IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Wilkes-Barre :

 :

v. : No. 1575 C.D. 2017

 : Argued: September 14, 2018

Wilkes-Barre City Fire Fighters :

Local Union No. 104, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: October 11, 2018

The Wilkes-Barre City Fire Fighters Local Union No. 104 (Union) and the 

City of Wilkes-Barre (City) dispute what forms of compensation are included in the 

term “salary” for purposes of calculating pension contributions. The Union appeals 

the Luzerne County Court of Common Pleas’ (common pleas) Order vacating the 

Arbitrator’s Award (Award), which required the City to include disputed forms of 

compensation in pension calculations. At issue is whether the Award was an 

impermissible modification to the pension plan, because no actuarial study was 

performed first. This issue is almost identical to the one presented before this Court 

recently in City of Wilkes-Barre v. Wilkes-Barre Police Benevolent Association

(Wilkes-Barre PBA) (Pa. Cmwlth., No. 1145 C.D. 2017, filed June 4, 2018) petition 
2

for allowance of appeal filed, (Pa., No. 440 MAL 2018, filed July 6, 2018).1 Given 

the Arbitrator’s findings, and the narrow certiorari scope of review, consistent with 

Wilkes-Barre PBA, we reverse. 

I. Factual Background

The Union and the City are governed by Act 111,2commonly referred to as 

the Policemen and Firemen Collective Bargaining Act, and bound under a Collective 

Bargaining Agreement (CBA) first executed in 2004. The CBA was extended until 

December 31, 2016, through an Act 111 Interest Arbitration Award and a 2012 

settlement agreement between the parties (Settlement Agreement). These 

documents, along with the relevant city ordinances, collectively govern the present 

terms of the CBA. Article 21 of the CBA relating to the pension plan (Plan) provides 

that a pension is “computed on the basis of the Fire Fighter’s final year average 

salary.” (Reproduced Record (R.R.) at 35a.) As defined under the governing 

ordinances of the Plan, contributions are based on monthly compensation. WilkesBarre, Pa., Code of Ordinances, No. 25-76, § 2-202, 7-8-76 (2018).3

 “Monthly 

compensation” is defined as “basic monthly compensation, plus longevity 

payments, acting officer’s pay, EMT bonuses, overtime pay, night shift 

differential, educational incentive payments, holiday pay and annual buy back 

 

1 Wilkes-Barre PBA, an unpublished opinion, is cited for its persuasive value in accordance 

with Section 414(a) of the Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code 

§ 69.414(a).

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

3 The Wilkes-Barre City Ordinances are not provided in the record, but are available online. 

Chapter 2, Article III, Division 4 contains the provisions relating to the fire fighters’ pension fund. 

“Monthly compensation” is defined in Section 2-202 and participant contribution requirements are 

set forth in Section 2-205. The relevant Article and Division are available here: 

https://library.municode.com/pa/wilkesbarre/codes/code_of_ordinances?nodeId=PTIICOOR_CH

2AD_ARTIIIEMOFBE_DIV4FIPEFU (last accessed Oct. 10, 2018).
3

of sick leave,” and salary is noted as “includ[ing] a base monthly salary.” (Id. §§ 2-

202, 2-205 (emphasis added).) With the exception of base pay and longevity, the

forms of compensation included in this definition are collectively the disputed forms 

of compensation in the present case. 

The Settlement Agreement in 2012 not only extended but also added new 

language to the CBA, particularly Article 21 relating to pensions. The additional 

language in the Settlement Agreement relevant to this dispute states that “[a]ll fire 

fighters hired after January 1, 2013 shall be entitled to pension benefits not in excess 

of [T]he Third Class City Code.

[4]

” (R.R. at 62a (emphasis added).) The Third 

Class City Code defines “salary” as “the fixed amount of compensation paid at 

regular, periodic intervals by the city to the member . . . .” (R.R. at 307a; Section 

14319 of the Third Class City Code formerly 53 P.S. § 39328.5) The governing 

ordinances of the Plan were not amended to include this specific definition provided 

under The Third Class City Code. Three Auditor General Reports, collectively 

auditing from January 2007 to December 2013, state that “salary,” as defined in the 

governing ordinances, has been inconsistent with The Third Class City Code 

throughout that time. (R.R. at 294a, 307a, 324a.) Each of these reports notes the 

same cause for the lack of compliance, namely that “pension benefits are a 

mandatory subject of collective bargaining,” which the City has been unsuccessful 

in bargaining to amend. (R.R. at 296a, 311a, 328a.) The reports acknowledge that 

because of this lack of amendment, the City has “been ordered by the Pennsylvania 

 

4 Act of June 23, 1931, P.L. 932, as amended, formerly 53 P.S. §§ 35101-39701. This 

version of The Third Class City Code was repealed by Section 2(2) of the Act of November 24, 

2015, P.L. 242, No. 67, effective January 25, 2016. The Third Class City Code is now codified at 

11 Pa. C.S. §§ 10101-14702. The former code is cited here, as that was the one in effect at the 

time of the proceedings. 

