IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of State College, :

Appellant :

:

v. : No. 696 C.D. 2022

:

Borough of State College : Argued: September 11, 2023

Police Association :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY 

JUDGE McCULLOUGH FILED: October 6, 2023

The Borough of State College (Borough) appeals from the May 26, 2022 

order of the Court of Common Pleas of Centre County (trial court), which denied the 

Borough’s petition to vacate a grievance arbitration award it had filed against the 

Borough of State College Police Association (Association). Upon review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 2020, Officer Joseph Scharf (Grievant) was terminated 

from the Borough Police Department (Department) after an investigation of three 

internally generated complaints regarding Grievant’s performance. (Reproduced 

Record (R.R.) at 740a.) The first incident occurred on June 14, 2020, after Grievant

drove at a speed of 87 miles-per-hour (mph) in a 25-mph zone and passed a civilian 

vehicle at a speed 72 mph while in pursuit of a motorist who had been exceeding the 

speed limit and did not even realize that a police officer had been attempting to catch 

up to him. Id. at 657a-60a. The second incident occurred on June 23, 2020, after 
2

Grievant failed to report a high-speed vehicle pursuit until three days afterwards despite 

being advised to make a timely report by two different detectives. Id. at 832a. The

third incident occurred on July 12, 2020, after Grievant, while on patrol on a bicycle, 

unlawfully and improperly deployed pepper spray into the driver’s side window of a 

motorist’s moving vehicle during what should have been a routine traffic stop for a 

headlight violation. Id. at 744a.

The Department’s internal affairs policy (Regulation) establishes an 

internal affairs board, referred to as the Conduct and Procedures Review Board 

(Review Board), under the authority of the Police Chief.

1

 Id. at 1144a, 1150a. Three 

separate internal affairs files were opened for the July 2020 pepper spray incident and 

the two June 2020 driving incidents. The Review Board investigated the June 23, 2020 

pursuit pursuant to Section 2.3.1.05.4 of the Regulation,

2

and concluded that Grievant

1 The Review Board has the power to review incidents, including making findings of fact, and 

has the power to recommend disciplinary action. (R.R. at 1150a.) The Review Board is composed

of four officers of different ranks (fellow Police Union members) and a Division Commander who 

serves as a non-voting chairperson. Id. at 184a-87a, 1150a.

2 Section 2.3.1.05.4 of the Regulation sets forth that the Review Board shall summarize the 

evidence reviewed and forward a recommendation of action to the Chief of Police:

At the conclusion of the conduct review, the Conduct and Procedures 

Review Board, in writing, shall summarize the evidence, make findings 

of fact based on the evidence, and forward such to the Chief of Police 

with a recommendation for action. The involved officer shall be 

provided a copy of this memorandum. The recommendation should 

include the following information: 

A. The particular rule or rules alleged to have been 

violated.

B. The dates and the places the alleged acts or omissions 

occurred.

C. A statement of the alleged acts or omissions.

(Footnote continued on next page...)
3

violated five Department policies: (1) Unsatisfactory Performance, (2) Department 

Reports, (3) Completion of Reports, (4) Pursuit Officer Responsibilities, and (5) 

Submission of Reports. The Review Board reviewed Grievant’s use of pepper spray 

and determined that it was unjustified and in violation of three Department policies: 

(1) Use of Force, (2) Authorized Use of Force Options and Their Appropriate 

Application, and (3) Use of Authorized Less Lethal Weapons-Oleoresin Capsicum. 

The Review Board investigated the June 14, 2020 high speed chase and concluded that 

Grievant violated two Department policies: (1) Emergency Vehicle Driving, and (2) 

Unsatisfactory Performance. Based on its findings, the Review Board recommended a 

five-day suspension and a written reprimand. Id. at 224a-25a, 745a-46a, 799a, 833a35a, 906a-12a. Pursuant to Section 2.3.1.06.3 of the Regulation,

3

the Review Board 

forwarded its findings and recommendation to the Police Chief. 

The Police Chief, John Gardner, reviewed the Review Board’s findings, 

report, and recommendation. As for the June 14, 2020 high-speed chase, in addition 

to the policies the Review Board found were violated, Chief Gardner concluded that 

D. The recommended disciplinary or nondisciplinary 

action which can include a SIL [(specific incident log)] 

entry, written warning, counseling, training, written 

reprimand, suspension, demotion, or termination.

