IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny, Pennsylvania, :

Appellant :

:

v. :

:

Allegheny Court Association of : No. 951 C.D. 2015

Professional Employees : Argued: April 12, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

SENIOR JUDGE PELLEGRINI FILED: May 2, 2016

Allegheny County, Pennsylvania (County) appeals from an order of the 

Allegheny County Court of Common Pleas (trial court) upholding an arbitration 

award which found a grievance filed by the Allegheny Court Association of 

Professional Employees (Association) timely under the parties’ collective bargaining 

agreement and sustained the grievance on its merits. For the reasons that follow, we 

affirm.

I.

A.

The County and the Association1entered into a collective bargaining 

agreement (CBA) effective January 1, 2011, through December 31, 2013. Article 

VIII of the CBA contained a “me too” provision that allowed the County to provide 

 

1

The Association is comprised of between 331-340 probation officers who were appointed 

by the Allegheny County Court system.
2

different health care coverage if 75% of the unionized and 100% of the nonunionized employees were covered by the plan. Section 3(H) of that Article 

regarding “Cost Containment” provided that:

It is specifically understood that during the term of this 

Agreement, the County shall have the right to institute, 

delete or modify the full range of wellness and all cost 

containment measures in hospitalization, surgical, major 

medical, and dental coverage. The program shall be at no 

additional cost to employees (other than the participation 

arrangements set forth herein) and benefits shall not be 

reduced. Effective January 1, 2011, each bargaining unit 

employee who receives hospitalization insurance shall 

contribute 2.0% of his or her base salary towards the 

premium. Longevity payments shall not be included in 

calculation of base salary for the purpose of premium 

contributions for hospitalization insurance. Contributions 

shall be made by paycheck deduction.

(Reproduced Record [R.R.] at 84a) (emphasis added).

Article III, Section 3(A) of the CBA set forth a grievance procedure

requiring that:

[a]ny alleged grievance shall be reduced to writing within 

seven (7) work days from the alleged occurrence of the 

grievance, or within seven (7) work days from the time the 

grievant reasonably should have known or been aware of 

the existence of the situation giving rise to the alleged 

grievance.

(Id. at 75a.) Section 4(A) also provided that the grievance “must be presented under 

the procedures of this Article promptly and within the prescribed time limitations.”

(Id. at 76a.)
3

In attempting to negotiate a successor agreement, the parties reached an 

impasse in July 2013 regarding the CBA to take effect January 1, 2014, and 

proceeded to arbitration on the issue before Arbitrator Lewis R. Amis (Arbitrator 

Amis). Just before the record closed, Assistant County Solicitor Diego Correa 

advised the Association via letter dated April 8, 2014, that the County intended to 

implement a new healthcare plan under the provisions of the existing CBA on the 

basis that 75% of unionized employees were transferred to the new healthcare 

program. As per the letter, the new healthcare plan provided the following payroll 

deductions: 2014—2.25%; 2015—2.25%; and 2016—2.5%. (Id. at 56a.) None of 

those increases were authorized in the CBA.

Arbitrator Amis issued an award dated May 6, 2014 (Award), effective 

from January 1, 2014, through December 31, 2017. The Award continued the prior 

CBA in large part, with certain changes to the applicable salary schedule, 

compensation plan, longevity schedule, insurance benefits and cost containment 

thereof, and sick leave. Significantly, with respect to insurance benefits, the Award 

stated:

Article VIII - Insurance Benefits

Section 1.A. Change the requirement that the County may 

provide new or different health insurance coverage if, “75 

percent of all other County unionized...employees are 

covered under the new plan,” to “50 percent of all other 

County unionized employees....”

***

Section 3.H. Cost Containment

Continue 2 percent contribution of base salary towards 

premium for hospitalization insurance for the life of this 
4

Agreement. Retain existing relevant conditions, rights, and 

restrictions contained in this section.

(Id. at 98a.) On June 20, 2014, after the successor CBA Award was handed down, 

the County implemented the increased payroll deductions referenced in Assistant 

County Solicitor Diego Correa’s April 8th letter.