5 Under the updated code, this definition is currently codified at 11 Pa. C.S. § 14319.
4

Labor Relations Board to have the benefits continue as they are currently prescribed 

in the City’s governing ordinances.” (R.R. at 296a, 311a, 328a.)

It is undisputed that following the Settlement Agreement, pension 

contributions from fire fighters hired after January 1, 2013, did not include the 

disputed compensation but were measured by base salary and longevity alone. In 

contrast, contributions of those fire fighters hired prior to that date were calculated 

with the inclusion of the disputed compensation. Captain Michael Bilski grieved the 

matter in December 2015. 

The arbitration hearing concerning the grievance was held on October 20, 

2016. The Arbitrator heard testimony from Captain Bilski, who was the Union 

president, and Nicole Ference, the former payroll benefits coordinator and current 

human resources director for the City.6 Captain Bilski testified regarding 

negotiations of the Settlement Agreement, in particular the City’s concern of 

achieving compliance with The Third Class City Code as noted in the Auditor 

General Reports. (R.R. at 338a; Arbitrator Decision at 4.) According to Captain 

Bilski, the City had represented its only concern in that respect was to cap pensions 

at 50% of final year salary for fire fighters hired after January 1, 2013. Captain 

Bilski elaborated that prior to the Settlement Agreement, there was a 1.25% increase 

in pension for each year a fire fighter worked after age 50. This meant that pensions 

could reach up to the maximum of 70% of the final year average salary. Given this, 

Captain Bilski testified, the new language added under the Settlement Agreement 

intended to eliminate those pension increases for new hires, but not to alter the 

manner in which contributions were calculated. Captain Bilski further testified that 

the City gave assurances, upon which he relied, that the proposed additional 

 

6 The reproduced record does not contain a transcript of the arbitration proceeding and is 

only summarized briefly in the Arbitrator’s Decision.
5

language would not change the manner in which pension contributions were 

calculated.

Ms. Ference, on behalf of the City, testified that after the execution of the 

Settlement Agreement, “she was instructed to limit the 5% member contributions 

based on base salary and longevity alone.” (Arbitrator Decision at 5.) During Ms. 

Ference’s testimony, the Auditor General Reports were introduced, along with other 

exhibits illustrating how pension contributions were calculated before and after the 

Settlement Agreement became effective. The Arbitrator noted the content of the 

Auditor General Reports sponsored by Ms. Ference’s testimony, specifically that the 

Plan’s non-compliance with The Third Class City Code resulted from the City’s 

inability to successfully bargain new terms. 

In the time between the hearing and the final decision in this matter, the 

arbitration decision in Wilkes-Barre PBA was issued, resolving a separate dispute 

with the City about nearly identical disputed language in pension provisions for the 

police.7 Relying upon the arbitrator’s reasoning in Wilkes-Barre PBA and the 

testimony provided by Captain Bilski, the Arbitrator in this case issued his Award 

on February 16, 2017, ordering the City to include the disputed forms of 

compensation in its pension contribution calculations. The Arbitrator acknowledged 

that while The Third Class City Code definition of salary could be limited to only

base salary and longevity, its broad language allowed it to include income beyond 

that if the parties so agreed by agreement or through past practice. Because of this 

 

7

In Wilkes-Barre PBA, an arbitration award amended the collective bargaining agreement 

to specify that officers hired after the award would be “entitled to pension benefits not in excess 

of [T]he Third Class City Code.” Wilkes-Barre PBA, slip op. at 4 (quotation omitted) (alteration 

in original). Given the nearly identical language at issue in both cases, the Arbitrator in this dispute 

provided the parties an opportunity to comment on the arbitration award in Wilkes-Barre PBA

before the Decision was rendered.
6

ambiguous statutory language, the Arbitrator sought to determine the past practice 

of the parties for calculating contributions under the CBA to conclude if the City had 

altered that practice following the Settlement Agreement. Despite a parol evidence 

objection8raised by the City, the Arbitrator gave significant weight to Captain 

Bilski’s testimony about Settlement Agreement negotiations, finding that the City’s 

past practice included the disputed forms of compensation in pension calculations. 