3 Section 2.3.1.06.3 of the Regulation provides that the Chief of Police may then do one of 

three things:

A. sustain the charge(s) and impose the recommended corrective or 

disciplinary action. Disciplinary action by the Chief of Police may be 

up to and including a written reprimand. In disciplinary actions that 

involve suspension, demotion, or termination, the Chief of Police will 

make a recommendation to the Borough Manager in writing. The 

Manager will, after his review, make a decision on the incident;

B. modify the recommended action; or

C. exonerate the charged officer.
4

Grievant also violated three additional policies: (1) Department Reports, (2) 

Completion of Reports, and (3) Submission of Reports. As for the June 23, 2020 

pursuit, Chief Gardner concluded that Grievant violated two additional policies that 

the Review Board did not find were violated: (1) Motor Vehicle Pursuit Procedure and 

(2) Initiation & Continuation of Pursuit. (R.R. at 592a-95a.) Chief Gardner also 

considered two prior incidents involving Grievant, including a 2018 Performance 

Improvement Plan and a 2018 Written Warning. Id. at 596a-97a. Chief Gardner 

additionally considered the following history of Grievant’s prior corrective actions:

May 8, 2017 – [Grievant] was issued a corrective SIL

documenting a highly unprofessional Interaction with [a 

Doctor] at Mount Nittany Medical Center. His actions and 

demeanor toward the Doctor were disrespectful, 

unprofessional, and unacceptable. In retrospect, this Incident 

should have resulted in an Internal Affairs Investigation, 

however it was hoped that corrective action at the patrol level 

would resolve and rectify the issues.

December 1, 2018 – [Grievant] was placed on a Performance 

Improvement Plan (PIP) due to performance challenges 

focusing on: Criminal Law and Ordinances, Department 

Policies and Procedures, Field Operations/Tactical & 

Procedural, Investigative Skills, and Written 

Communications.

[Grievant] was issued a SIL dated November 11, 2018, that 

became the impetus for the (PIP) and addressed [Grievant’s]

improper search of three (3) males following a lawful traffic 

stop and his subsequent incomplete written reporting of the 

Incident, [Grievant] searched the males without consent and 

without probable cause. Case law and [D]epartment policy 

were not followed, and these searches were outside those 

parameters. He also submitted a report that lacked sufficient 

detail to identify all persons present, the probable cause for 

the searches, a description and location of evidence in the 
5

vehicle and whether any of the occupants were arrested. The 

(PIP) was in effect from December 1, 2018, through April 

30, 2019. 

February 27, 2020 – [Grievant] was issued a corrective SIL 

by Sergeant Foster for leaving a female DUI defendant 

unattended in the field to engage in a profanity laden 

argument with the defendant’s husband. It was noted that 

[Grievant’s] actions were unnecessary and created a safety 

risk for himself, fellow officers, and the public.

Id. at 1042a-46a.

Chief Gardner recommended to the Borough Manager, Thomas 

Fountaine, that Grievant’s employment with the Department be terminated.4 Chief 

Gardner explained his reasoning as follows:

Given the severity of the sustained violations and the 

continuing pattern of behavior exhibited by [Grievant], I 

cannot agree with this recommendation. I do not believe the 

[Review] Board’s recommended discipline will prove 

effective in bringing about the positive change in 

performance and behavior that is required.

In the three (3) current Internal Affairs incidents, [Grievant]

had fifteen (15) policy charges sustained as Improper 

Conduct. He has two (2) additional sustained policy charges 

as Improper Conduct from a prior internal investigation. As 

of this date, [Grievant] will have seventeen (17) total policy 

charges sustained as Improper Conduct.

* * *

He has been issued several corrective action SILs to address 

performance issues and was placed on a Performance 

4

In cases that involve suspension, demotion, or termination, the Police Chief makes a written 

recommendation to the Borough Manager, who is the final decision-maker pursuant to Section 

2.3.1.06.3(A) of the Regulation. (R.R. at 1152a.) 
6

Improvement Plan (PIP) from December 1, 2018 through 

April 30, 2019 to address many of the same issues expressed 

in the current investigations. . . . All previous efforts to 

address [Grievant’s] performance issues in a progressive 

manner, have failed to elicit the desired or required changes 

sought.

Based on the aforementioned information, it is my 

recommendation that [Grievant’s] employment with the []

Department be terminated.

Id. at 1045a-46a.

Borough Manager Fountaine reviewed Chief Gardner’s recommendation 

and determined that Grievant’s use of pepper spray at a moving motorist, standing 

alone or in combination with the other incidents, warranted his termination of 

employment. Id. at 738a-40a. On December 3, 2021, Borough Manager Fountaine

notified Grievant of his termination.