On August 19, 2014, the Association’s President, Stephen Bechtold

(President Bechtold), advised William Graham, the Deputy Director of the Allegheny 

County Department of Human Services, that the payroll deductions should be limited 

to 2% for the life of the current CBA—that is, until December 31, 2017. The County 

disagreed, responding through its counsel that “the language limiting payroll 

deduction to 2% is subject to the ‘me too’ language providing that the County may 

change health care benefits if 50% of other County employees change their 

healthcare.” (Id. at 59a.) President Bechtold rejected this interpretation, explaining, 

“[t]he fact that the Arbiter singled out this issue separate from the language 

addressing changing the ‘me too’ language from 75% to 50% in the Award makes his 

intentions clear.” (Id.) In an August 21, 2014 e-mail, he stated that the Association’s 

counsel would be in contact with the County “not only [to] resolve this issue but to 

also complete the incorporation of the Award language into the current contract for 

printing and distribution.” (Id.)

Counsel for the Association stated the following in an e-mail dated 

September 16, 2014:

I am disappointed with the County’s position on this 

issue. Certainly the award provision is not just superfluous 

verbiage. Since the County has entered a definitive 

position, but this is a continuing matter, there would be no 
5

time limitation on filing and prosecuting a grievance up 

through an arbitration award. It would seem to be an 

unnecessary process when we could submit the matter to 

the Arbitrator for his statement of intention. We could 

agree to abide by his statement as being final on the matter. 

Give me your thoughts on this approach. I will hold off 

contacting him to see if he would be willing to receive and 

respond to the question and will not do so without you 

joining in with the statement of the question. Perhaps a 

conference call would be suit [sic] the matter.

(Id. at 61a.) Later that day, the Association’s counsel sent a second e-mail, 

requesting that “either the County backs off its position or the matter is submitted to 

this Arbitrator [Amis] for his intention which will resolve the matter.” (Id.)

On September 25, 2014, following a conversation with counsel for the 

Association, the County memorialized its position that its ability to increase the 2% 

payroll deduction was not affected by the Award and affirmed its refusal to adjust the 

payroll deductions downward. Likewise, the County refused to submit the issue to 

Arbitrator Amis for clarification, but instead insisted that the Association file a new 

grievance.

B.

Accordingly, on October 6, 2014, the Association filed a formal 

grievance with respect to the increased payroll deductions, and the parties proceeded 

to arbitration. Before Arbitrator Gerald Kobell, Esquire (Arbitrator Kobell), the 

County argued that the grievance was untimely filed as per the CBA’s seven work 

day-time limit. Arbitrator Kobell nonetheless entertained the grievance, finding it 

timely because the seven days did not begin to accrue until September 25, 2014. He 

noted that:
6

There was no evidence introduced by the County, and 

I assume that none exists, for the County payroll department 

right after February 6, 2014, to notify the Probation Officers 

in the unit that as soon as the calculations could be 

completed, or perhaps until any appeal period expired, the 

County would commence withdrawing 2.25 percent instead 

of 2 percent from employees’ pay. Most likely, the 

difference amounted to only a few dollars, and amid other 

possible changes, it just was not readily noticeable. I think 

that the County, if it believed that the “me too” language 

trumped the Arbitrator’s award of 2 percent for the life of 

the Agreement, should have communicated that position to 

the Association and to the affected employees. It did 

neither. It was not until August 14, 2014, several pay 

periods later, that the increased deduction was called to the 

attention of the Association (or perhaps President Bechtold 

noticed it himself). This triggered President Bechtold’s 

voicemail message to the Allegheny County Department of 

Human Resources, pointing out that Arbitrator Amis, in the 

Association’s view, had mandated 2 rather than 2.5 percent 

for the life of the Agreement.

***

The e-mails exchanged on September 25 was [sic] 

the first time when the filing of a new grievance was 

mentioned by either Attorney Delaney, on behalf of 

Association, or Assistant County Solicitor Correa, on behalf 

of the County. Up until that date, counsel for the respective 

parties were discussing other issues and alternatives, but not 

the filing of a new grievance before a new arbitrator. Until 

then, in my view, they were engaged in traditional 

collective bargaining to resolve all of the remaining issues 

in dispute before them, including the 2–2.25 percent 

employee participation payment.

(Id. at 26a, 31a.) With respect to the merits, Arbitrator Kobell agreed with the 

Association’s argument that Arbitrator Amis’s Award disallowed the County’s 

increase in member contributions above 2%. Arbitrator Kobell ordered the County to 

reimburse the Association’s members for their healthcare participation payments in 
7

excess of this amount and to continue the 2% deduction for the life of the CBA 

ending on December 31, 2017.

The County filed a petition to vacate the Award (petition) with the trial 

court, averring that the Award did not draw its essence from the CBA because it 

ignored the CBA’s contractually established deadline for filing grievances. In 

response, the Association filed preliminary objections, asserting that the issue of 

timeliness is a final determination left to the Arbitrator and, therefore, the County’s 

petition must be dismissed for legal insufficiency.

2

 Ultimately, the trial court 

sustained the Association’s demurrer and dismissed the County’s petition with 

prejudice “because the black letter law of Arbitration is that the Arbitrator decides 

procedural issues—like filing deadlines,” and because the Award drew its essence 

from the terms of the CBA. (8/17/15 Memorandum Order, at 1–2.) This appeal

followed.

II.

As we have previously stated, grievance awards under the Public 

Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. 

§§1101.101–1101.2301, are reviewed pursuant to the deferential essence test, which 

requires affirmance of an award if: “(1) the issue as properly defined is within the 

terms of the agreement, and (2) the award can be rationally derived from the 

agreement.” Neshaminy School District v. Neshaminy Federation of Teachers, 122 

A.3d 469, 474 (Pa. Cmwlth. 2015). Pursuant to this test, our review is “highly 

circumscribed,” meaning that “[w]here it is determined that the subject matter of the 

 

2

The Association also alleged improper original service of process; however, the trial court 

did not render its decision based upon this ground, and it does not factor into our analysis.
8

dispute is encompassed within the terms of the agreement, the validity of the 

arbitrator’s interpretation is not a matter of concern to the court.” Leechburg Area 

School District v. Dale, 424 A.2d 1309, 1312–13 (Pa. 1981).

A.

Initially, we must determine whether, as the Association contends, an 

arbitrator’s procedural decision is final and not reviewable by the courts, even under 

the circumscribed review of the essence test. In the seminal case of John Wiley & 

Sons, Inc. v. Livingston, the United States Supreme Court addressed a split among the 

United States Courts of Appeals regarding whether trial courts or arbitrators

determine if the procedural conditions to arbitration have been satisfied. 376 U.S. 

543, 84 S. Ct. 909 (1964).

In that case, a union argued that its members need not comply with the 

grievance procedures where doing so was futile and where the employer engaged in 

continuing violations of a CBA. In noting the difficulty in distinguishing procedural 

and substantive aspects of a labor dispute, the Supreme Court reasoned:

We think that labor disputes of the kind involved here 

cannot be broken down so easily into their “substantive” 

and “procedural” aspects. Questions concerning the 

procedural prerequisites to arbitration do not arise in a 

vacuum; they develop in the context of an actual dispute 

about the rights of the parties to the contract or those 

covered by it. . . .

Doubt whether grievance procedures or some part of 

them apply to a particular dispute, whether such procedures 

have been followed or excused, or whether the unexcused 

failure to follow them avoids the duty to arbitrate cannot 

ordinarily be answered without consideration of the merits 

of the dispute which is presented for arbitration. . . . It 

would be a curious rule which required that intertwined 
9

issues of “substance” and “procedure” growing out of a 

single dispute and raising the same questions on the same 

facts had to be carved up between two different forums, one 

deciding after the other. Neither logic nor considerations of 

policy compel such a result.

Id. at 556–57, 84 S. Ct. at 918.

In holding that procedural issues were not reserved for the courts, the 

United States Supreme Court went on to hold that those issues should be considered 

“as aspects of the dispute which called the grievance procedures into play,” and,

therefore, were subject to arbitration. Id. at 559, 84 S. Ct. at 918. “Once it is 

determined, as we have, that the parties are obligated to submit the subject matter of a 

dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear 

on its final disposition should be left to the arbitrator.” Id. at 557, 84 S. Ct. at 918. 

Importantly, the Supreme Court did not consider whether an arbitrator’s ruling on 

“procedural” questions may be appealed or the appropriate standard to apply to such 

questions on appeal.

