IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

 :

v. : No. 939 C.D. 2017

 : Argued: November 15, 2018

AFSCME District Council 47, :

Local 2187, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge (P)

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: February 7, 2019

AFSCME District Council 47, Local 2187 (AFSCME) appeals from an 

Order of the Court of Common Pleas of Philadelphia County (common pleas), 

dated June 21, 2017, which granted the City of Philadelphia’s (the City) Motion to 

Vacate an Arbitration Award. The Arbitrator found that the City violated its Civil 

Service Regulations (the Regulations) and the parties’ Collective Bargaining 

Agreement (CBA) when it placed the grievant, Vanessa Wright, upon her 

promotion, at Pay Range 17, Step 1 ($41,840). The Arbitrator ordered that 

Wright’s salary be placed “at least one step higher than what she was actually 

earning prior to her promotion,” but retained “jurisdiction for the purpose of 

resolving any disputes over the implementation of this remedy.” (Arbitration
2

Opinion and Award (Arbitration Award) at 14-15.) Common pleas vacated the 

Arbitration Award but, in its subsequent opinion issued pursuant to Rule 1925(a) 

of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 1925(a), concluded 

that it erred in doing so as the City prematurely sought judicial review of the 

Arbitration Award and, therefore, recommended that we remand the matter to the 

Arbitrator. We agree with common pleas that the City prematurely sought judicial 

review and thus vacate common pleas’ Order and remand for further proceedings.

I. Factual and Procedural Background

A. Wright’s Employment and Pay History with the City

The facts, which are largely undisputed, are as follows. In 1994, the City, 

through its Department of Human Services (DHS), hired Wright to work “in the 

Local Area Network Unit of the Division of Administration and Management.” 

(Arbitration Award at 4.) Beginning in December 2007, while Wright was 

employed in the job classification of a Computer User Support Specialist (CUSS), 

DHS temporarily promoted her to Network Support Specialist (NSS), which is in a 

higher job classification than the position of CUSS. The temporary promotion 

lasted for six months, the maximum amount of time permitted by the Regulations,1

 

1 Section 12.05 of the Regulations provide,

TEMPORARY PROMOTIONS. In the absence of an appropriate departmental 

promotional eligible list, a temporary appointment without examination to fill a 

vacancy may be authorized by the Director, upon the written request of an 

appointing authority. The appointing authority may request a temporary 

promotion for any employee with permanent Civil Service status whom the 

appointing authority deems qualified to perform the work of the position. All 

such temporary promotions shall continue for no more than a period of six (6) 

months. An employee may be compensated in temporary promotions for a 

maximum of six months in a twelve month period. A temporary promotion shall 

(Footnote continued on next page...)
3

at which point Wright was returned to the CUSS position. (Id. at 1, 4.) Every year 

between 2007 and 2012, Wright was temporarily promoted to NSS for six months 

and then returned to CUSS. (Id. at 5.) During these annual six-month temporary 

promotions to NSS, Wright received a higher base salary, with the City paying her 

at Pay Range 17, Step 2 ($43,305). (Id. at 4-5.) Each year when the six-month 

temporary promotion period ended, Wright continued to work on NSS 

assignments. The extent to which Wright continued performing NSS duties during 

these time periods is disputed. However, the parties do not dispute that, when she 

was not temporarily promoted to NSS, Wright received extra pay on top of her 

base salary as a CUSS when she worked for more than two hours on assignments 

classified as NSS assignments. This is known as pay for “out-of-class” 

assignments.2 (CBA § 14.A., Reproduced Record (R.R.) at 66a.)

In June 2014, Wright was permanently promoted to NSS. At that time, she 

had been classified as a CUSS, with a base salary at Pay Range 14, Step 4

($39,657), which was the top step for this class. Upon being permanently 

_____________________________

(continued...)

not continue for more than thirty (30) days after the Director has published a 

departmental promotional eligible list for the class.

Phila. Civ. Serv. Reg. 12.05, available at https://www.phila.gov/personnel/webregs/reg12.htm

(last visited January 31, 2019); see also (R.R. at 31a.)

2 Section 14.A. of the CBA provides,

[W]hen any Civil Service employee, with the approval of the appropriate 

department head or his/her deputy, is assigned to duties appropriate to a higher 

class or position than that in which the employee is employed, he/she shall be 

paid after the first two (2) hours of such work in any work day at the rate of the 

higher class for all hours worked in the higher class until the assignment is 

terminated.

(CBA § 14.A., Reproduced Record (R.R.) at 66a.)
4

promoted to NSS, the City placed Wright at Pay Range 17, Step 1 ($41,840). The 

City based its placement on Section 6.092 of the Regulations and Section 13.B. of 

the parties’ CBA,3 which govern at which pay step a promoted employee must be 

placed.4 Section 6.092 of the Regulations provides,

When an employee is promoted from a position in one class to a 

position in another class having a higher pay range, the employee will 

be paid at the pay step in the higher range which will provide an 

increase not less than would be provided by an upward adjustment of 

one pay step in the lower pay range or, if none would so provide, at 

the highest pay step in the higher range. If the employee is paid at the 

top step in the pay range of the class with the lower pay range, the 

increase will be an amount not less than the difference between the 

top two steps in the lower pay range.

