it carries

legal significance. For example, a voluntary quit would render Colella ineligible

for unemployment compensation where his job was eliminated by a decision of the

Borough. Colella further argues that when a borough’s fire department is

eliminated, the fire fighters are to be furloughed. Blystone.

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4. Zobrak Award

In addition, Colella contends the trial court erred in determining the

Dissen Award superseded the section of the Zobrak Award providing

compensation for laid off fire fighters. Thus, Colella asserts, the payment

provisions of the Zobrak Award remained in effect.

5. Request for Relief

In light of the foregoing, Colella requests this Court reverse the trial

court; remand with instructions to enter judgment for Colella; direct that Colella’s

separation from employment be changed from “voluntary quit” to furlough or

layoff; direct that under the conditions prevailing, Colella be paid $64,650 for his

years of service, health insurance and accumulated sick leave, consistent with the

Zobrak Award; and, direct the payment of Colella’s fees and costs.

6. Borough’s Response

a. Section 1190 of the Borough Code

In response, the Borough contends it followed the appropriate

procedure when it eliminated its fire department and entered into the Fire Services

Agreement. The Borough further asserts there is substantial evidence for the

Commission’s findings that the Borough acted in good faith, and not for any

purpose of evading civil service requirements, in closing its fire department. See

Forty Fort Borough v. Kozich, 669 A.2d 469 (Pa. Cmwlth. 1995) (a borough may

reduce its work force for economic reasons as long as it makes that decision in

good faith, not to circumvent civil service laws).

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The Borough further argues the Commission did not err in

determining Section 1190 of the Borough Code “does not address the elimination

of a fire department … or what benefits might be available to … fire fighters when

a municipal body eliminates the entire department.” F.F. No. 24 (emphasis added).

The Borough also points out that Colella is not seeking a reinstatement, but rather

an award of benefits under an Act 111 award.

b. Lack of Jurisdiction to Award Contractual Benefits

The Borough asserts what Colella really wants in this litigation is an

award of benefits under the Zobrak Award. The Act 111 process, and, in

particular, the Second Miller Award, determined the layoff compensation

provisions in Zobrak Award applied only to the loss of manning addressed in that

2004 award. A civil service proceeding does not provide a forum for a collateral

attack on the Act 111 interest arbitration process.

The Borough further adds that judicial review of Act 111 arbitration is

in the nature of narrow certiorari. City of Phila. v. Int’l Ass’n of Fire Fighters

(IAFF), Local 22, 606 Pa. 447, 999 A.2d 555 (2010). This review is limited to

issues regarding: (1) the jurisdiction of the arbitrator; (2) the regularity of the

proceedings; (3) whether the arbitrator exceeded his powers; and, (4) deprivation

of constitutional rights. Id.

Summarizing, the Borough argues, the determination of entitlement to

contractual benefits is a matter left to the Borough and Local 839 to decide by

agreement or, in the absence of agreement, by Act 111 arbitration.

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c. Voluntary Quit

The Borough again notes that the Commission made no finding that

Colella voluntarily quit his employment. Rather, it simply determined the Borough

provided evidence justifying its closure of its fire department. Forty Fort Borough.

However, the Borough asserts there is substantial evidence supporting

Borough’s Manager’s initial determination that Colella voluntarily quit by refusing

to accept the City’s offer of continued employment. See, e.g., Delaney v.

Unemployment Comp. Bd. of Review, 574 A.2d 1198 (Pa. Cmwlth. 1990) (an

employed claimant who refused an offer of continued employment with a

successor employer is deemed to have voluntarily quit and must establish

necessitous and compelling cause for leaving employment, such as a substantial

reduction in pay, to obtain statutory unemployment benefits).

B. Analysis

First, we note, the parties do not dispute that the Borough acted in

good faith when it decided to enter into the Fire Services Agreement. Rather,

Colella challenges the Commission’s determination that Section 1190 of the

Borough Code does not require the Borough to furlough him as a result of the

elimination and closure of the Borough’s fire department.

In view of the circumstances in this case, which involve a civil service

appeal from a Borough determination that Colella voluntarily quit based on an Act

111 arbitration award, we find our decision in Abel v. City of Pittsburgh, 890 A.2d

1 (Pa. Cmwlth. 2005), appeal denied, 589 Pa. 732, 909 A.2d 306 (2006), to be

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persuasive. We held in Abel that seniority and workforce reduction were proper

items of collective bargaining and that the CBA, not the civil service provisions of

the Second Class City Code,4 governed the City’s workforce reduction.

In Abel, the City of Pittsburgh entered into a CBA with certain

employees under Public Employe Relations Act,5 which governed, among other

terms and conditions of employment, the manner of workforce reduction. In 2003,

unable to meet payroll, the City notified approximately 700 employees of their

pending layoff. In determining which employees to lay off, the City applied the

layoff and seniority provisions of the CBA. The CBA required the City to lay off

employees by years of service in a particular job title and department, in reverse

order of seniority, within three separate seniority units, consisting of laborers,

drivers and crafts. The affected employees filed a civil service appeal claiming

their furloughs violated the civil service provisions of the Second Class City Code,

which protected them against furlough by their overall length of service, regardless

of title or classification.

However, the City’s civil service commission concluded the terms of

the CBA, not the statutory civil service provisions controlled. On appeal, the trial

court reversed on the ground the civil service provisions of the Second Class City

Code were intended to establish an exclusive system for the removal of City

employees. The trial court determined that the layoff provisions of the CBA that

4 Act of May 23, 1907, P.L. 206, as amended, 53 P.S. §§23431-23462.

5 Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101 – 1102.2301.

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conflicted with the layoff provisions in the civil service statutes were invalid and

thus enforceable.

On appeal, this Court reversed on the basis that the terms of the City

employees’ employment, including seniority and layoff, were governed by the

CBA, not the civil service statute. In so doing, this Court explained, the mere fact

that a particular subject matter may be covered by legislation does not remove it

from collective bargaining. In the absence of a direct prohibition, an issue must be

negotiated if it involves wages, hours and other terms and conditions of

employment determined by the collective bargaining process.

The rationale in Abel is also applicable here. Section 1 of Act 111,

which governs the parties’ CBAs and arbitration awards here, provides (with

emphasis added):

Policemen or firemen employed by a political subdivision of the Commonwealth or by the Commonwealth shall, through labor organizations or other representatives designated by fifty percent or more of such policemen or firemen, have the right to bargain collectively with their public employers concerning the terms and conditions of their employment, including compensation, hours, working conditions, retirement, pensions and other benefits, and shall have the right to an adjustment or settlement of their grievances or disputes in accordance with the terms of this act.

43 P.S. §217.1

Pursuant to the Reopener provision in the First Miller Award, the

Borough and Local 839 returned to interest arbitration to resolve outstanding

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“impact issues” regarding the closure of the Borough’s fire department. These

issues included the nature of Colella’s separation after he declined to accept

employment with the City’s fire department, and his entitlement to any

compensation or benefits due to his separation from employment. Ultimately,

Arbitrator Miller determined Colella voluntarily resigned by not accepting

employment with the City, and that the layoff provisions in the Zobrak Award only

applied to the loss of manning particular to that 2004 award. As a result, Arbitrator

Miller determined the Zobrak Award expired. See Second Miller Award at ¶1;

R.R. at 154a-155a.

As discussed in Abel, seniority, compensation and other benefits,

including compensation and benefits for workforce reduction, fall squarely within

the terms and conditions of employment subject to collective bargaining. In the

Second Miller Award, Arbitrator Miller observed (with emphasis added):

It was stipulated by the parties that the exercise of jurisdiction by this panel in accordance with Paragraph 8 of the 2009 Award [Reopener provision] was procedurally and substantively appropriate. In addition, there were no procedural or substantive objections to this panel’s exercise of jurisdiction over the issues set forth in this Award. Moreover, with respect to each item set forth below, it is specifically acknowledged that a majority of the panel was in agreement with each one of the issues.

R.R. at 153a-54a.

In accord with Abel, the Second Miller Award precluded the

Commission from re-determining the nature of Colella’s separation from

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employment and his entitlement to benefits. By submitting these issues to Act 111

arbitration, the Borough and Local 839, which represented Colella’s interests,

agreed to be bound by Arbitrator Miller’s determinations.

In Abel, we recognized the civil service provisions of the Second

Class City Code did not explicitly and definitively prohibit the City from

collectively bargaining the issue of seniority and layoffs with its unionized

employees. Although those civil service provisions established a procedure for

layoffs, they did not prohibit the City from making any other agreement as to

layoffs and seniority with those employees represented by a union. Otherwise,

civil service statutes would not allow unions to represent any civil service

employees.

Here, nothing in Sections 1190 or 1191 of the Borough Code

governing removals and reductions in a borough’s police or fire force explicitly or

definitively prohibited the Borough and Local 839 from collectively bargaining

over employment and compensation issues arising out of the Fire Services

Agreement. As such, we hold that the nature of Colella’s separation from

employment, and his contractual entitlement to compensation were issues

governed exclusively by the Second Miller Award. Abel.

V. Conclusion

In sum, we discern no error in the Commission’s determination that

the Borough acted in good faith in closing its fire department for economic and

other reasons. Further, given Colella’s union status, we hold the Second Miller

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Award determination that Colella voluntarily quit precluded the Commission from

determining that the Borough furloughed Colella for lack of work. Abel.

We also discern no error in the Commission’s determination that it

lacked jurisdictional authority to consider any possible award of contractual

benefits to which Colella may be entitled under the parties’ Act 111 interest

arbitration awards. Section 1190 of the Borough Code does not authorize the

Commission to review or interpret Act 111 arbitration awards.6 See City of Phila.

v. IAFF Local 22 (decision of Act 111 interest arbitration panel is final and

binding); Abel.

Accordingly, we affirm the trial court’s dismissal of Colella’s

statutory appeal.

ROBERT SIMPSON, Judge

6 Likewise, the trial court, in a statutory appeal from the Commission’s decision, lacks

jurisdiction to consider Colella’s challenges to the Second Miller Award. Rather, as the

Commission noted, Colella could bring litigation against the Borough based on his contractual

rights established in the arbitration awards. See Comm’n Dec., F.F. No. 29.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard Colella, : Appellant : : v. : No. 2039 C.D. 2012 : Borough of Wilkinsburg and : Civil Service Commission of Borough : of Wilkinsburg :

O R D E R AND NOW, this 15

th day of July, 2013, for the reasons stated in the

foregoing opinion, the order of the Court of Common Pleas of Allegheny County is

AFFIRMED.

ROBERT SIMPSON, Judge