Consistent with Wiley & Sons and Third Circuit precedent,3

Pennsylvania courts adopted the federal standard regarding procedural arbitrability, 

holding that procedural questions should be resolved by the arbitrator unless the 

parties to a CBA limit the arbitrator’s jurisdiction by specifying in the CBA that the

arbitrator has no jurisdiction over procedural matters. See, e.g., Kardon v. Portare, 

353 A.2d 368, 370 (Pa. 1976).

 

3

See Radio Corporation of America v. Association of Professional Engineering Personnel, 

291 F. 2d 105 (3d Cir. 1961).
10

In School District of City of Duquesne v. Duquesne Education 

Association, a case upon which the County relies, a teacher filed a grievance after the 

mandated 15-day deadline. 359 A.2d 850, 851 (Pa. Cmwlth. 1976), rev’d, 380 A.2d 

353 (Pa. 1977). Nonetheless, his grievance proceeded through the first three levels of 

the enumerated grievance procedure, during which the school district failed to raise 

the timeliness issue. 359 A.2d at 852. As such, the arbitrator concluded that the 

school district waived this issue and sustained the grievance on its merits. Id. On 

appeal to this Court, we reversed, finding that because the CBA did not specifically 

provide for the procedural question involved (waiver), the arbitrator’s decision 

finding that waiver occurred prior to arbitration was erroneous. Id. As such, we 

dismissed the grievance as untimely filed.

On further appeal, our Supreme Court reasoned that, as per Kardon, an 

arbitrator’s jurisdiction may be limited but in the CBA at issue, there was no 

limitation prohibiting the arbitrator from deciding procedural issues. School District

of City of Duquesne v. Duquesne Education Association, 380 A.2d 353, 356 (Pa. 

1977). As such, it held that under Wiley & Sons, the issue of waiver was properly 

before the arbitrator. Id. Specifically, the Court explained:

In the instant case, as in Kardon, we can find no 

limitation in the collective bargaining agreement which 

would prohibit an arbitrator from deciding procedural 

issues. As the final determination of the procedural issue is 

to be left to the arbitrator, we believe that Commonwealth 

Court erred in reversing the arbitrator.

Id. That case, however, did not hold that an arbitrator’s procedural determination was 

insulated from review.
11

In fact, in State System of Higher Education v. United Plant Guard 

Workers of America, Local Union No. 509, 612 A.2d 645 (Pa. Cmwlth.), appeal 

denied, 618 A.2d 403 (Pa. 1992), we reviewed the same issue the Association 

suggests we are precluded from reviewing here: whether an arbitrator’s 

determination that a grievance was timely filed – when the subject CBA provided 

specific terms regarding timelines for filing grievances – violated the essence test. 

There, the CBA specified that grievances must be filed within 15 working days of the 

event giving rise to the grievance, but the arbitrator found timely a grievance filed 

five years after the fact. Id. at 647. On review, we held:

[t]he agreement explicitly provided for a fifteen day limit, 

and the arbitrator’s decision to allow the late filing 

essentially ignored the language limiting the filing of 

grievances to fifteen days from the date of the occurrence 

giving rise to the grievance. As such, the decision of the 

arbitrator did not draw its essence from that agreement.

Id. at 647.

Wiley & Sons and its progeny stand for the proposition that, unless 

expressly precluded from resolving procedural issues in the CBA, questions of 

procedure, like substantive issues, are within an arbitrator’s purview. Contrary to the 

Association’s suggestion, this line of cases does not render final and unreviewable an 

arbitrator’s resolution of a procedural issue. To hold otherwise would require the 

courts to parse out the differences between questions of procedure and substance,

simply to determine which issues are reviewable by a trial court. The Supreme Court

of the United States expressly disavowed this position. See Wiley & Sons, 376 U.S. 

at 557, 84 S. Ct. at 918 (“Neither logic nor considerations of policy compel such a 

result.”).
12

B.

Having found that Arbitrator Kobell’s procedural determination is 

subject to review, we will proceed to apply the essence test. The County does not 

dispute that the timeliness issue was within the terms of the parties’ CBA, only that 

the Award was not rationally derived from the agreement under the second prong of 

the essence test. In this respect, we “will not second-guess the arbitrator’s factfinding or interpretation as long as the arbitrator has arguably construed or applied 

the CBA.” Neshaminy Sch. Dist., 122 A.3d at 474.

Specifically, the County maintains that the Award does not draw its 

essence from the CBA because it disregards the contractual time limits it contains. 