On December 4, 2020, Grievant filed a grievance, pursuant to Article VIII 

of the parties’ collective bargaining agreement (CBA), which began at Step 4 because

the matter was one processed by Internal Affairs. Id. at 1204a. On December 17, 2020, 

the Step 4 meeting was held, and the grievance was denied by letter dated December 

21, 2020. Id. at 1206a. Arbitration was requested on January 14, 2021, and proceeded 

before an Arbitrator. 

The parties stipulated that the issue to be determined by the Arbitrator was 

whether Grievant was terminated for just cause. Id. at 21a. Both parties presented 

multiple witnesses and the Arbitrator heard testimony over three days. The Borough 

argued that Grievant’s termination was for just cause because his actions were far 

below the standards set for proper policing. In the Borough’s estimation, the pepper 

spray incident, together with the other offenses which also endangered public safety, 

warranted dismissal. The Borough argued that Grievant’s conduct evidenced a 
7

persistent tendency to act on his own, disregard of police rules and training, proceeding 

on his own conjecture, and an inflated sense of urgency, regardless of better judgment 

and public safety. It asserted that termination is the only remedy for his conduct.

The Association argued that the Regulation, setting forth the 

Department’s Internal Affairs policies, once promulgated by the Borough, became part 

of the CBA process. Citing Section 2.3.1.06.3 of the Regulation, the Association 

argued that the Borough failed to follow its own internal affairs policy because Chief 

Gardner considered the totality of everything in making his recommendation for 

termination. It asserted that, meanwhile, the Review Board had reviewed only the July 

2020 pepper spray incident, and the June 14, 2020 and June 23, 2020 driving incidents, 

in identifying the violations and recommending that Grievant be subjected to a fiveday suspension without pay. The Association argued that by finding other violations 

that had been rejected by the Review Board and “overruling” the conclusions of the 

Review Board, Chief Gardner violated Section 2.3.1.06.3 of the Borough’s Regulation, 

which allows the Police Chief only to “sustain the charge(s) and impose the 

recommended corrective or disciplinary action,” “modify the recommended action” or 

“exonerate” the officer. Furthermore, the Association asserted that, contrary to Chief 

Gardner’s rationale for terminating Grievant, SILs cannot be cited as disciplinary 

history to support a termination. The Association argued that strict adherence to 

disciplinary rules is an essential part of due process, and when the employer fails in 

this regard, it violates the due process component of just cause. 

The Arbitrator issued her Arbitration Award on November 5, 2021, 

sustaining the grievance. The Arbitrator concluded that “the addition of [violations] 

that had not been part of the [Review] Board’s deliberation ran counter to the 

Regulation[].” (Arbitration Award at 20.) She reasoned that “the additional matters 
8

Chief Gardner brought up and passed on to Borough Manager Fountaine, with one 

exception, were not prior discipline and could not have been contested or grieved. As 

a result, [violations] that had not been adjudicated by the [Review] Board were added 

to the statement of charges for which [] Grievant was terminated.” Id. at 18. The 

Arbitrator found that “for due process to prevail, alleging violations that were not or 

could not have been adjudicated by the [Review] Board cannot be justified.” Id. 

Accordingly, the Arbitrator concluded that “Grievant’s termination was not supported 

by just cause.” Id. The Arbitrator sustained Grievant’s grievance, rescinded his 

termination, ordered that he shall receive a five-day suspension, and ordered that as a 

condition of his reinstatement, Grievant must undergo “rigorous retraining” to curb 

“his rogue, lone wolf tendencies.” Id. at 20. The Arbitrator further conditioned 

Grievant’s reinstatement on a “last chance agreement,” warning that “any repetition of 

the conduct and violations seen in this case shall result in his immediate termination 

without recourse to the grievance procedure or arbitration.” Id.

On December 3, 2021, the Borough filed a petition to vacate the 

Arbitration Award with the trial court, arguing that the Arbitrator went outside of the 

CBA in concluding that, under the Regulation, the Police Chief may modify the level 

of discipline recommended by the Review Board but not deviate in any respect with 

the Review Board’s conclusions. The Borough further argued that the Arbitration 

Award violates public policy that a police department is not obligated to employ a 

police officer who engages in gross misuse of police authority, and that the Arbitration 

Award impairs the Borough’s ability to carry out its government function of providing 

safe and reliable police services to the community. (R.R. at 14a-15a.) 

On May 26, 2022, the trial court issued an order affirming the Arbitration 

Award. Utilizing the narrow certiorari scope of review, the trial court rejected the 
9

Borough’s argument that the Arbitrator acted outside of her jurisdiction. The trial court 

held that the Arbitrator acted within her jurisdiction when she applied and interpretated 

the Regulation that was incorporated into the CBA and concluded that the Borough did 

not have just cause to terminate Grievant because it violated its own Regulation in 

deciding to terminate him. The trial court rejected the Borough’s contention that the 

Arbitrator ordered the Borough to commit an unlawful act by reinstating Grievant. 

Finally, the trial court opined that, although the mandatory reinstatement of a police 

officer found to be a danger to public safety and a threat to the citizens of Pennsylvania

is “certainly repugnant to public policy,” it nevertheless noted that it was “constrained 

to follow the Pennsylvania Supreme Court’s determination that such a result is in fact 

the intention of the legislature.” (Trial Ct. Op., May 26, 2022, at 4-6.)

ISSUES

On appeal, the Borough raises the following four issues:

1. Whether the Arbitrator exceeded her powers and jurisdiction 

by failing to confine her opinion to the issue submitted to her 

for decision.

2. Whether the Arbitrator exceeded her powers and jurisdiction 

by infringing on the Borough’s managerial prerogative to 

direct its workforce.

3. Whether the Arbitrator exceeded her powers by ordering the 

Borough to carry out an unlawful act.

4. Whether the Arbitration Award should be vacated because 

reinstatement of the police officer to employment with the 

Borough is repugnant to well-defined, dominant public 

policy. 

(Borough’s Br. at 5-6.)
10

DISCUSSION

The CBA between the Borough and the Association was covered by the 

Policemen and Firemen Collective Bargaining Act, commonly referred to as Act 111 

(Act 111).

5

 This Court recently stated and summarized the narrow certiorari scope of 

review as follows:

In Act 111 cases, our scope of review is limited to “narrow 

certiorari,” which allows inquiry only into: (1) the 

jurisdiction of the arbitrator; (2) the regularity of the 

proceedings; (3) whether the arbitrator exceeded his powers; 

or (4) the deprivation of constitutional rights. Pennsylvania 

State Police v. Pennsylvania State Troopers’ Association 

(Betancourt), 656 A.2d 83, 90 (Pa. 1995). If an arbitration 

award cannot be vacated on one of these bases, then it must 

be upheld. Id. A mere error of law is insufficient to support a 

court’s decision to reverse an Act 111 arbitrator’s award. 

Appeal of Upper Providence Police Delaware County Lodge 

#27 Fraternal Order of Police, 526 A.2d 31[5], 322 (Pa. 

1987).

Uwchlan Township, Pennsylvania v. Uwchlan Township Police Association (Uwchlan 

Township) (Pa. Cmwlth., No. 259 C.D. 2020, filed October 9, 2020), slip op. at 4.

6

Further, as long as an arbitrator’s award concerns terms and conditions of 

employment and does not require performance of an illegal act, or one that a party 

could not do voluntarily, the “authority” prong of narrow certiorari is “generally met.” 

City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 224 A.3d 702, 

712 (Pa. 2020). An argument that an arbitrator misinterpreted a CBA is not within the 

confines of the narrow certiorari review. Id. at 713. This Court’s scope of review is a 

5 Act of June 24, 1968, P.L. 237, No. 111, as amended, 43 P.S. §§ 217.1-217.12.

6

See Pa.R.A.P. 126(b)(1)-(2) (“As used in this rule, ‘non-precedential decision’ refers to . . . 

an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. [ ] 

Non-precedential decisions . . . may be cited for their persuasive value.”).
11

“plenary, non-deferential standard where the resolution of the issues turns on a question 

of law or application of law to undisputed facts.” City of Philadelphia v. Fraternal 

Order of Police Lodge No. 5, 932 A.2d 274, 279 n.6 (Pa. Cmwlth. 2007).

1.