Phila. Civ. Serv. Reg. 6.092, available at https://www.phila.gov/personnel/webregs

/reg06.htm (last visited January 31, 2019); (R.R. at 31a.) Section 13.B. of the 

parties’ CBA contains a similar provision:

When an employee is promoted from a position in one class to a 

position in another class having a higher pay range, the employee will 

be paid at the pay step in the higher range which will provide for 

him/her an increase in amount not less than would be provided by an 

upward adjustment of one pay step in the lower pay range or, if none 

would so provide, at the highest pay step in the higher range.

(CBA § 13.B., R.R. at 66a.)

 

3 While employed as a CUSS, Wright was part of a different union, AFSCME District 

Council 33, and, thus, her employment was governed by the City’s CBA with District Council 

33. Once promoted, Wright became part of AFSCME District Council 47 and was governed by 

the CBA at issue. 

4 The Regulations are incorporated into the CBA. 
5

B. Grievance Proceedings

AFSCME filed a grievance, claiming that, upon Wright’s permanent 

promotion to NSS, the City should have paid her at Pay Range 17, Step 4, based 

on the amount of compensation she was actually earning at the time of her 

promotion for work done as an NSS, and not based on the “piece of paper” listing 

her salary as a CUSS. (Arbitration Award at 2, 9 (quoting Hr’g Tr., March 6, 

2017, at 104, R.R. at 190a).) AFSCME claimed that Wright was earning more 

prior to her promotion than after her promotion. The grievance proceeded to a 

hearing before the Arbitrator, with the parties stipulating to the following question 

for determination:

Pursuant to the [CBA] and City Civil Service Regulations, did the 

City violate the parties’ [CBA] when it placed the Grievant, Vanessa 

Wright, at Step 1, after her promotion to the position of [NSS] in 

2014, rather than Step 4? If so, what shall be the remedy?

(Id. at 2 (quoting Hr’g Tr., March 6, 2017, at 7-8, R.R. at 116a-17a) (emphasis 

added).)

At the arbitration hearing, as relevant here, AFSCME argued that in 

determining the proper step upon Wright’s promotion, the City had to consider 

what Wright was actually earning for the seven years she was performing the 

duties and being paid as an NSS, and not just the base salary she was being paid as 

a CUSS.5 This would include the income Wright was paid when temporarily 

 

5 AFSCME also argued that Wright was entitled to a credit under Section 6.0992.D. of 

the Regulations for the time she worked as an NSS while temporarily promoted because her 

temporary promotion was “followed immediately by” her permanent promotion to NSS. Phila. 

Civ. Serv. Reg. 6.0992.D., available at https://www.phila.gov/personnel/webregs/reg06.htm (last 

visited January 31, 2019). The Arbitrator rejected this argument, and it is not currently before 

us. 
6

promoted to NSS and for work on out-of-class assignments. Wright and a staff 

representative for AFSCME (Staff Representative) testified that Wright received 

retroactive pay for seven years, from 2007 to 2014, because when her six-month 

temporary promotions to NSS expired and she was restored to CUSS, she was still 

doing NSS work during those years. As proof, Wright offered a “retroactive pay 

sheet” showing that she received retroactive pay from September 23, 2007, through 

April 20, 2008. (Hr’g Tr., March 6, 2017, at 47-48, R.R. at 156a-57a, 211a.) 

Wright stated that while the retroactive pay sheet was “just a sample,” in that it 

covered only seven months and not the seven years she worked and was 

compensated as an NSS, she reiterated that she received retroactive pay from 2007 

to 2014. (Hr’g Tr., March 6, 2017, at 47-48, R.R. at 156a-57a.) The Arbitrator

asked if the City’s Counsel would stipulate that Wright was paid for the entire 

seven years as an NSS, but the City refused to so stipulate. Staff Representative 

testified that even the City’s Personnel Department concluded, after evaluating the 

work Wright was doing, that she was doing the work of an NSS. Staff 

Representative further testified that Wright’s circumstances of being temporarily 

promoted to an NSS and then restored to a CUSS but continuing to perform the 

work of an NSS was “a very unusual and unique situation that” she had “not seen 

go on for this long.” (Hr’g Tr., March 6, 2017, at 27, R.R. at 136a.)

The City took the position that it had placed Wright at the correct step in 

accordance with Section 6.092 of the Regulations and Section 13.B. of the parties’ 

CBA. (Arbitration Award at 9.) The City, through its Deputy Director of the 

Office of Human Resources (Deputy Director), maintained that an employee’s pay 

during temporary promotions or pay for out-of-class assignments, whether paid 

retroactively or otherwise, is not considered when determining the proper step at 
7

which a promoted employee should be paid. Rather, what is considered is the 

employee’s classified pay range and pay step. Deputy Director testified that “when 

a person is promoted to a new title or a higher title and a higher pay range,” 

Section 6.092 of the Regulations require “they have to make at least equal to the 

amount of a one-pay step increase in their current title.” (Hr’g Tr., March 6, 2017,

at 64, R.R. at 173a.) Based on those considerations, Deputy Director explained the 

placement of Wright at Pay Range 17, Step 1. At the time of her promotion,

Deputy Director testified, Wright was at Pay Range 14, Step 4, which was the top 

pay step for her position as a CUSS. Because Wright was at the top pay step, in 

order to comply with Section 13.B. of the CBA, she had to receive an “amount not 

less than the difference between the top two steps in” Pay Range 14. (CBA

§ 13.B., R.R. at 66a.) Therefore, Deputy Director explained, a “dummy step,” or 

Step 5, was created whereby the difference between the top two pay steps in Pay 

Range 14, Step 3 and Step 4, was added to her top pay step. (Hr’g Tr., March 6, 

2017, at 66, R.R. at 175a.) In other words, the difference between Step 3 

($38,472) and Step 4 ($39,657) or $1185, was added to $39,657 for a total of 

$40,842. Wright, according to Deputy Director, had to make at least $40,842. 

Since $41,840 is more than $40,842, it was determined that Wright was to be paid, 

as an NSS, at Pay Range 17, Step 1. 

C. Arbitration Award

The Arbitrator issued an Opinion and Award, finding that since 2007, the 

City had paid Wright, “retroactively or otherwise[,] as an NSS” while she was a 

CUSS, “based on her being compensated with out-of-class pay for continuously 

performing the duties and responsibilities of an NSS from 2007 through the time of 
8

her promotion.”6 (Arbitration Award at 12.) Stated otherwise, the City had 

“confirmed . . . that while officially working in the CUSS class prior to her 

promotion[, Wright]’s duties and responsibilities were commensurate with those of 

someone working in the NSS class.” (Id. (emphasis in original).) The Arbitrator 

found these circumstances “unique.” (Id.) Inasmuch as Wright “de facto worked 

as an NSS for close to seven years, and the City having de facto paid her as such,” 

the Arbitrator concluded that the City should not have regarded Wright “as a fulltime CUSS when it promoted her to the NSS class,” and “the City failed to 

properly compensate her when it placed her at Step 1 of the NSS Pay Range upon 

her promotion.” (Id. at 12-13.) The Arbitrator acknowledged the testimony of 

Deputy Director that the City does not consider additional pay received while 

temporarily promoted or while working on out-of-class assignments when 

determining an employee’s initial salary upon promotion. The Arbitrator 

concluded that, while that generally may be the case, given the “unique set of 

facts” of this case, it was improper to do so here. (Id. at 13.) The Arbitrator noted, 

citing Deputy Director’s testimony, that the purpose behind the City’s salary 

determination is to ensure that a person who is promoted receives a pay increase, 

but Wright did not receive a pay increase because she was receiving a greater 

salary for nearly seven years when she was temporarily promoted and doing outof-class assignments than when she was permanently promoted. In short, the 

Arbitrator concluded that the City violated the CBA and the Regulations “when it 

failed to consider the total compensation being earned by [Wright] (for performing 

 

6 The Arbitration Award appears to use the term “out-of-class” pay to refer to both the 

pay Wright received while temporarily promoted and for working on out-of-class assignments. 
9

[NSS] duties prior to her promotion) at the time it promoted her to the [NSS] class 

in June 2014.” (Id. at 14-15.)

In a footnote, the Arbitrator noted that the record did “not reveal the precise 

amounts of out-of-class pay [Wright] ha[d] received for performing her NSS duties 

while still holding the CUSS job title.” (Id. at 14 n.1.) However, the Arbitrator 

found that Wright’s “failure to produce such an accounting [was not] a basis to 

deny her relief, inasmuch as she credibly testified regarding her receipt of out-ofclass pay up through the time of her promotion and the City (which [wa]s in the 

best position to provide such records) failed to rebut such testimony.” (Id.) Given 

the lack of evidence as to what Wright was actually earning prior to her promotion, 

the Arbitrator ordered the City to prospectively adjust Wright’s salary, placing her 

“at least one step higher than what she was earning prior to her promotion ($39,657 

as a [CUSS], plus any out-of-class pay she was receiving for performing her NSS 

duties at the time of her promotion).” (Id. at 15.) The Arbitrator further ordered 

that the City was to compensate Wright in this “manner retroactive to the date of 

her promotion.” (Id.) The Arbitrator “retain[ed] jurisdiction for the purpose of 

resolving any disputes over the implementation of this remedy.” (Id. (emphasis 

added).)

D. Proceedings in Common Pleas

The City then filed its Motion to Vacate the Arbitration Award (Motion)

with common pleas. The City argued that the Arbitration Award should be vacated 

because it “was not a rational interpretation of the [CBA].” (Id. at 14a, 23a.) The 

CBA and the Regulations, the City contended, do not include pay received while 

temporarily promoted or for work on out-of-class assignments in calculating the 
10

appropriate salary step of a promoted employee. In making that calculation, the 

City argued, it considers only the employee’s pay range and step, that is, the 

employee’s base salary. Therefore, according to the City, the Arbitrator’s 

conclusion that Wright was a de facto NSS, and her base salary was not that of a 

CUSS but an NSS, did not rationally flow from the CBA. The City thus asserted 

that it placed Wright at the correct pay step, and the Arbitration Award should be 

vacated. 

AFSCME, opposing the Motion, argued that the Arbitration Award drew its 

essence from the CBA and, therefore, the Motion should be denied and the 

Arbitration Award confirmed. AFSCME argued that the Arbitrator rationally 

reasoned that the intent of Section 13.B. of the CBA and Section 6.092 of the 

Regulations is to afford a promoted employee an increase in salary. The record 

showed, AFSCME argued, that Wright was performing the duties of an NSS up 

until the time of her promotion and, importantly, in performing those duties, the 

City paid Wright as an NSS, at $43,305. However, AFSCME argued, Wright did 

not receive an increase in salary but a reduction, going from $43,305 to $41,840. 

AFSCME contended that the City was seeking to go beyond the narrow scope and 

standard of review and have common pleas interpret the CBA so as not to include 

the consideration of pay received while temporarily promoted and for work on outof-class assignments in determining the correct salary step of a promoted 

employee.

During oral argument on the Motion, in the course of questioning the 

attorneys, common pleas asked at what pay step had the Arbitrator placed Wright. 

Counsel for AFSCME answered that it still needed to be determined. AFSCME 

Counsel stated that because he did not have the City’s records, he did not know at 
11

what pay step Wright should be placed, whether “she should be at Step 2, 3 or 4,”

and that this was the reason “why the [A]rbitrator retained jurisdiction for purposes 

of the remedy.” (Hr’g Tr., June 21, 2017, at 16, R.R. at 262a.) Common pleas 

then asked if the Motion was premature, and AFSCME Counsel answered that if 

the question was how much the City had to compensate Wright, then the Motion 

was premature, and Counsel noted again that the Arbitrator had retained 

jurisdiction to decide that question. 

Following oral argument, common pleas granted the Motion and vacated the 

Arbitration Award “to the extent [the Arbitration Award] requires the City to 

compensate or pay [Wright] for ‘any out-of-class pay she was receiving for 

performing her NSS duties at the time of her promotion.’” (Common Pleas Order 

(quoting Arbitration Award at 15).) Common pleas explained its rationale on the 

record following oral argument, stating it interpreted the Arbitration Award as 

awarding Wright an increase in pay step plus out-of-class pay. However, common 

pleas concluded, there was no basis in either the CBA or the Regulations for the 

Arbitrator “to provide any increase in pay other than the one-step increase even in 

cases where there is prolonged use of temporary positions.” (Hr’g Tr., June 21, 

2017, at 26-27, R.R. at 272a-73a.) Therefore, common pleas concluded, the 

Arbitration Award did not logically flow from the CBA.

AFSCME filed its appeal, and common pleas directed AFSCME to file a 

Concise Statement of Errors Complained of on Appeal in accordance with Rule 

1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(b). 

AFSCME did so, asserting, inter alia, that common pleas “should have denied the 

[Motion] as premature or remanded the matter to the Arbitrator” because the 

Arbitrator had retained jurisdiction over the remedy to be implemented. (Rule 
12

1925(b) Statement at 2, R.R. at 278a.) Alternatively, AFSCME argued that 

common pleas had misinterpreted the Arbitration Award and that common pleas 

erred in its application of the essence test. 

In common pleas’ responsive opinion (1925(a) Opinion), common pleas 

stated that this Court should remand the matter to the Arbitrator because the City’s 

Motion was premature. Common pleas characterized the City’s Motion as one 

challenging the implementation of the Arbitration Award. (1925(a) Opinion at 4.) 

Common pleas noted that the Arbitrator did not make a finding of fact as to 

Wright’s actual earnings prior to her promotion because, as the Arbitrator stated in 

a footnote, the record did not contain such proof and, therefore, the Arbitrator did 

not specifically state at which pay step Wright should be placed. (Id. at 2, 4-5.) 

However, common pleas also noted that the Arbitrator provided guidance to the 

parties on how to determine the appropriate pay step for Wright, including the 

calculation of the amount of out-of-class pay Wright received, while the Arbitrator 

specifically “‘retain[ed] jurisdiction for the purpose of resolving any disputes over 

the implementation of this remedy.’” (Id. at 4-5 (quoting Arbitration Award at 

15).) Common pleas explained that to allow the City to seek judicial review now, 

prior to the Arbitrator’s resolution of the dispute regarding the implementation of 

the remedy, including whether further factual findings were necessary, “would 

negate the benefit of arbitration.” (Id. at 5.) Common pleas noted that the parties, 

on remand, would be able to submit evidence, which would likely include the 

precise amounts of pay Wright received for performing work as an NSS but while 

holding the title of a CUSS, so that the dispute over the implementation of the 

remedy could be resolved. (Id.). Once the Arbitrator makes additional findings of 

fact and enters a final determination of Wright’s claim, common pleas stated, the 
13

City could seek judicial review. (Id.) Given the foregoing, common pleas 

concluded, the City should have let the Arbitrator settle any disputes regarding 

implementation of the remedy, rather than prematurely filing its Motion. (Id. at 2-

3.) AFSCME’s appeal is now ready for disposition by this Court.7

II. Discussion

A. Arguments on Appeal

On appeal, AFSCME argues8that the City prematurely invoked judicial 

review and, thus, common pleas erred when it reached the merits of the City’s 

Motion, rather than dismissing it as premature. At oral argument on the Motion, 

AFSCME contends, it became clear to common pleas that the City was focused on 

the remedy. At that point, with the Arbitrator having retained jurisdiction over the 

implementation of the remedy, common pleas should have denied the Motion 

rather than encroaching on the Arbitrator’s authority. To common pleas’ credit, 

AFSCME notes, it recognized its errors, as stated in its Rule 1925(a) Opinion, but 

by that point it was too late.

9

 Alternatively, AFSCME asserts that common pleas 

 

7 The standard of review of a grievance arbitration is the “essence test.” This is a twopart analysis that requires the Court:

[f]irst, . . . [to] determine if the issue as properly defined is within the terms of the 

[CBA]. Second, if the issue is embraced by the agreement, and thus, 

appropriately before the arbitrator, the arbitrator’s award will be upheld if the 

arbitrator’s interpretation can rationally be derived from the [CBA].

State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. & Univ. Prof’l Ass’n (PSEA-NEA), 743 

A.2d 405, 413 (Pa. 1999). 

8 We have reordered AFSCME’s arguments for purposes of our review.

9AFSCME filed an Application to Remand (Application) with this Court, seeking entry 

of an order consistent with common pleas’ 1925(a) Opinion. By order dated December 21, 2017, 

this Court (Quigley, S.J.), denied the Application as it was apparent that the Application sought 

(Footnote continued on next page...)
14

erred in vacating the Arbitration Award because it draws its essence from the 

CBA. Highlighting the narrow standard of review of an arbitration award, 

AFSCME argues that, as the Arbitrator determined and supported by Deputy 

Director’s testimony, the stated intent behind Section 13.B. of the CBA is to 

provide an employee, upon her promotion, an increase in salary. Since Wright did 

not receive an increase in pay upon her promotion, but a reduction because the City 

did not take into account Wright’s earnings during her temporary promotion and 

for work on out-of-class assignments, AFSCME argues the Arbitrator correctly 

sustained the grievance and ordered the City to adjust Wright’s salary step 

calculation. Therefore, AFSCME concludes, this Court should remand the matter 

for the Arbitrator to implement the appropriate remedy or, alternatively, should 

confirm the Arbitration Award.

The City argues that its Motion was not premature since it challenged

whether it had violated the CBA at all, and not implementation of the remedy. In 

other words, “[t]here is no need to implement a remedy that should not have 

existed in the first place.” (The City’s Brief (Br.) at 15.) Next, the City argues that 

the Arbitration Award did not draw its essence from the CBA. This is because 

“nothing in the CBA, Civil Service Regulations, or past practice requires the City 

to consider ‘out-of-class’ hourly payments when an employee receives a 

permanent promotion,” and the Arbitrator could not point to anything that required 

the City to do so. (Id. at 17.) Incidental hourly payments made under the CBA, 

including pay for work on out-of-class assignments or overtime, do not affect base 

_____________________________

(continued...)

to have a single judge make a decision on the merits, which could not occur without a quorum of 

judges.
15

salary, the City argues. Rather, these payments merely “reflect an increase in an 

employee’s hourly rate for the time periods in which the employee is actually 

working out-of-class or overtime.” (Id. at 17-18.) The only things the CBA and 

the Regulations require the City to consider, it contends, is the pay range and step 

“for an employee’s job classification when determining her base salary upon 

promotion.” (Id. at 19.) Finally, the City argues, the Arbitrator did not have the 

authority to create his own form of de facto promotion, as such a promotion does 

not draw its essence from the CBA and was not permitted by the Regulations. 

Accordingly, the City asks this Court to affirm the Order of common pleas 

vacating the Arbitration Award.

B. Analysis 

Before we can reach the merits, we must first address whether the City 

prematurely invoked judicial review. Under the Public Employe Relations Act 

(PERA),10 “[a]rbitration of disputes or grievances arising out of the interpretation 

of the provisions of a [CBA] is mandatory,” with “the final step” in the procedure 

adopted for resolving disputes or grievances being “a binding decision by an 

arbitrator.” Section 903 of PERA, 43 P.S. § 1101.903. The parties’ CBA 

memorializes Section 903, providing for, as a final step in the grievance procedure, 

arbitration, which “shall be final and binding.” (CBA § 7.A., R.R. at 58a, 60a.) 

Where, as here, “arbitration is mandatory, judicial involvement must await 

completion of that process.” Montgomery Cty. Intermediate Unit v. Montgomery 

Cty. Intermediate Unit Educ. Ass’n, 797 A.2d 432, 434 (Pa. Cmwlth. 2002)

(emphasis added).

 

10 Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
16

In Montgomery County, the employers terminated several employees, and 

the employees sought to grieve their terminations under their CBA. Id. at 433. 

The employers disagreed that the employees’ terminations were subject to 

arbitration, asserting that the terminations were governed by the Public School 

Code of 1949 (School Code).11 The matter proceeded to arbitration with the parties 

agreeing to bifurcate the process, submitting the issue of arbitrability to the 

arbitrator first, although the parties could not agree as to what would happen next if 

the arbitrator concluded that the matter was arbitrable. Id. The arbitrator 

ultimately found that the matter was arbitrable. Id. The employers petitioned 

common pleas for review, and common pleas vacated the award, stayed any further 

arbitration proceedings, and “directed the parties to proceed through the statutory 

provisions of the School Code.” Id. The employees, through their associations, 

appealed to this Court, and we vacated common pleas’ order and remanded the 

matter to the arbitrator to render a decision on the merits. Id. at 434. In doing so, 

we concluded that the arbitrator’s determination that the matter was arbitrable was 

not immediately appealable. Id. Rather, since arbitration of this grievance was 

mandatory, judicial involvement had to “await completion of that process.” Id. 

We explained that the reason for requiring completion of the arbitration process 

was to “increase[] the likelihood of more efficient, uninterrupted arbitration and, 

hopefully, resolution beyond the courthouse walls.” Id.

In Fastuca v. L.W. Molnar & Associates, 10 A.3d 1230, 1241 (Pa. 2011),

while not involving the PERA but the interpretation of the meaning of “award” 

contained in Section 7341 of the Uniform Arbitration Act, 42 Pa. C.S. § 7341,12 our 

 

11 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101-27-2702.

12 Section 7341 provides as follows, 

(Footnote continued on next page...)
17

Supreme Court concluded that in order for an arbitrator’s decision to constitute an 

award, it had to “finally resolve[] all disputed matters submitted to him or her by 

the parties and must, therefore, include the arbitrator’s decision on all outstanding 

legal issues, and all necessary factual determinations.” Fastuca, 10 A.3d at 1241. 

In reaching this conclusion, our Supreme Court was guided by its decision in Great 

American Insurance Company v. American Arbitration Association, 260 A.2d 769, 

770 (Pa. 1970), where, after an arbitrator determined that coverage under an 

uninsured motorist provision existed for a passenger injured in a taxicab, the 

insurer filed a complaint in equity seeking to enjoin the arbitrator from proceeding 

to a hearing on damages. Our Supreme Court in Great American stated that it was 

improper for the insurer to seek review of the arbitrator’s decision by filing a 

complaint in equity. Id. at 771. The arbitrator’s decision, the Supreme Court 

noted, had not resulted in an award, as “the damage stage of the proceedings had 

not yet been reached.” Id. The arbitrator could have concluded, the Supreme 

Court stated, “that, even though coverage existed, no damages would be awarded, 

or the award would be satisfactory to the insurer.” Id. Stated differently, “the 

insurer was attempting to gain interlocutory review by the equity route rather than 

await a final award and then petition to vacate it.” Id. Based on Great American, 

_____________________________

(continued...)

The award of an arbitrator in a nonjudicial arbitration which is not subject to 

Subchapter A (relating to statutory arbitration) or a similar statute regulating 

nonjudicial arbitration proceedings is binding and may not be vacated or modified 

unless it is clearly shown that a party was denied a hearing or that fraud, 

misconduct, corruption or other irregularity caused the rendition of an unjust, 

inequitable or unconscionable award.

42 Pa. C.S. § 7341.
18

and the common and accepted meaning of “award,” as “‘[a] final judgment or 

decision,’” the Supreme Court concluded in Fastuca that since the matter had been 

bifurcated into two phases – one surrounding the dissolution of a partnership and

one to determine the value of one partner’s share in the partnership – the trial court 

erred when it terminated the arbitration after the first phase. Fastuca, 10 A.3d at 

1235-36, 1240-41 (quoting Black’s Law Dictionary 147 (8th ed. 2004)). The 

Supreme Court explained that this was because the arbitrator’s decision “did not 

resolve all outstanding issues arising from the dispute” between the parties. Id. at 

1240. “[F]inality in disposing of all the matters submitted by the parties to the 

arbitrator for his or her decision,” the Supreme Court stated, was “the sine qua non 

of an award.” Id.

Under federal law, which we may follow “due to the similarity between the 

federal labor law and our own laws dealing with labor relations,” Office of 

Administration v. Pennsylvania Labor Relations Board, 916 A.2d 541, 550 (Pa. 

2007), Section 301(b) of the Labor Management Relations Act, 1947, 29 U.S.C. 

§ 185(b),13 as interpreted by the United States Supreme Court, requires that an 

arbitrator’s award in a labor dispute be “final and binding” before a court may 

 

13 Section 301(b) of the Labor Management Relations Act, 1947 provides,

Any labor organization which represents employees in an industry affecting 

commerce as defined in this chapter and any employer whose activities affect 

commerce as defined in this chapter shall be bound by the acts of its agents. Any 

such labor organization may sue or be sued as an entity and in behalf of the 

employees whom it represents in the courts of the United States. Any money 

judgment against a labor organization in a district court of the United States shall 

be enforceable only against the organization as an entity and against its assets, and 

shall not be enforceable against any individual member or his assets.

29 U.S.C. § 185(b).
19

vacate or enforce the award, Millmen Local 550, United Brotherhood of 

Carpenters and Joiners of America, AFL-CIO v. Wells Exterior Trim, 828 F.2d 

1373, 1375 (9th Cir. 1987) (citing General Drivers, Warehousemen and Helpers,

Local Union No. 89 v. Riss and Co., 372 U.S. 517, 519 (1963)). This is known as 

“the complete arbitration rule.” Union Switch & Signal Div. Am. Standard Inc. v. 

United Elec., Radio & Mach. Workers of Am., Local 610, 900 F.2d 608, 611 (3d 

Cir. 1990) (internal quotation marks omitted). Under the complete arbitration rule, 

an award is not considered final until the arbitrator has determined every issue 

submitted by the parties. Millmen Local 550, 828 F.2d at 1376. Thus, an award is 

not considered final and binding if the arbitrator determines liability, but leaves the 

question of what remedy should follow open and retains jurisdiction to resolve any 

subsequent remedial disputes. Union Switch, 900 F.2d at 611.

In Union Switch, the arbitrator issued a decision on the question of liability, 

finding that the employer had violated the CBA in terminating certain employees. 

Id. at 609. The arbitrator, while ordering that the employees be retroactively 

reinstated and “made whole,” retained jurisdiction “to make final rulings on any 

remedial disputes that the parties [we]re unable to resolve after full discussion.” 

Id. At this point, the employer filed a complaint in federal district court to have the 

arbitrator’s award vacated, while the employees, through their union, 

counterclaimed for enforcement of the award. Id. The parties filed competing 

motions for summary judgment, and the district court granted summary judgment 

to the union. Id. No appeal was taken. The parties then negotiated as to what 

would make the employees “whole,” but could not come to an agreement. Id. at 

610. The union requested that the employer submit the matter back to the original 

arbitrator, but the employer refused, arguing that the arbitrator had no jurisdiction, 
20

and that this was a separate grievance that had to go before a new arbitrator. Id. 

The union then filed a pleading in federal district court requesting that the matter 

be remanded to the original arbitrator, which the district court denied, and the 

union appealed. On appeal, the United States Court of Appeals for the Third 

Circuit criticized the district court’s exercise of jurisdiction over the original 

complaint and counterclaim as it did, calling it “serious error” to entertain the 

cross-motions to vacate and enforce. Id. Instead, the Third Circuit stated, the 

district court should have applied “the complete arbitration rule,” consistent with 

the “teachings of [the Third Circuit] and . . . every other Court of Appeals.” Id. at 

610-11. The Third Circuit emphasized that, as a result of the district court’s failure 

to apply the complete arbitration rule, “fragmented litigation” had ensued, with the 

matter “occup[ying] a federal magistrate, a federal district court judge, and . . . a 

panel of the Court of Appeals,” which still was “not in a position to resolve the 

entire dispute and put an end to this controversy.” Id. at 611 (internal quotation 

marks omitted). In contrast, the Third Circuit explained that had the district court 

dismissed the original complaint and counterclaim, “and the parties were still 

unable to agree upon a remedy, the arbitration would have continued through to a 

determination of the appropriate make whole relief and only then, if at all, would 

the dispute have been presented in the district court,” at which point “the district 

court would [have] be[en] in a position to resolve all of the issues presented by this 

nexus of operative facts.” Id. (emphasis in original). Although the Third Circuit 

concluded that the complete arbitration rule is not a jurisdictional rule but a 

prudential one and, therefore, the district court had jurisdiction, the Third Circuit 

stated that its opinion “should alert the bench and bar to the necessity of an 

arbitration to be complete before a section 301 action is entertained so that a 
21

premature action will be discouraged or, if brought, will be met with a motion to 

dismiss.” Id. at 611-14.

The consistent theme that runs through these cases is that there are important 

prudential reasons for requiring that the arbitration resolve all outstanding issues 

before a party may seek judicial review: it encourages efficient resolution of the 

matter rather than piecemeal litigation through an interlocutory appeal, which is 

sometimes undertaken solely to delay resolution of the dispute; it avoids 

unnecessary time and expense spent seeking judicial review that may only result in 

a remand to the arbitrator; it evades relitigation of the same dispute; and it may 

even result in a resolution without judicial interference. See Fastuca, 10 A.3d at 

1240-41; Montgomery Cty., 797 A.2d at 434; Union Switch, 900 F.2d at 611-614;

see also W. Pottsgrove Twp. v. W. Pottsgrove Police Officers’ Ass’n, 791 A.2d 

452, 456 n.13 (Pa. Cmwlth. 2002) (stating “that the arbitrator’s retention of 

jurisdiction promotes judicial economy by reducing delay in the final resolution of 

the matter, avoiding unnecessary time and expense and evading relitigation of 

essentially the same dispute”).

Given the foregoing, we conclude that the City prematurely invoked judicial 

review when it filed its Motion. The Arbitrator did not resolve all issues presented. 

Indeed, one question submitted to the Arbitrator was that if a violation of the CBA 

and Regulations was found, “what shall be the remedy?” (Arbitration Award at 2.) 

Because there was neither proof nor agreement of “the precise amounts of out-ofclass pay [Wright] ha[d] received for performing her NSS duties while still holding 

the CUSS job title,” (id. at 14 n.1), the Arbitrator retained jurisdiction for the

purpose of implementing the remedy he ordered, namely, that the City place 

Wright “at least one step higher than what she was earning prior to her promotion 
22

($39,657 as a [CUSS], plus any out-of-class pay she was receiving for performing 

her NSS duties at the time of her promotion).” (Id. at 14 n.1, 15.) There are 

factual issues regarding the amount Wright was paid for the seven years at issue,

and it is unclear what the result will be. For example, the parties may have 

conflicting evidence as to what Wright was paid, which will require the Arbitrator 

to make credibility determinations and findings of fact, or the pay Wright received 

may have been more than $39,657 but less than $40,842, which would mean that 

the City placed Wright at the correct step, or, as in Great American, that Wright 

essentially had “no damages.” 260 A.2d at 771; see also Peabody Holding Co., 

LLC v. United Mine Workers of Am., Int’l Union, Unincorporated Ass’n, 815 F.3d 

154, 161 (4th Cir. 2016) (internal quotation marks and citation omitted) 

(analogizing the complete arbitration rule to the general prohibition against 

interlocutory appeals, which promotes efficiency because interlocutory appeals 

require an appellate court to consider an issue that may ultimately be rendered 

moot if the appealing party prevails). Thus, it would be premature to review the 

Arbitration Award at this stage.

While the City argues that “[t]here is no need to implement a remedy that 

should not have existed in the first place,” (The City’s Br. at 15), this does not 

permit the City to bypass the requirement that all issues presented to the Arbitrator 

be resolved before seeking judicial review of whether the Arbitrator’s 

interpretation is rationally derived from the CBA. The City’s argument, were we 

to follow it, would eviscerate the requirement that the arbitration be final, for in 

every case a party could claim that the arbitrator’s determination of liability was 

erroneous and that, therefore, the court should intervene before damages are 

addressed. See Peabody Holding Co., LLC, 815 F.3d at 161 (rejecting the same 
23

argument because “it could always be claimed that judicial review of an 

arbitrator’s liability ruling might potentially save the parties and the arbitrator 

remedial time” and “could even be used to support one party’s right to claim 

immediate recourse to court in disputes where there is no semblance of 

bifurcation”).

III. Conclusion

Accordingly, we agree with common pleas that it should not have vacated 

the Arbitration Award because it was not yet final. Therefore, we vacate common 

pleas’ Order vacating the Arbitration Award and remand this matter to common 

pleas with the instruction to remand the matter to the Arbitrator to resolve the 

outstanding issue of the remedy to be implemented. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

 :

v. : No. 939 C.D. 2017

 :

AFSCME District Council 47, :

Local 2187, :

Appellant :

O R D E R

NOW, February 7, 2019, the Order of the Court of Common Pleas of 

Philadelphia County (common pleas), dated June 21, 2017, is VACATED. The 

matter is REMANDED to common pleas with the instruction to REMAND the 

matter to the Arbitrator for further proceedings in accordance with this opinion.

Jurisdiction relinquished.

_____________________________________

RENÉE COHN JUBELIRER, Judge