IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Gettysburg :

 :

v. : No. 1768 C.D. 2013

 : Argued: June 16, 2014

Teamsters Local No. 776 :

 :

Appeal of: International Brotherhood :

of Teamsters, Local 776 :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY

JUDGE LEADBETTER FILED: October 29, 2014

The International Brotherhood of Teamsters, Local No. 776 (Union) 

appeals from the order of the Court of Common Pleas of Adams County (trial 

court) that granted the petition filed by the Borough of Gettysburg (Borough) 

seeking to partially vacate the interest arbitration award to the extent that it 

increased wages of the Borough police officers for the fiscal year 2011. The Union 

challenges the trial court's conclusion that the arbitration panel did not have

jurisdiction to render such award under the Act of June 24, 1968, P.L. 237, 

commonly known as Act 111, 43 P.S. §§ 217.1 - 217.10. We affirm.

The record reveals the following relevant facts. The collective 

bargaining agreement (CBA) between the Borough and the Gettysburg Police 

Officers Association (Association), the former collective bargaining representative

of the Borough police officers, was scheduled to expire on December 31, 2009. In 

July 2009, the Borough and the Association began negotiating terms of a new 
2

CBA. The Union was subsequently elected as the Borough police officers' new 

collective bargaining representative and certified by the Pennsylvania Labor 

Relations Board in February 2010.

On June 14, 2010, the Union's business agent, Mark Andreozzi, sent 

the Borough's counsel, Gretchen K. Love, Esquire, a letter inviting the Borough to 

begin collective bargaining for a new CBA. He enclosed a proposed CBA with the 

letter. Fifteen days later on June 29, the Union's counsel, Ira H. Weinstock, 

Esquire, asked the American Arbitration Association (AAA) to send him and 

Attorney Love a list of three arbitrators for an interest arbitration.

1

 Reproduced 

Record (R.R.) at 200a. In September, Andreozzi, Attorney Love and the Borough 

manager, Florence Ford, met for collective bargaining. Attorney Love 

subsequently received a list of three arbitrators from the AAA. She then sent 

Attorney Weinstock letters on November 18 and December 29, 2010, stating that 

the Borough would not participate in selecting a panel of arbitrators because the 

Union failed to follow the required time frame in Act 111 in obtaining the list of 

arbitrators and that the Borough was willing to continue to bargain in good faith, as 

required by Section 2 of Act 111, 43 P.S. § 217.2.2 R.R. at 202a, 204a and 205a.

In a memo sent to the Union on June 8, 2011, the Borough manager, 

 

1 An interest arbitration occurs when an employer and its employees are unable to agree on 

terms of a CBA. City of Phila. v. Int'l Ass'n of Firefighters, Local 22, 999 A.2d 555, 558 n.2 (Pa. 

2010). A grievance arbitration, on the other hand, occurs when the parties disagree on 

interpretation of an existing CBA. Id. An interest arbitration is an extension of collective 

bargaining process. City of Butler v. City of Butler Police Dep't, Fraternal Order of Police, 

Lodge #32, 780 A.2d 847, 849 n.3 (Pa. Cmwlth. 2001).

2

Section 2 of Act 111 provides that "[i]t shall be the duty of public employers and their 

policemen and firemen employes to exert every reasonable effort to settle all disputes by 

engaging in collective bargaining in good faith and by entering into settlements by way of 

written agreements and maintaining the same."
3

Ford, proposed wage increases of 3% for 2011, 2% for 2012 and 2.5% for 2013 for 

the police officers, and their 10% pre-tax contribution towards health insurance. 

Union's Exhibit No. 2; R.R. at 349a. The Union rejected Ford's proposal. The 

Union's agent, Andreozzi, then sent Ford a letter on June 8, 2011, stating that the 

parties' good-faith negotiations resulted in a tentative agreement, except 

compensation, insurance, clothing and equipment, pension, and the term of an 

agreement. Union's Exhibit No. 4; R.R. at 535a. He further stated that the parties 

had agreed that "the next natural and logical step in pursuing a final remedy [was]

to use the existing list of Arbitrators." Id. Attorney Love responded that the 

Borough was willing to participate in an interest arbitration utilizing the arbitration 

panel obtained in November 2010, but that the Borough "reserve[d] its right to 

raise any and all procedural deficiencies as part of this process." Attorney Love's 

June 16, 2011 Letter (Borough's Exhibit No. 2); R.R. at 346a. After Attorney Love

(the arbitrator for the Borough) and Attorney Weinstock (the arbitrator for the 

Union) each eliminated one name from the list of arbitrators, Robert Gifford 

became the third arbitrator and the arbitration panel's chairperson.3

After an arbitration hearing held on August 17, 2011, Arbitrator 

Gifford issued an arbitration award covering the period from January 1, 2011 

through December 31, 2013. The award included 4% wage increases for 2011 and 

 

3 An arbitration panel is composed of three arbitrators: one appointed by the public 

employer, one appointed by the union, and one agreed upon by the public employer and the 

union. Section 4(b) of Act 111, 43 P.S. § 217.4(b). If a third arbitrator has not been appointed 

after 10 days from the appointment of the two arbitrators by the public employer and the union, 

then either arbitrator may request the AAA to furnish a list of three arbitrators. Id. The 

arbitrator appointed by the public employer first eliminates one name from the list. Id. The 

arbitrator appointed by the union eliminates another name from the list. The individual 

remaining on the list will be the third arbitrator and act as chairperson of the arbitration panel. 

Id.
4

2012, 3.99% wage increases for 2013, and improved benefits. Attorney Weinstock 

concurred in the award. Attorney Love dissented, stating that the majority panel 

did not decide the procedural issue raised by the Borough and that the arbitration 

panel lacked jurisdiction to award wage increases for the fiscal year 2011 due to 

the Union's noncompliance with the procedural requirements of Act 111. In the 

concurring opinion, Attorney Weinstock stated that the evidence indicated that "the 

procedural issue raised by the Borough of Gettysburg was waived by the parties in 

negotiations and was not pursued by the Borough." R.R. at 30a. The arbitration 

panel retained jurisdiction until the parties' ratification and execution of the new 

CBA. 

The Borough filed a petition to partially vacate the interest arbitration 

award to the extent that it granted the police officers 4% wage increases and step 

movements for 2011. The Borough alleged that the arbitration panel lacked 

jurisdiction to render such award due to the Union's failure to comply with the 

requirements of Act 111 for requesting an arbitration. The Borough noted that the 

Union never declared an impasse in the bargaining and never served written notice 

of arbitration containing specifications of the issues upon the Borough Council 

president. The Union filed an answer, alleging that the Borough waived the issue.

Under Section 3 of Act 111, 43 P.S. § 217.3, collective bargaining 

between a public employer and its police officers or firefighters must begin "at 

least six months before the start of the fiscal year of the [public employer]." The 

Borough's fiscal year 2011 began on January 1, 2011. Section 4(a) of Act 111, 43 

P.S. § 217.4(a), further provides:

If in any case of a dispute between a public 

employer and its policemen or firemen employes the 

collective bargaining process reaches an impasse and 

stalemate, or if the appropriate lawmaking body does not 
5

approve the agreement reached by collective bargaining, 

with the result that said employers and employes are 

unable to effect a settlement, then either party to the 

dispute, after written notice to the other party containing 

specifications of the issue or issues in dispute, may 

request the appointment of a board of arbitration.

[Emphasis added.]

An impasse or stalemate is deemed to occur in the collective bargaining process "if 

the parties do not reach a settlement of the issue or issues in dispute by way of a 

written agreement within thirty days after collective bargaining proceedings have 

been initiated." Id. A request for arbitration must be made at least 110 days before 

the start of the fiscal year. Section 3 of Act 111. In addition, the police officers 

and firefighters must serve written notice of arbitration containing specifications of 

issues in dispute "upon the head of the governing body of the local governmental 

unit involved." Section 5 of Act 111, 43 P.S. § 217.5.

The trial court remanded the matter to Arbitrator Gifford, directing

him to amend the award to address whether the Borough raised the jurisdiction 

issue, whether the Union argued that the Borough waived the issue, any evidence 

presented by the parties to support their positions, and his decision on the issues. 

On remand, Arbitrator Gifford sent the trial court a letter, stating that the Borough 

raised the jurisdiction issue and that the Union claimed that the Borough waived 

the issue. He further stated that he was not permitted to discuss the arbitration 

panel's deliberations during the executive sessions. As to the evidence presented 

by the parties and the arbitration panel's decision on the issues, he referred the trial 

court "to the Award that includes dissenting and concurring opinions." R.R. at 

348a.

Because Arbitrator Gifford refused to clarify the record, the trial court 

held hearings to allow the parties to present the evidence presented at the 
6

arbitration hearing and to determine whether such evidence, if believed, would 

support the arbitration panel's jurisdiction to award wage increases for 2011. The 

Borough presented the testimony of Attorney Love and Ford, an arbitration packet,

and Attorney Love's June 16, 2011 letter reserving the Borough's right to raise 

procedural deficiencies. The Union presented the testimony of Andreozzi and two 

Union shop stewards, an arbitration presentation binder, and Ford's June 8, 2011 

memo proposing terms of a new CBA.

The trial court concluded that the arbitration panel did not have 

jurisdiction to address contract terms for 2011 due to the Union's failure to comply 

with the mandatory requirements of Act 111 for requesting an arbitration and that 

the Borough's attempts to negotiate a new CBA in good faith does not constitute a 

waiver of its procedural objection. The court found that the Union failed to serve 

written notice of arbitration containing specifications of issues in dispute upon the 

Borough Council president. The court further found that Andreozzi's June 8, 2011 

letter, stating the parties' agreement to use the list of arbitrators obtained in 

November 2010 to resolve the remaining issues, even if considered to be proper

written arbitration notice, was untimely for the fiscal year 2011 because it was 

dated 159 days after the beginning of the fiscal year 2011. The court accordingly 

granted the Borough's petition and vacated the arbitration award to the extent of

granting wage increases for 2011. The Union's appeal to this Court followed.

The Union argues that the Borough waived its objection to the Union's 

noncompliance with Act 111's requirements, relying on Ford's June 8, 2011 letter 

proposing terms of a new CBA. The Union asserts that the arbitration panel was 

aware of the Borough's objection to its jurisdiction and the Union's waiver claim 

and that "the only logical conclusion" to be drawn from the arbitration award is 
7

that the majority of the arbitration panel rejected the Borough's objection to its

jurisdiction. Union's Brief at 19. The Union further argues that if the arbitration 

panel did not decide the issues, the court should have remanded to the arbitration 

panel which retained jurisdiction until the parties' ratification and execution of the

new CBA. Finally, the Union claims that Act 111 prohibits the Borough from 

appealing the arbitration award.

The legislature enacted Act 111 to make the rights of a public 

employer and its police officers and firefighters more equitable by denying the 

police officers and firefighters the right to strike but granting them the right to 

collectively bargain terms and conditions of employment. Section 1 of Act 111, 43 

P.S. § 217.1; Town of McCandless v. McCandless Police Officers Ass'n, 901 A.2d 

991, 997 (Pa. 2006). Section 7(a) of Act 111, 43 P.S. § 217.7(a), provides that the 

determination of the majority of the arbitration panel "shall be final on the issue or 

issues in dispute and shall be binding upon the public employer and the policemen 

or firemen involved" and that "[n]o appeal therefrom shall be allowed to any 

court." An arbitration award is nonetheless subject to the court's narrow certiorari 

scope of review. City of Phila. v. Int'l Ass'n of Firefighters, Local 22, 999 A.2d 

555, 563 (Pa. 2010). Under such review, the court may inquire into only (1) the 

arbitrator's jurisdiction, (2) the regularity of the proceedings, (3) an excess of the 

arbitrator's powers, and (4) deprivation of constitutional rights. City of Pittsburgh 

v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 938 A.2d 225, 229 (Pa. 2007).4 

Such limited review of arbitration awards "embodies a balancing of the legislative 

 

4 Unlike the "narrow" certiorari review, the "broad" certiorari review permits review of the 

entire arbitration panel's record, including testimony and evidence. Town of McCandless, 901

A.2d at 995 n.8.
8

policy objective of shielding arbitration awards from judicial modification, with 

the residual need to avoid giving arbitrators unlimited powers." Dep't of Corr. v. 

Pa. State Corr. Officers Ass'n, 12 A.3d 346, 355 (Pa. 2011). 

A preliminary determination of whether the issue involved implicates 

one of the four areas encompassed by narrow certiorari is subject to the court's 

non-deferential, plenary standard of review, unless that determination itself 

depends, to some extent, upon arbitral fact-finding or a construction of the relevant 

CBA. Town of McCandless, 901 A.2d at 1000; City of York v. Int'l Ass'n of 

Firefighters, Local Union No. 627, 35 A.3d 822, 825 (Pa. Cmwlth. 2011). 

Subject matter jurisdiction is "a prerequisite to the exercise of the 

power to decide a controversy." Pickford v. Pub. Util. Comm'n, 4 A.3d 707, 713 

(Pa. Cmwlth. 2010). The inquiry posed by the jurisdiction prong of narrow 

certiorari is whether an arbitration panel "act[ed] in that general class of 

controversies that the law empowers it to consider." Int'l Ass'n of Firefighters, 

Local 22, 999 A.2d at 564 [citing Dauphin Deposit Trust Co. v. Myers, 130 A.2d 

686, 694 (Pa. 1957)]. To determine whether an arbitration panel had subject 

matter jurisdiction to render an award, the court looks to the Pennsylvania 

Constitution and the enabling statute, Act 111, that created an arbitration panel.

Int'l Ass'n of Firefighters, Local 22, 999 A.2d at 564.

Article 3, Section 31 of the Pennsylvania Constitution, Pa. CONST. art 

III, § 31, authorizes the General Assembly to "enact laws which provide that the 

findings of panels or commissions, selected and acting in accordance with law for 

the adjustment or settlement of grievances or disputes or for collective bargaining 

between policemen and firemen and their public employers shall be binding upon 

all parties ...." [Emphasis added.] The phrase "in accordance with law" in Article 
9

3, Section 31 "means that the arbitrators, in conducting their hearings and making 

an award ... must adhere to the mandates of the enabling legislation." City of 

Washington v. Police Dep't of Washington, 259 A.2d 437, 442 (Pa. 1969). 

In granting police officers and firefighters the right to collective 

bargaining and creating an arbitration panel to resolve issues in dispute, Act 111 

establishes "strict timetables" and prerequisites for collective bargaining, for an

arbitration request, and for a legislative action necessary to implement an 

arbitration award. Pa. State Park Officers Ass'n v. Pa. Labor Relations Bd., 854 

A.2d 674, 682 (Pa. Cmwlth. 2004). Collective bargaining must begin at least 6 

months before the start of the next fiscal year. Section 3 of Act 111. If an impasse 

has been reached after negotiating for at least 30 days, either party may request an 

appointment of an arbitration panel after providing the other party written notice 

containing specifications of issues in dispute. Section 4(a) of Act 111. A request 

for arbitration must be made at least 110 days before the next fiscal year. Section 3

of Act 111. In addition, the police officers and firefighters must serve written 

notice of arbitration upon the head of the local governing body. Section 5 of Act 

111. Any legislation necessary to implement an arbitration award must be enacted 

within one month after publication of the award to be effective the first day of the 

fiscal year following the fiscal year during which such legislation was enacted. 

Section 7(b) of Act 111. 

Under Act 111, time is of the essence in collective bargaining. Int'l 

Ass'n of Firefighters, Local 463 v. City of Johnstown, 344 A.2d 754, 755 (Pa. 

Cmwlth. 1975), rev'd on other grounds, 360 A.2d 197 (Pa. 1976). The time 

schedules in Act 111 are "keyed to the public employer's next fiscal year" in order 

to provide the local governing body sufficient time "to prepare an appropriate 
10

budget and to enact the necessary implementing legislation before the beginning of 

the new fiscal year." Id. Compliance with the time requirements of Act 111, 

therefore, "is mandatory." Int'l Ass'n of Firefighters, Local 463 v. City of 

Johnstown, 360 A.2d 197, 198 (Pa. 1976). The parties must strictly adhere to the 

bargaining schedules in Sections 3 and 4 of Act 111 "in order to perfect the right to 

arbitration." Delaware Cnty. Lodge #27, Fraternal Order of Police v. Pa. Labor 

Relations Bd., 461 A.2d 1337, 1340 (Pa. Cmwlth. 1983). 

Further, the requirement in Section 4(a) of Act 111 that a party 

requesting an arbitration must provide the other party written notice containing 

specifications of issues, "is a codification of the longstanding common law rule 

that arbitrators must decide all the issues presented to them, and only those issues."

In re Arbitration Award between Lower Yoder Twp. Police & Lower Yoder Twp., 

654 A.2d 651, 653 (Pa. Cmwlth. 1995) (emphasis added). An interest arbitration 

can be triggered only by a party giving the other party written notice of arbitration. 

Id. An interest arbitration award can embrace only the issues which the party 

requesting an arbitration has specified in the written notice of arbitration. Id. 

The undisputed evidence established that the Borough and the Union 

began collective bargaining on June 14, 2010, more than six months before the 

start of the fiscal year 2011. The Union, however, failed to comply with Section 

4(a) of Act 111 by seeking a list of arbitrators on June 29, 2010 without bargaining

with the Borough for at least 30 days, without declaring an impasse, and without 

listing any issues in dispute. In addition, the Union never served upon the Borough 

Council president written notice of arbitration containing specifications of issues in 

dispute, as required by Section 5 of Act 111. The Union did not properly demand 

an arbitration 110 days before the beginning of the fiscal year 2011, September 12, 
11

2010, as required by Section 3 of Act 111. Andreozzi's June 8, 2011 letter, stating 

that the parties agreed to resolve the remaining issues by arbitration, cannot 

constitute proper written notice of arbitration for the fiscal year 2011 because it 

was dated more than 5 months after the start of the fiscal year 2011.

Because the Union failed to timely provide written notice of 

arbitration containing specifications of issues in dispute to the Borough and serve it 

upon the Borough Council president, the arbitration panel lacked jurisdiction to 

award the Borough police officers wage increases for the fiscal year 2011.5See 

City of Phila. v. Fraternal Order of Police, Lodge No. 5, 768 A.2d 291, 296 (Pa. 

2001) (holding that the arbitrator was without jurisdiction to consider an issue 

which was not included in the written notice of arbitration and was added on the 

first day of the arbitration hearing); Plymouth Twp. Police Dep't v. Plymouth Twp. 

Comm'rs, 366 A.2d 316, 318 (Pa. Cmwlth. 1976) (holding that the township could 

not be compelled to submit the disputes to binding arbitration because collective 

bargaining did not begin at least six months before the start of the new fiscal year 

and because the demand for binding arbitration was not made at least 110 days 

before the start of the new fiscal year).

6

 

5

In light of Arbitrator Gifford's refusal on remand to clarify the record and to indicate the 

majority arbitration panel's decision on the jurisdiction issue, it would have been futile for the 

trial court to re-remand to the arbitration panel for a determination of the issue. Even if we 

accept the Union's position that the majority of the arbitration panel decided the jurisdiction issue 

by rendering the arbitration award, the evidence does not support the arbitration panel's 

jurisdiction. 

6

The Supreme Court previously excused a union's failure to comply with the mandatory 

timetables in Sections 3 and 4(a) of Act 111, finding that the city's "dilatory procedure" in 

scheduling collective bargaining sessions prevented the union from complying with the 

timetables. Int'l Ass'n of Firefighters, Local 463, 360 A.2d at 198. Here, the Union does not 

allege, and the record does not demonstrate, that the Union's failure to comply with the 

requirements in Act 111 was caused by dilatory action of the Borough.
12

Without disputing its failure to comply with the requirements of Act 

111 in demanding an arbitration, the Union argues that the Borough waived its 

objection to the arbitration panel's jurisdiction, relying on the Borough manager's 

June 8, 2011 letter proposing terms of a new CBA. The parties' good-faith 

negotiations, however, are irrelevant to the issue of the arbitration panel's subject 

matter jurisdiction. Arbitration Award between Lower Yoder Twp. Police & Lower 

Yoder Twp., 654 A.2d at 654. It is well established that "[t]he issue of subjectmatter jurisdiction cannot be waived and may be raised at any time by the parties 

or by the court sua sponte." Hous. Auth. of Pittsburgh v. Van Osdol, 40 A.3d 209, 

213 (Pa. Cmwlth. 2012).7 

In conclusion, the evidence established the Union's noncompliance 

with the mandatory requirements of Act 111, thereby depriving the arbitration 

panel of subject matter jurisdiction to award the Borough police officers wage 

increases for 2011. Accordingly, the trial court's order is affirmed. 

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge

 

7 Unlike subject matter jurisdiction, personal jurisdiction may be waived for failure to object 

thereto. Wagner v. Wagner, 768 A.2d 1112, 1119 (Pa. 2001); Tracy v. Unemployment Comp. 

Bd. of Review, 23 A.3d 612, 616 n.3 (Pa. Cmwlth. 2011).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Gettysburg :

 :

v. : No. 1768 C.D. 2013

 :

Teamsters Local No. 776 :

 :

Appeal of: International Brotherhood :

of Teamsters, Local 776 :

O R D E R

AND NOW, this 29th day of October, 2014, the order of the Court of 

Common Pleas of Adams County in the above-captioned matter is AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge