IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh, Pennsylvania, :

 Appellant :

 :

 v. : No. 535 C.D. 2023

: Submitted: February 6, 2024

Fraternal Order of Police, Fort Pitt : 

Lodge No. 1 (Aaron Fetty) :

 

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WALLACE FILED: March 6, 2024

Consistent with the Policemen and Firemen Collective Bargaining Act, Act of 

June 24, 1968, P.L. 237, No. 111, 43 P.S. §§ 217.1-217.12, commonly known as Act 

111 (Act 111), the Fraternal Order of Police, Fort Pitt Lodge No. 1 (FOP), may file 

a grievance challenging disciplinary actions taken against a City of Pittsburgh (City) 

Bureau of Police (Bureau) officer. An arbitration panel then hears the grievance and 

issues a decision, after which “[n]o appeal therefrom shall be allowed to any court.” 

Section 7(a) of Act 111, 43 P.S. § 217.7(a). Pennsylvania’s Supreme Court permits

a limited exception to Act 111’s prohibition of appeals, known as “narrow certiorari” 

review. Pa. State Police v. Pa. State Troopers Ass’n (Betancourt), 656 A.2d 83, 89

(Pa. 1995). Under narrow certiorari, this Court may not reverse an arbitration panel
2

because we disagree with its findings of fact or believe it misinterpreted the parties’ 

collective bargaining agreement. Stated differently, if the panel’s decision depends 

on factfinding or interpreting the collective bargaining agreement, “reviewing courts

apply the extreme standard of deference applicable to Act 111 awards; . . . they are 

bound by the arbitrator’s determination of these matters even though [they] 

may find them to be incorrect.” City of Pittsburgh v. Fraternal Ord. of Police Fort 

Pitt Lodge No. 1, 304 A.3d 816, 823 n.4 (Pa. Cmwlth. 2023) (citing Pa. State Police 

v. Pa. State Troopers Ass’n, 840 A.2d 1059 (Pa. Cmwlth. 2004)) (emphasis added).

The matter on appeal involves Bureau police officer Aaron Fetty (Fetty). The 

City terminated Fetty’s employment after the Court of Common Pleas of Allegheny 

County (Common Pleas) issued a final sexual violence protective order (protective 

order), dated March 23, 2022, finding he “[a]t a minimum, . . . committed the act of 

sexual assault” against a fellow officer (Coworker) on June 19, 2021. Reproduced 

Record (R.R.) at 341a. The FOP filed a grievance, which an arbitration panel (Panel)

granted. The Panel directed the City to reinstate Fetty, concluding the City failed to 

bring its disciplinary action within 120 days of the infraction, as required under the 

Working Agreement (Agreement) between the City and the FOP. The City appealed 

to Common Pleas,

1 which affirmed by order dated April 20, 2023. The City now 

appeals to this Court. Mindful of our narrow certiorari review, we affirm. 

I. Background

The Panel did not make findings of fact in support of its decision. Therefore, 

we glean the facts underlying this appeal from the record. On June 19, 2021, a group 

of Bureau police officers held a cookout at the end of their shift, at which alcohol 

was served. Several of the officers, including Fetty and Coworker, then drove to a 

1 The Common Pleas judge who heard the City’s appeal was not the same judge who issued the

final protective order. 
3

bar. Coworker became intoxicated while at the bar, and Fetty drove Coworker home.

On June 28, 2021, the City’s Office of Municipal Investigations (OMI) received an 

anonymous complaint, alleging Fetty committed indecent assault against Coworker 

after driving her home on June 19, 2021. OMI launched an investigation, as did the 

Allegheny County Police Department, but Fetty was not charged with a crime. The 

City issued Disciplinary Action Report 21-088 against Fetty, dated September 22, 

2021. Fetty received a three-day suspension, five-year “Last Chance Agreement for 

sexual harassment,” and counseling. R.R. at 351a. The City transferred Fetty away 

from Coworker, to a different “zone” within the Bureau.

On December 30, 2021, however, Coworker obtained a temporary protective 

order against Fetty and sent a mass e-mail to the Bureau, among others. Coworker’s 

e-mail detailed her limited recollections and attempts to learn what happened on June 

19, 2021; alleged Fetty “sexually assaulted [her] . . . while [she] was drifting in and 

out of consciousness”; and criticized the City’s leniency toward Fetty. R.R. at 298a. 

Coworker obtained a final protective order on March 23, 2022, after a hearing before 

Common Pleas. As explained above, Common Pleas found Fetty “[a]t a minimum,

. . . committed the act of sexual assault.” Id. at 341a. The Allegheny County Police 

Department reopened its investigation but, once again, Fetty was not charged with a 

crime. The City issued Disciplinary Action Report 22-059 against Fetty, dated July 

12, 2022. Acting Police Chief Thomas Stangrecki (Chief Stangrecki) recommended 

Fetty be suspended, but Public Safety Director Lee Schmidt (Schmidt) amended the

recommendation to a five-day suspension pending termination. The FOP appealed, 

and Schmidt sustained his initial decision by letter dated September 21, 2022.

The FOP filed a grievance, and the matter proceeded to an arbitration hearing 

before the Panel on November 17, 2022. The City presented the testimony of Chief 
4

Stangrecki, Schmidt, and OMI Manager Erin Bruni (Bruni). The FOP presented the 

testimony of Nicole Nino, Esquire, Detective Jeremy Hoerter, FOP President Robert 

Swartzwelder, and Fetty. Critically, the parties’ arguments at the hearing addressed 

Section 19(II)(F) of the Agreement, which generally requires the City to bring a 

disciplinary action within 120 days (120-Day Rule):

Absent unusual circumstances, disciplinary action must ordinarily 

be taken against an officer within one hundred twenty (120) 

calendar days of an infraction, or within one hundred twenty (120) 

calendar days after the City should reasonably have known about 

the infraction. If the City is claiming unusual circumstances which 

necessitate extending the time period beyond one hundred and twenty 

days (120) the FOP shall be notified in writing as soon as practical and 

not later than one hundred (100) days after the City knew or should 

have known of the infraction. The notice to the FOP shall set forth the 

City’s unusual circumstances, in summary fashion, such as instances 

involving ongoing criminal investigation, unavailability of 

participants or witnesses due to military deployment, incapacity, or 

other circumstances. The FOP may request an update regarding the 

unusual circumstances every thirty (30) calendar days of the 

continuation of unusual circumstances. The City shall respond to the 

FOP’s request for an update within seven (7) calendar days. In the 

absence of unusual circumstances, the failure to abide by the one 

hundred twenty (120) day deadline shall preclude the issuance of 

discipline. The preceding language shall not apply in situations 

where OMI is conducting an ongoing investigation. In such 

instance, the City shall issue the [disciplinary action report] within the 

later of 120 calendar days referenced above or twenty-five (25) 

calendar days from the issuance of the OMI report. 

R.R. at 232a-33a (emphasis added). According to the FOP, the 120-Day Rule barred

the City from disciplining Fetty a second time under Disciplinary Action Report 22-

059, because the City knew of Fetty’s infraction when OMI received the anonymous 

complaint on June 28, 2021, or when Coworker obtained her temporary protective 

order and sent an e-mail to the Bureau on December 30, 2021. Id. at 5a-6a; 134a35a. 
5

The Panel issued a decision dated November 28, 2022, granting the grievance,

concluding the 120-Day Rule prohibited Fetty’s termination, and directing the City 

to reinstate Fetty with lost wages, benefits, and seniority. The Panel found the City 

learned of the allegation against Fetty when OMI received the anonymous complaint

on June 28, 2021, resulting in Disciplinary Action Report 21-088. R.R. at 356a. It

found Disciplinary Action Report 22-059, which followed the March 23, 2022 final 

protective order, involved the same allegation and rule violations as before. Id. at 

356a-57a. The Panel rejected the claim that the final protective order “was based on 

some new information the City lacked” in the initial disciplinary action. Id. at 357a. 

Further, it rejected the claim “that re-fitting the same facts into what are patently the 

same rule violations . . . allows the City to avoid the 120-[D]ay [Rule].”

2

Id.

The City appealed to Common Pleas, arguing the Panel exceeded its powers

by reforming the Agreement. The City argued it did not learn the severity of Fetty’s 

misconduct until December 30, 2021, after which OMI began a second investigation. 

When Common Pleas issued the final protective order, the Allegheny County Police 

Department reopened its investigation, and the City sent the FOP a letter informing 

it of the unusual circumstances.3 Therefore, the City contended it disciplined Fetty 

2 One member of the Panel, Wendy Kobee, Esquire (Kobee), dissented. In relevant part, Kobee 

described the two sets of investigations and disciplinary actions as “materially different.” R.R. at 

358a. She argued the first investigation and disciplinary action involved an allegation of indecent 

assault, while the second involved an allegation of sexual assault based on different evidence. Id. 

Kobee contended the March 23, 2022 protective order was the first time the City reasonably knew 

Fetty sexually assaulted Coworker. Id.

3 By letter dated July 1, 2022, the City informed the FOP of the March 23, 2022 final protective 

order and indicated unusual circumstances required an exception to the 120-Day Rule. The City 

defined the unusual circumstances as “the recent conclusion of the on-going criminal investigation 

(June 14th), some ambiguous information about that from the Allegheny County Police 

[Department] and the [District Attorney’s O]ffice which required clarification (June 24th)[,] and 

our staff availability.” R.R. at 342a.
6

in compliance with the Agreement, and the Panel disregarded the Agreement’s terms

by concluding otherwise. The City further challenged the Panel’s decision on public 

policy grounds. The City acknowledged the decision in Pennsylvania State Police 

v. Pennsylvania State Troopers Association (Smith), 741 A.2d 1248, 1252-53 (Pa. 

1999), where the Pennsylvania Supreme Court rejected the argument that an Act 111 

arbitrator exceeds his or her powers by reaching a decision contrary to public policy. 

The City suggested Smith was wrongly decided and should be revisited. 

By order dated April 20, 2023, Common Pleas affirmed the Panel’s decision. 

The City filed a notice of appeal to this Court, and Common Pleas issued an opinion 

in response to the City’s concise statement of errors complained of on appeal. In its 

opinion, Common Pleas characterized the City’s appeal as a challenge to the Panel’s 

interpretation of the Agreement. Common Pleas Op., 7/17/2023, at 4. It emphasized 

the Panel was entitled to “extreme deference” when interpreting the Agreement. Id.

at 3-4 (citing Pa. State Police, 840 A.2d at 1062). Thus, Common Pleas reasoned, 

it was bound by the Panel’s interpretation of the Agreement even if it believed that 

interpretation was incorrect. Id. Common Pleas briefly addressed the City’s public 

policy concerns, explaining our Supreme Court rejected public policy as a basis for 

disturbing an Act 111 arbitration award in Smith. Id. at 4. 

In this Court, the City presents the same issues it raised before Common Pleas. 

The City contends the Panel reformed the Agreement by failing to apply the unusual 

circumstances exception to the 120-Day Rule, and it questions our Supreme Court’s 

holding in Smith, regarding public policy challenges to Act 111 arbitration decisions. 

II. Discussion

In its first issue, the City contends the Panel exceeded its powers by reforming 

the Agreement. City’s Br. at 16-27. Under narrow certiorari review, this Court may 
7

consider questions regarding “(1) the jurisdiction of the arbitrator; (2) the regularity 

of the proceeding; (3) an excess of the arbitrator’s powers; and (4) the deprivation 

of constitutional rights.” City of Phila. v. Fraternal Ord. of Police, Lodge No. 5, 

181 A.3d 485, 489 (Pa. Cmwlth. 2018) (quoting McCandless v. McCandless Police 

Officers Ass’n, 952 A.2d 1193, 1196 n.6 (Pa. Cmwlth. 2008)) (emphasis omitted). 

If resolving an issue on appeal “turns on a question of law or application of law to 

undisputed facts” our review is plenary and non-deferential. Id. (emphasis omitted). 

If, however, an issue “depends on fact-finding or upon interpretation of the collective 

bargaining agreement, [this C]ourt is bound by the arbitrator’s determination even if 

the arbitrator is wrong.” Id.; see also City of Pittsburgh, 304 A.3d at 823 n.4.

Generally, an Act 111 arbitrator does not exceed his or her powers if the acts 

the arbitrator requires the employer to perform “are legal; are acts that the employer 

could do voluntarily; and relate to the terms and conditions of employment.” City 

of Pittsburgh v. Fraternal Ord. of Police Fort Pitt Lodge No. 1, 111 A.3d 794, 800 

(Pa. Cmwlth. 2015) (en banc) (citing Pa. State Police v. Pa. State Troopers’ Ass’n

(Keyes), 54 A.3d 129, 133 (Pa. Cmwlth. 2012)). The arbitrator may not add terms 

to, or change the language in, the parties’ collective bargaining agreement.4 City of 

Pittsburgh, 304 A.3d at 824 (citing Borough of Montoursville v. Montoursville 

Police Bargaining Unit, 958 A.2d 1084 (Pa. Cmwlth. 2008)). Although an arbitrator 

may not “equitably reform” an agreement, our Supreme Court has described the task 

of distinguishing between reformation and interpretation as unmanageable “[a]bsent 

an indisputably overt instance of reformation.” City of Pittsburgh v. Fraternal Ord. 

of Police, Fort Pitt Lodge No. 1, 224 A.3d 702, 714 (Pa. 2020) (citing Smith, 741 

A.2d at 1252-53).

4 We note the Agreement in this case states an arbitrator “shall not have the right to add to, subtract 

from, modify, or disregard any of the terms or provisions of the Agreement.” R.R. at 160a. 
8

Here, the City contends the Panel reformed the Agreement by failing to apply 

the unusual circumstances exception to the 120-Day Rule. City’s Br. at 26-27. The 

City argues OMI began a second investigation after Coworker obtained a temporary 

protective order and e-mailed the Bureau on December 30, 2021, and the Allegheny 

County Police Department reopened its previous investigation after Common Pleas 

issued a final protective order on March 23, 2022, both of which should have tolled 

the 120-Day Rule if the Panel applied the exception as required. Id. at 22-26. The 

City contends it did not learn of the specific allegation that Fetty sexually assaulted 

Coworker until she obtained the temporary protective order and e-mailed the Bureau. 

Id. at 21-24. The City distinguishes the anonymous complaint it received on June 

28, 2021, which alleged indecent assault, from Coworker’s sexual assault allegation 

on December 30, 2021. Id. at 18-25. 

We recently addressed a similar challenge in City of Philadelphia v. Fraternal 

Order of Police, Lodge No. 5, ___ A.3d ___ (Pa. Cmwlth., No. 39 C.D. 2023, filed 

January 8, 2024) (en banc). That appeal involved a Philadelphia police officer who

sent “highly inappropriate messages to two female officers under his supervision . . .

including texts with sexually suggestive comments, innuendos, and sexual content, 

culminating in a graphic, disturbing video depicting bestiality between a woman and 

a dog.” Id., ___ A.3d at ___, slip op. at 2. The officer received a 30-day suspension 

with intent to dismiss and filed a grievance. Id., ___ A.3d at ___, slip op. at 3. An 

arbitrator converted the officer’s dismissal into a 50-day suspension, concluding the 

officer did not engage in sexual harassment. Id. This Court rejected the City of 

Philadelphia’s appeal, in which it argued the arbitrator reformed the collective 

bargaining agreement. Id., ___ A.3d at ___, slip op. at 4. We cited the legal 

principles summarized above, holding the arbitrator, at most, “erred as a matter of 
9

law, and ‘[a] mere error of law is insufficient to support a court’s decision to reverse 

an Act 111 arbitrator’s award.’” Id., ___ A.3d at ___, slip op. at 5-6 (quoting 

Borough of State Coll. v. Borough of State Coll. Police Ass’n, 303 A.3d 248, 255 

(Pa. Cmwlth. 2023)). 

Likewise, the City in this case fails to identify any “indisputably overt instance 

of reformation” that would allow this Court to disturb the Panel’s decision. See City 

of Pittsburgh, 224 A.3d at 714. Our review reveals the Panel did not ignore or refuse 

to apply the 120-Day Rule or its unusual circumstances exception. Instead, the Panel 

found the City became aware of the rule violations and allegation against Fetty when 

OMI received the anonymous complaint on June 28, 2021. The Panel concluded the 

City needed to bring any disciplinary action within 120 days of that date and rejected 

the City’s argument that Coworker’s March 23, 2022 final protective order was 

based on new information. Thus, the City’s disagreement is not with the Panel’s act 

of adding to, or subtracting from, the terms of the Agreement, but with its findings 

of fact and interpretation of the Agreement based on those findings. For this reason, 

our narrow certiorari review prevents us from granting the City relief.

5

 See City of 

Phila., 181 A.3d at 489; City of Pittsburgh, 304 A.3d at 823 n.4.

The City argues in its second issue that the Panel’s decision was contrary to 

public policy. City’s Br. at 27-33. In Smith, our Supreme Court considered the cases

of two state troopers who were dismissed for misconduct but later reinstated by an 

arbitrator. One of the troopers “jamm[ed] his loaded, police-issued weapon into [his 

ex-girlfriend’s] mouth and threaten[ed] to kill her,” and the other attempted to leave 

5 We note the record indicates no second OMI investigation occurred. When asked, Bruni agreed 

she “never conducted an investigation” into the allegations in Coworker’s December 31, 2021 email. R.R. at 33a. Bruni testified the City requested a second investigation, and she attempted 

unsuccessfully to schedule a meeting with Coworker “so I could sit down with her to try to clarify 

what she wanted OMI to specifically investigate.” Id. at 32a-33a. 
10

a department store “with $27.58 worth of merchandise for which he had not paid.” 

Smith, 741 A.2d at 1250. The Pennsylvania State Police challenged the 

reinstatements, contending an arbitrator exceeds his or her powers “not only by 

ordering an illegal act or an act which does not relate to the terms and conditions of 

employment, but also by issuing an order which contravenes ‘public policy.’” Id. at 

1252. The Court found no merit to this argument, explaining as follows: 

Broadening the narrow certiorari scope of review to include a provision 

which would allow the courts to interfere with an arbitrator’s award 

whenever that award could be deemed to be violative of “public 

policy”—however that nebulous concept may be defined by a particular 

appellate court—would greatly expand the scope of review in these 

matters. If we were to adopt the State Police’s recommendation to 

include this ill-defined term within the narrow certiorari scope of 

review, we would markedly increase the judiciary’s role in Act 111 

arbitration awards. This would undercut the legislature’s intent of 

preventing protracted litigation in this arena.

We emphasize that these matters are not, as the State Police 

implies, about whether this court finds the reinstatement of these 

troopers to be repugnant. Rather, they concern the application of 

existing legislation. If we were to broaden the narrow certiorari scope 

of review to the extent propounded by the State Police, we would not 

be interpreting Act 111 but rather would be rewriting it. Clearly, such 

a legislative function is denied to the judiciary.

Id. at 1252-53 (citation and footnotes omitted).

The City acknowledges our Supreme Court’s holding in Smith but argues it is 

“not on sound ground” and should be revisited. City’s Br. at 28-33. Quoting Justice 

Newman’s dissent in Smith, the City argues “the public policy of binding arbitration 

must cede to the public policy of insuring that the employees who are bound to carry 

out [law enforcement and safety] duties are of the highest integrity and character.” 

Id. at 27-28 (quoting Smith, 741 A.2d at 1255 (Newman, J., dissenting)). The City 

cites cases under the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, 
11

as amended, 43 P.S. §§ 1101.101-1101.2301, finding public policy violations based 

on sexual harassment, and argues there is no reason to distinguish arbitration under 

that statute and Act 111. City’s Br. at 31-33. In addition, the City emphasizes it had 

the duty to protect Coworker and could not simply ignore Fetty’s conduct. Id. at 27-

31.

Supreme Court decisions are binding on this Court, and we have no authority

to disregard or overrule Smith. See Zauflik v. Pennsburg Sch. Dist., 72 A.3d 773, 

783 (Pa. Cmwlth. 2013) (quoting Commonwealth v. Tilghman, 673 A.2d 898, 903 

(Pa. 1996)). We must, therefore, reject the City’s public policy argument. The City 

retains the ability to petition our Supreme Court for review, present its public policy 

concerns, and ask the Court to reconsider Smith. 

III. Conclusion

The City’s appeal challenges the Panel’s findings of fact and interpretation of 

the Agreement, but this Court’s narrow certiorari review prevents it from disturbing 

the Panel’s decision for those reasons. Further, although the City’s appeal questions

our Supreme Court’s Smith decision, that holding is binding on this Court. We 

affirm Common Pleas’ April 20, 2023 order. 

______________________________

STACY WALLACE, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Pittsburgh, Pennsylvania, :

 Appellant :

 :

 v. : No. 535 C.D. 2023

: 

Fraternal Order of Police, Fort Pitt : 

Lodge No. 1 (Aaron Fetty) :

O R D E R 

 AND NOW, this 6th day of March 2024, the order of the Court of Common 

Pleas of Allegheny County, dated April 20, 2023, is AFFIRMED.

______________________________

STACY WALLACE, Judge