Based upon Captain Bilski’s and Ms. Ference’s testimony regarding how 

contributions were calculated prior to the Settlement Agreement, the Arbitrator 

found both parties understood pension contributions to include the disputed forms 

of compensation under both the old and new pension plans. Although the City 

argued that the past practice was to exclude the disputed forms of compensation for 

employees hired after January 1, 2013, the Arbitrator disagreed, noting that this 

practice was perceived as a departure from the norm, thus prompting the grievance 

in the first place. The Arbitrator concluded that the parties did not intend to alter the 

manner of pension contribution calculation through the Settlement Agreement, and 

thus the City violated the CBA when it began excluding the disputed forms of 

compensation. 

The City petitioned common pleas to vacate and stay the Award. 

(Supplemental Reproduced Record (S.R.R.) at 2b.) Upon review, common pleas 

first noted the narrow certiorari scope of review, which limited its inquiry. 

(Common Pleas Opinion (Op.) at 2.) Based upon this, common pleas characterized 

the issue before it as whether the Award ordering the inclusion of the disputed forms 

 

8 The City asserted during arbitration that the unambiguous disputed language precluded 

consideration of evidence about the negotiations. The Arbitrator rejected this argument, finding 

that the language “raise[d] issues of different interpretations” that the use of parol evidence could 

resolve. (Arbitrator Decision at 15.)
7

of compensation in pension contributions exceeded the Arbitrator’s authority. 

Finding the issue to be analogous to the issues presented in Shippensburg Police 

Association v. Borough of Shippensburg, 968 A.2d 246 (Pa. Cmwlth. 2009), and 

Wilkes-Barre PBA, which was pending appeal before this Court at the time, common 

pleas vacated the Award. Specifically, common pleas found that the Award 

exceeded the Arbitrator’s authority by ordering a modification of the Plan without 

an Act 2059cost study.10

II. Issues

On appeal,

11 the Union raises two main issues:

12

 (1) whether common pleas 

correctly concluded the Award was a pension modification; and (2) whether 

common pleas failed to adhere to the narrow certiorari scope of review in making 

its determination. Essentially, the Union challenges whether, under narrow 

certiorari review, common pleas correctly concluded that the Arbitrator exceeded 

his authority and modified the Plan by ordering inclusion of the disputed 

compensation. Citing to a long history of Pennsylvania case law supporting the 

concept of limited judicial interference under narrow certiorari, the Union stresses 

the deference provided to an arbitrator’s findings upon review and the restricted 

 

9 Act of December 18, 1984, P.L. 1005, as amended, 52 P.S. §§ 895.101-895.803.

10 Section 305(a) of Act 205 requires a cost estimate “[p]rior to the adoption of any benefit 

plan modification by the governing body of the municipality[.]” 53 P.S. § 895.305(a).

11 Narrow certiorari review is “a plenary, non-deferential standard where the resolution of 

the issues turns on a question of law or application of law to undisputed facts,” but “where the 

question depends on fact-finding . . . the court is bound by the arbitrator’s determination even if 

the arbitrator is wrong.” City of Phila. v. Fraternal Order of Police, Lodge No. 5, 181 A.3d 485, 

489 (Pa. Cmwlth. 2018) (quoting Town of McCandless v. McCandless Police Officers Ass’n, 952 

A.2d 1193, 1196 n.6 (Pa. Cmwlth. 2008)).

12 The Union raises a third issue regarding whether common pleas erred in vacating the 

Award. As the first two issues encompass that ultimate determination, the issue is given no 

separate treatment in the Union’s Brief and is not discussed specifically here. 
8

nature of the Court’s review of an Act 111 award. The Union maintains that the 

Arbitrator did not exceed his powers by ordering an illegal act (a modification of the 

Plan without the requisite actuarial study). Noting this Court’s deference to the 

definition of salary as determined by the parties, the Union urges us to find that the 

disputed pay has always been included in that definition and is not unsettled by the 

Award. The Union asserts that the Award merely “ordered the restoration of the 

status quo,” and common pleas’ finding of a modification without further analysis 

was in error. (Union’s Brief at 18, 20.) 

In response, the City argues that common pleas was directly within its scope 

of review when it vacated the Award because the Award mandated a modification 

of the Plan. Relying primarily upon Shippensburg and Muhlenberg Township v. 

Muhlenberg Township Police Labor Organization (Pa. Cmwlth., No. 1327 C.D. 

2013, filed May 2, 2014), the City asserts that the present case is of the same nature, 

as the Award was an impermissible modification subject to reversal. The City 

contends that the Settlement Agreement created a practice of excluding the disputed

forms of compensation, thus the Award was an impermissible modification of that 

practice.

III. Analysis

The narrow certiorari scope of review restricts common pleas and this Court’s 

review of the Act 111 grievance arbitration Award at issue. Under narrow certiorari, 

this Court may only inquire into four aspects of the arbitration award: “(1) the 

jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of 

the arbitrator’s powers; and (4) deprivation of constitutional rights.” Pa. State Police 

v. Pa. State Troopers’ Ass’n, 656 A.2d 83, 90 (Pa. 1995). Based upon common 
9

pleas’ decision and the issues raised by the parties on appeal, only the third prong of 

narrow certiorari review, whether the Award exceeds the arbitrator’s powers, is at 

issue in the present case. 

This Court has determined that an Act 111 arbitration order must be vacated 

as exceeding an arbitrator’s authority if it requires a party to perform an illegal act. 

Shippensburg, 968 A.2d at 251. An arbitrator is only able to “require a public 

employer to do that which the employer could do voluntarily.” Pa. State Police, 656 

A.2d at 90. Orders modifying pension plans in the absence of an Act 205 study 

amount to an illegal act; thus they exceed the scope of an arbitrator’s powers. 

Shippensburg, 968 A.2d at 251. An order is considered to create a modification that 

requires an Act 205 study when it is “established that . . . calculations before the 

award were completely and consistently different from . . . calculations after the 

award.” Penn Twp. v. Penn Twp. Police Ass’n (Pa. Cmwlth., No. 2249 C.D. 2009, 

filed Dec. 13, 2010), slip op. at 5 (emphasis added).

13

 For example, in Shippensburg, 

this Court found that where a pension plan had not included the disputed pay for 25 

years, an arbitration award requiring its inclusion constituted a modification. 

Shippensburg, 968 A.2d at 251. 

Given the nearly identical issues and disputed language, our recent decision 

in Wilkes-Barre PBA is persuasive for resolving whether the Award constitutes a 

modification. In that case, a prior interest arbitration award added a term in the 

collective bargaining agreement stating that officers hired after the award “shall be 

entitled to pension benefits not in excess of [T]he Third Class City Code.” WilkesBarre PBA, slip op. at 4 (quotation omitted). The union grieved the matter when the 

disputed forms of compensation (i.e., overtime, holiday pay, court pay, training pay) 

 

13 Penn Township is cited for its persuasive value in accordance with Section 414(a) of the 

Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
10

were not included in pension calculations, and the arbitrator determined the City 

violated the collective bargaining agreement by excluding the compensation. Id., 

slip op. at 2, 3, 8. Common pleas vacated the award, finding it constituted a pension 

modification without an Act 205 study. Id., slip op. at 9. Under narrow certiorari

review, this Court reversed, reasoning that the award was not a modification of past 

practice. Id., slip op. at 14. We emphasized that because the City “took no action

. . . to formalize its interpretation” of what compensation was included in the 

definition of “salary” following the prior arbitration, the current arbitration award 

“did not modify the plan” but simply “sought to maintain the status quo.” Id., slip 

op. at 14 (emphasis in original). Distinguishing Shippensburg and Muhlenberg, we 

noted those cases lacked a past practice of “includ[ing] the disputed compensation.” 

Id., slip op. at 17. 

Due to the narrow certiorari scope of review and the almost indistinguishable 

nature of this case and Wilkes-Barre PBA, we must reverse common pleas. The 

Award in this case requires the City to do what it was already required to do, which 

is to include the disputed forms of compensation in pension contribution

calculations. Because the CBA and its governing ordinances have not been formally 

modified to reflect exclusion of the disputed forms of compensation, the City is 

bound by its past practice. Past practice, as established by the Auditor General 

Reports and Captain Bilski’s testimony, is inclusion of the disputed forms of 

compensation in the pension contributions. (R.R. at 296a, 349a.) In fact, the Auditor 

General Reports not only establish past practice, but also confirm the lack of formal 

modification to the ordinances through collective bargaining, even after the 

Settlement Agreement. The most recent report, which states that the current CBA 

remained effective through December 31, 2016, notes that the governing ordinances 
11

were not modified to bring the Plan in compliance. Rather the City remains under 

order from the Pennsylvania Labor Relations Board to continue benefits as they are 

currently set forth in the ordinances. Therefore, the language from the Settlement 

Agreement relating to compliance with The Third Class City Code does not suffice 

as a formal modification of the definition of salary under the CBA to exclude the 

disputed forms of compensation. Much like Wilkes-Barre PBA, because there was 

no formal change to the definition of “salary” after the Settlement Agreement, the 

exclusion of the disputed forms of pay from pension contributions for employees 

hired after January 1, 2013, was not in line with the ordinances. Therefore, when 

the Arbitrator ordered the City to include the disputed compensation once more, he 

was requiring compliance with the CBA and its corresponding ordinances as they 

stood at the time. It was not a modification triggering an Act 205 study, but rather 

a return to the language and past practice under the CBA. See Wilkes-Barre PBA, 

slip op. at 7.

This is consistent with this Court’s jurisprudence, as we have generally found 

that an impermissible modification to a plan exists where an established practice is 

altered or there is deviation from what is set forth in the CBA. See, e.g., Upper 

Merion Twp. v. Upper Merion Twp. Police Officers, 915 A.2d 174, 180 (Pa. Cmwlth. 

2006) (affirming the vacation of an arbitration order requiring a retroactive 

application of survivor pension benefits not contemplated within the collective 

bargaining agreement); Northampton Twp. v. Northampton Twp. Police Benevolent 

Ass’n, 885 A.2d 81, 85 (Pa. Cmwlth. 2005) (finding an Act 111 award that modified 

pension contributions from 5% to 3% without any actuarial evidence of the effect of 

that change exceeded the arbitrator’s powers); Falls Twp. v. Police Ass’n of Falls 
12

Twp. (Pa. Cmwlth., No. 1972 C.D. 2010, filed Oct. 19, 2011), slip op. at 1014

(acknowledging that an arbitration award changing the manner of pension 

contribution calculation from the established method under the collective bargaining 

agreement constituted a modification).

The City relies heavily upon Shippensburg and Muhlenberg to support the 

finding of a modification in the Award. Just as in Wilkes-Barre PBA, these cases 

are distinguishable. In Shippensburg, a police officer initiated a grievance when his 

unused vacation pay, paid to him in a lump sum, was not included in the calculation 

of his monthly pension. 968 A.2d at 248. The trial court affirmed an arbitration 

award ordering the Borough of Shippensburg to include the disputed pay. Id. at 248-

49. This Court reversed, reasoning that the arbitration award exceeded the 

arbitrator’s authority by modifying the longstanding 25-year past practice between 

the parties and unsettling the Borough’s pension liability. Id. at 251. As opposed to 

Shippensburg, the present case contains an established past practice between the 

parties that is restored rather than unsettled by the Award. The parties have 

historically included the disputed forms of pay in calculations, a practice that has not 

been formally modified by the Settlement Agreement nor any other collective 

bargaining. As a result, the Award requiring inclusion of the disputed forms of pay 

does not modify past practice, contradict the CBA, or unsettle the City’s pension 

liability. It simply maintains the status quo and is within the Arbitrator’s authority.

Muhlenberg is even less dispositive, as the parties in that case agreed the 

award was a modification. Thus, our analysis there focused only upon whether the 

arbitrator correctly found the modification to be actuarially sound. Muhlenberg, slip 

op. at 21, 27. Unlike in Muhlenberg, we are not determining whether the inclusion 

 

14 Falls Township is cited for its persuasive value in accordance with Section 414(a) of the 

Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
13

of the disputed compensation is an actuarially sound modification, but whether that 

inclusion is a modification at all. The Award in this case does not modify the pension 

liability of the City in a manner necessitating a study, but simply holds the City to 

the ordinances governing the Plan and the past practice to which it has previously 

adhered. The City’s argument that its past practice is exclusion of the disputed forms 

of compensation does not succeed, as that practice was never formalized. This lack 

of formalization to alter the forms of compensation that constitute salary was at the 

heart of the outcome in Wilkes-Barre PBA and dictates the same outcome here. 

Because the Award requires a return to the status quo rather than a modification, this 

decision was within the Arbitrator’s authority and common pleas had no grounds to 

reverse under narrow certiorari. Accordingly, we reverse.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Wilkes-Barre :

 :

v. : No. 1575 C.D. 2017

 :

Wilkes-Barre City Fire Fighters :

Local Union No. 104, :

Appellant :

O R D E R

NOW, October 11, 2018, the Order of the Luzerne County Court of Common 

Pleas, dated October 6, 2017, in the above-captioned case, is hereby REVERSED. 

_____________________________________

RENÉE COHN JUBELIRER, Judge