The gravamen of the County’s argument is that the October 6, 2014 grievance was 

filed 98 work days after the County notified the Association by letter dated April 8, 

2014, of its intent to implement the new deductions, and 75 work days after the new 

deductions were actually implemented. Because the CBA requires a grievance to be 

filed within seven work days of an event giving rise to a grievance or within seven

work days from the date on which the Association or its members reasonably should 

have discovered such an event, the County contends that the Award, finding the 

grievance timely filed, does not draw its essence from the CBA.

The County argues that the Association should have filed a grievance by

April 17, 2014, despite the fact that the arbitration was ongoing and Arbitrator Amis 

had not yet decided whether to raise the 2% base salary contribution as proposed by 

the County. It was not until the Award was issued in May 2014 that the Association 

learned that the 2% contribution remained in effect for the life of the agreement, 

despite the fact that the County had proposed an increased contribution. Thus, as of 
13

April 17, 2014, the Association had no knowledge of whether the County’s proposed 

actions would violate the new CBA.

Accordingly, by e-mail dated August 19, 2014, the Association advised 

Deputy Director Graham of this issue. In subsequent e-mails, the parties attempted to 

resolve the issue by reference to Arbitrator Amis’s Award. By September 22, 2014, 

Arbitrator Kobell found it still unclear whether the County intended to proceed with 

its position, and the Association expressly inquired that day whether the County 

intended to “back[ ] off its position” or to submit the matter to arbitration. (R.R. at 

61a.) On September 25, 2014, the County confirmed that it maintained its position, 

and within seven business days, the Association filed its formal grievance.

The CBA allows an arbitrator to decide when an event giving rise to a 

grievance occurred or when a grievant discovered or reasonably should have 

discovered the occurrence. In this context, Arbitrator Kobell rejected the County’s 

argument that the Association was put on notice of the increased premiums as of its 

April 8, 2014 letter or, alternatively, as of its June 20, 2014 deductions, noting that 

the former was issued before Arbitrator Amis’s Award and the latter amounted to 

only a few dollars’ difference, which was likely insufficient to put the grievants on 

notice. Instead, he found that the seven work day period did not begin to accrue until 

September 25, 2014:

The e-mails exchanged on September 25 was the first time 

when the filing of a new grievance was mentioned by either 

Attorney Delaney, on behalf of the Association, or Assistant 

County Solicitor Correa, on behalf of the County. Up until 

that date, counsel for the respective parties were discussing 

other issues and alternatives, but not the filing of a new 

grievance before a new arbitrator. Until then, in my view, 

they were engaged in traditional collective bargaining to 
14

resolve all of the remaining issues in dispute before them, 

including the 2–2.25 percent employee participation 

payment.

(R.R. at 31a.) We are not free to render our own factual findings, and because 

Arbitrator Kobell’s Award arguably construed and applied the CBA within the scope 

of his authority, his decision satisfies the essence test. See Neshaminy Sch. Dist., 122 

A.3d at 474. We, therefore, affirm the trial court’s order sustaining the Association’s 

preliminary objections to the County’s petition upholding the Award.4

 

DAN PELLEGRINI, Senior Judge

Judges McCullough and Wojcik did not participate in the decision in this case.

 

4

In arguing that Arbitrator Kobell’s Award does not flow from and is not based in the CBA 

because it did not apply the CBA’s strict, seven work day deadline, the County fails to recognize 

that as per the CBA, the deadline did not begin to run until the grievant reasonably should have 

discovered the violation. This is a factual inquiry which turns upon the specific circumstances of 

the case, see Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005) (discussing the analogous discovery 

rule, which tolls the statute of limitations until a party knows or reasonably should know of his 

injury and its cause), and background concerning the parties’ ongoing negotiations is germane to 

this issue. Contrary to the County’s argument, Arbitrator Kobell did not consider this background 

in determining whether an otherwise strict deadline was tolled by settlement negotiations. 

Additionally, in no way was Arbitrator Kobell’s Award premised upon a finding that each day 

constituted a new, ongoing violation of the CBA, giving rise to a new filing deadline. The County 

has mischaracterized Arbitrator Kobell’s Award in these respects, and we find its arguments

unavailing.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny, Pennsylvania, :

Appellant :

:

v. :

:

Allegheny Court Association of :

Professional Employees : No. 951 C.D. 2015

O R D E R

AND NOW, this 2

nd day of May, 2016, the order of the Court of 

Common Pleas of Allegheny County dated May 15, 2015, in the above-referenced 

case is affirmed.

 

DAN PELLEGRINI, Senior Judge