In its first issue, the Borough argues that the Arbitrator acted outside her 

jurisdiction by failing to confine her opinion to the issue submitted to her for decision, 

which was whether the Borough discharged Grievant for “just cause” under the parties’ 

CBA. (R.R. at 166a.) The Borough contends that the Arbitrator found that Grievant’s 

conduct warranted discharge but then went outside of the CBA to reinstate his 

employment under her interpretation of the Department’s Regulation. Specifically, she 

concluded that under the Regulation, the Police Chief may modify the level of 

discipline recommended by the Review Board but may not deviate in any other respect 

from the Review Board. The Borough submits this was error because in suspension or 

termination cases, the Review Board is not the final decision-maker and there is nothing 

in the Regulation requiring the Police Chief to exactly mirror the conclusions and 

considerations of the Review Board. (R.R. at 1152a.) It contends that the Arbitrator 

acted outside her jurisdiction by attempting to bestow such final decision-making 

authority on the Review Board, and thus limiting the authority of the Police Chief and 

Borough Manager under the Regulation, through her interpretation thereof. The 

Borough argues that by basing her decision on the Regulation, rather than on “just 

cause” under the CBA, the Arbitrator exceeded her jurisdiction. 

An arbitrator exceeds her jurisdiction when she addresses issues not 

properly submitted to her. City of Philadelphia v. Fraternal Order of Police, Lodge 

No. 5, 181 A.3d 485 (Pa. Cmwlth. 2018). An arbitrator thus may not modify the terms 

of an existing collective bargaining agreement. See Marple Township v. Delaware 
12

County F.O.P. Lodge 27, 660 A.2d 211, 215 (Pa. Cmwlth. 1995) (“Arbitrators are 

required to address the issues submitted within the context of the positions of the parties 

and effectuate the relief requested, not to reform the collective bargaining 

agreements.”). However, an arbitrator has wide latitude to address any issues that are 

properly submitted to her, and “may speak to an issue if it is reasonably subsumed 

within the issues properly before the arbitration panel.” Michael G. Lutz Lodge No. 5, 

of Fraternal Order of Police v. City of Philadelphia, 129 A.3d 1221, 1231 (Pa. 2015).

Here, the issue before the Arbitrator, as stipulated to by the parties, was 

whether Grievant was terminated for just cause. While the Borough is correct that an 

arbitrator does not have the power to rewrite the CBA by creating a new procedural 

policy, an arbitrator necessarily must have the ability to interpret the CBA in order to 

determine the rights and powers of the parties involved. Here, the CBA grants 

jurisdiction to an arbitrator to determine whether the discharge of a police officer is 

justified under the just cause standard. Article XXX of the CBA states:

The [Borough] shall not suspend, demote, or discharge 

without just cause. If an employee alleges that the 

disciplinary action was without just cause, he may elect to 

appeal . . . through the grievance procedure commencing 

with the third step and including arbitration.

(R.R. at 1368a.) 

Further, in the CBA, the Borough specifically agreed that it would comply 

with its own Regulation in the administration of all matters covered by the CBA. 

Article IV, Section B of the CBA provides, in this regard: “In the administration of all 

matters covered by this agreement, the parties are all governed by provisions of existing 

. . . [R]egulations.” Id. at 1346a. In effect, the CBA authorizes the Arbitrator to 

determine whether the Borough complied with its Regulation. To that end, the 

Arbitrator interpreted the pertinent Regulation and found that the addition of extra 
13

charges that were not part of the Review Board’s deliberation ran counter to the 

Regulation. (Arbitration Award, at 20.) Thus, she concluded, in response to the 

stipulated question posed to her, that “Grievant’s termination was not supported by just 

cause.” Id. The determination that the Borough did not comply with its own 

Regulation amounted to her interpretation of the CBA because the CBA incorporated

that Regulation into CBA. Pennsylvania Department of General Services v. Fraternal 

Order of Police #85, Capitol Police, 684 A.2d 219 (Pa. Cmwlth. 1996). As such, it 

was the Arbitrator’s interpretation to make. Id. See also Uwchlan Township (propriety 

of an arbitrator’s interpretation of disciplinary regulations incorporated into contract 

was beyond narrow certiorari scope of review).

Whether just cause exists is a matter of contractual interpretation. 

Because the issue of whether the additional charges the Police Chief cited as reasons 

for discharge were properly before the Review Board is related to the issue of just 

cause, the Arbitrator was permitted to consider and interpret what actions the Police 

Chief was entitled to undertake under the Regulation and CBA. Therefore, we must 

find that the Arbitrator did not act beyond her jurisdiction. 

2.

In its second issue, the Borough contends that by directing the level of 

“retraining” needed for a “rogue” officer to return to work, the Arbitrator exceeded her 

powers and jurisdiction by infringing on the Borough’s managerial prerogative to direct 

its workforce. It asserts that Article III (Management Responsibilities) of the parties’ 

CBA vests the Borough with the managerial right to establish and maintain “standards 

of quality and performance.” (R.R. at 1345a.) It argues that the Arbitration Award 

infringes on the Borough’s managerial rights by imposing a vague “retraining” 
14

standard, fraught with risk, as a condition for Grievant performing his statutorilydefined job duties. 

We find the issue to be without merit. First, the cases cited by the Borough 

all involve interest arbitration, not Act 111 grievance arbitration. Second, the Borough 

also does not point to any established managerial prerogative that conflicted with the 

Arbitrator’s reinstatement of Grievant on the condition that he undergo further rigorous 

training. It would seem that the Arbitrator’s Award requiring “rigorous” training was 

consistent with the Borough’s interests and in any event, it completely left to the 

Borough to decide what the rigorous training would entail. Thus, we find that there 

was no infringement upon the Borough’s managerial prerogative that rendered the 

Arbitrator’s Award beyond her jurisdiction. 

3.

In its third issue, the Borough argues that the Arbitrator exceeded her 

powers by ordering the Borough to carry out an unlawful act, namely, employing a

police officer that cannot unconditionally carry out his statutorily-defined job duties. 

(Borough’s Br. at 46-47.)

An arbitrator under Act 111 exceeds her authority (1) by ordering either 

of the parties to the dispute to commit an illegal act, or (2) by ruling on a matter which 

is not a mandatory subject of bargaining under Act 111. City of Pittsburgh v. Fraternal 

Order of Police, Fort Pitt Lodge No. 1, 938 A.2d 225 (Pa. 2007). Conversely, an 

arbitrator does not exceed her authority by ordering either party to commit an act which 

it could legally and voluntarily perform, or by ruling on a matter that is a mandatory 

subject of bargaining under Act 111. Appeal of Upper Providence. Errors of law are 

unreviewable by a court if the determinations themselves do not exceed the authority 
15

of the arbitrator. Pennsylvania State Police v. Pennsylvania State Troopers Association

(Smith & Johnson), 741 A.2d 1248, 1252 (Pa. 1999) (Smith & Johnson). 

The discharge and reinstatement of police officers are mandatory subjects 

of bargaining under Act 111. Moreover, Grievant was reinstated subject to a written 

reprimand, a five-day suspension without pay, further training, and a last chance 

agreement. The reinstatement of Grievant with these conditions is something the 

Borough could have done voluntarily. There is no law that would prohibit the Borough 

from reinstating Grievant on the condition that he undergo rigorous training and with 

a last chance agreement if the Borough wished to do so. The Arbitration Award does 

not, in any way, require the Borough to do something that it could not have legally 

done on its own. Therefore, we are constrained to find that the Arbitration Award did 

not exceed the Arbitrator’s authority. 

4.

In its final issue, the Borough asserts that the Arbitration Award should 

be vacated because reinstatement of Grievant to employment with the Borough is 

repugnant to well-defined, dominant public policy.

The Pennsylvania Supreme Court rejected that contention in Smith & 

Johnson, explaining as follows:

Broadening the narrow certiorari scope of review to include 

a provision which would allow the courts to interfere with an 

arbitrator’s award whenever that award could be deemed to 

be violative of “public policy” - however that nebulous 

concept may be defined by a particular appellate court -

would greatly expand the scope of review in these matters. If 

we were to adopt [the appellant’s] recommendation to 

include this ill-defined term within the narrow certiorari 

scope of review, we would markedly increase the judiciary’s 

role in Act 111 arbitration awards. This would undercut the 
16

legislature’s intent of preventing protracted litigation in this 

arena.

741 A.2d at 1252-53. We are bound by this Supreme Court precedent. Accordingly, 

the standard of review for Act 111 cases does not encompass, and this Court cannot 

expand it to include, a public policy exception under the excess powers prong of narrow 

certiorari. See also Borough of Gettysburg v. International Brotherhood of Teamsters, 

Local 776, 233 A.3d 1002 (Pa. Cmwlth. 2020) (on judicial review of an arbitration 

award arising under Act 111, there is no public policy exception under the excess

powers prong of narrow certiorari). 

For all the above reasons, the trial court’s order is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge

President Judge Cohn Jubelirer did not participate in this decision. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of State College, :

Appellant :

:

v. : No. 696 C.D. 2022

:

Borough of State College :

Police Association :

ORDER

AND NOW, this 6th day of October, 2023, the May 26, 2022 order of 

the Court of Common Pleas of Centre County is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge