IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia, :

:

Appellant :

:

 v. : No. 1243 C.D. 2021

: Argued: March 6, 2023

Fraternal Order of Police, :

Lodge #5 :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 28, 2023

The City of Philadelphia (Employer) appeals from an order of the 

Philadelphia County Court of Common Pleas (trial court) that denied Employer’s 

petition to vacate an arbitration award (arbitration award). At issue is Employer’s 

dispute with the Fraternal Order of Police, Lodge #5 (Union) over whether Arbitrator 

James Darby (arbitrator) exceeded his authority when he reduced a 30-day 

suspension to a 5-day suspension for police officer James McGorry (Grievant) for a 

single rule violation, after he found that Employer failed to prove that it had just 

cause to discipline Grievant for repeated rule violations. Employer presents two 

questions for review: (1) whether the trial court erred in denying Employer’s petition 

to vacate an arbitration award where the arbitrator exceeded his authority by 

imposing a five-day suspension for an offense Employer did not charge against 
2

Grievant; and (2) whether the trial court erred in remanding the dispute to the 

arbitrator to remove reference to the new disciplinary charge while leaving the fiveday suspension intact. After careful review, we affirm. 

The facts as found by the arbitrator are as follows and are not in dispute. 

Grievant began working for Employer’s Police Department (Department) as a police 

officer in 2006, and he had a good employment record until the incidents in question 

here. Reproduced Record (R.R.) at 44a.1 On July 13, 2018, while Grievant and 

another officer were serving an arrest warrant on Chanel Freeman (C.F.), Grievant 

took C.F.’s cell phone number and contacted her a few days later, and they began a 

consensual romantic and sexual relationship that lasted a few weeks. Id. at 45a. 

Their relationship involved a few dates and hundreds of text exchanges, including 

sexually graphic pictures. Id. at 45a. 

On August 22, 2018, C.F. filed a complaint with the Department’s 

internal affairs division, alleging that Grievant sexually assaulted her and informed 

her he would “look into her case for her.” R.R. at 45a. The Department’s 

investigation revealed that Grievant texted C.F. while he was on duty, in which he 

asked C.F. “to come out of the back of her residence and give him a hug.” Id. While 

searching Grievant’s personal cell phone, the Department discovered 38 crime scene 

photos and videos, which included images of firearms, narcotics, victims that were 

shot, and deceased persons, some of which were from active crime scenes that 

Grievant had worked on, and some of which were sent to him by other officers. Id. 

1 Pa.R.A.P. 2173 states: “Except as provided in Rule 2174 (tables of contents and 

citations), the pages of . . . the reproduced record . . . shall be numbered separately in Arabic 

figures and not in Roman numerals: thus 1, 2, 3, etc., followed in the reproduced record by a small 

a, thus 1a, 2a, 3a, etc.” Although the pagination of Employer’s Reproduced Record does not 

conform to the foregoing Rule, we will cite to the relevant pages as required by the Rule. The 

arbitration award may be found in the Reproduced Record (R.R.) at 43a-53a.
3

Grievant conceded that once he had the opportunity to review the photos, he should 

have deleted them, which he did not do. Id. 

On July 29, 2019, the Department issued its investigative report, in 

which it concluded that C.F.’s sexual assault claim was unfounded and that Grievant 

had not committed any crimes. R.R. at 46a. However, the Department found that 

Grievant’s actions violated several of the Department’s rules and regulations. Id. 

Specifically, the Department determined that Grievant had abused his authority by 

engaging in a romantic relationship with C.F., had violated the Department’s social 

media policy by texting C.F. while he was on duty, and had violated Department 

Directive 4.1: Responsibilities at Crime Scenes (Directive 4.1), by using his personal 

cell phone to record crime scenes and evidence.2 Id. After a Police Board of Inquiry 

hearing, the Department determined that Grievant should be reprimanded for neglect 

of duty (for texting C.F. while on duty), suspended for 5 days without pay for 

conduct unbecoming (relating to his relationship with C.F.), and suspended for 30 

days without pay for conduct unbecoming (for repeated violations of Directive 4.1 

2 The arbitrator noted that Directive 4.1 prohibits officers from using their personal cell 

phones to record crime scenes and evidence. R.R. at 46a. The arbitrator described Directive 4.1, 

in relevant part, as follows: 

F. The use of privately owned cell phone cameras, cameras, video 

recorders or any other electronic recording device to record crime 

scenes, potential evidence, suspects, offenders[,] or victims while on 

duty will only be used in exigent circumstances when departmental 

equipment is unavailable and there is no other means to record the 

item or event. 

1. Use of non-departmental equipment by employees will be 

documented on the investigation report by the employee. 

Id. at 47a, 51a. The full text of Directive 4.1 is not included in either the Reproduced Record or 

the Original Record, but the parties do not dispute the arbitrator’s description of Directive 4.1. 
4

relating to his personal cell phone containing numerous crime scene photos and 

videos). Id. On January 3, 2020, the Police Commissioner notified Grievant that 

she was imposing the reprimand recommended by the Police Board of Inquiry for 

neglect of duty, a 5-day suspension for conduct unbecoming for his relationship with 

C.F. as an abuse of authority,3 and a 30-day suspension for conduct unbecoming for 

repeated violations of Directive 4.1 for keeping crime scene photos and videos on 

his personal cell phone. Id. 

On February 13, 2020, the Union filed a grievance alleging that 

Employer’s discipline lacked just cause, which Employer denied. R.R. at 43a. The 

grievance proceeded to arbitration before the arbitrator, who held a virtual hearing 

on March 2, 2021, during which the parties were represented by counsel and 

presented testimony, evidence, and arguments. Id. at 44a. The parties stipulated to 

the following issue to be resolved by the arbitrator: “Did [Employer] have just cause 

to discipline [] Grievant []? If not, what shall the remedy be?” Id.

At the hearing, Employer presented testimony from internal affairs 

Sergeant James Lane, who testified that Grievant violated Directive 4.1, because 

Grievant admitted he never documented any of his crime scene recordings, and he 

did not assert that he needed to make recordings on his personal cell phone due to 

exigent circumstances. R.R. at 47a. The Union presented testimony from two police 

officers who testified that officers are expected to use their personal cell phones to 

perform their official duties because the Department does not provide officers with 

cameras to use at crime scenes. Id. These officers also testified that their supervisor 

3 Although the arbitrator incorrectly stated in his factual summary that the Police 

Commissioner increased the penalty for Grievant’s abuse of authority violation from a 5-day 

suspension to a 30-day suspension, the rest of the arbitration award correctly states that Grievant 

received a 5-day suspension for this violation. R.R. at 46a, 50a-51a, 52a. 
5

had asked them to take pictures with their cell phones at crime scenes to be shared 

on social media to show the community that officers were doing their jobs. Id. 

Grievant testified that he exercised “poor judg[]ment” by starting a relationship with 

C.F., but he denied using his position as an officer to make sexual advances to her. 

Id. at 47a-48a. 

The arbitrator summarized the parties’ positions, as follows. Employer 

argued that Grievant’s discipline was supported by just cause, based on Grievant’s 

admissions that he took pictures and videos of crime scenes on his personal cell 

phone, used poor judgment in starting a relationship with C.F., and texted C.F. while 

on duty. R.R. at 48a. Employer argued that Grievant admitted to taking multiple 

photos at crime scenes, which supported its charge of repeated violations of 

Directive 4.1 under Section 1-§020-10 of the Department’s Disciplinary Code 

(Disciplinary Code) for repeated rule violations.4 Id. The Union responded that 

there was no just cause for Employer’s discipline. Id. The Union contended that 

Section 1-§020-10 of the Disciplinary Code should not apply to Grievant because he

was never counseled that keeping crime scene images on his personal cell phone 

violated Departmental rules. Id. at 48a-49a. The arbitrator found that here, “the 

evidence shows that many of Grievant’s colleagues and superiors knew that his cell 

phone contained such videos and pictures and encouraged him to keep taking 

pictures for law enforcement and publicity purposes.” Id. at 49a. The Union also 

argued that Employer failed to prove that Grievant abused his authority by entering 

into a relationship with C.F. because there was no evidence Grievant used his 

4 The Disciplinary Code is part of the Collective Bargaining Agreement (CBA) between 

Employer and the Union. R.R. at 55a-243a. Section 1-§020-10 of the Disciplinary Code prohibits 

“[r]epeated violations of any Departmental rules or regulations,” where the first offense is 

punishable by a 30-day suspension or dismissal, and the second offense is punishable by dismissal. 

Id. at 215a. 
6

authority to force C.F. to do anything. Id. The Union further claimed that Employer 

should have counseled Grievant rather than reprimanding him over a de minimis

violation of the social media policy, given Grievant’s exceptional record. Id. 

The arbitrator concluded that Employer had just cause to reprimand 

Grievant for neglect of duty by violating the Department’s social media policy, 

based on Grievant’s admission that he texted C.F. during work hours to come outside 

and give him a hug. R.R. at 50a. The arbitrator also determined that Employer had 

just cause to suspend Grievant for five days for conduct unbecoming, based on his 

admitted relationship with C.F. Id. at 51a. The arbitrator further found that although 

the relationship was consensual, Grievant “clearly used his position as an arresting 

officer to obtain [C.F.’s] phone number and pursue a relationship with her.” Id. at 

50a. The arbitrator concluded that Grievant’s behavior “clearly created an 

appearance that he was compromising his position as a police officer and/or creating 

a conflict with his sworn duties.” Id. at 51a. 

As to the charge of conduct unbecoming for repeated violations of 

Directive 4.1, the arbitrator found that Grievant admitted to taking crime scene 

photos and videos on his personal cell phone, which is a violation of Directive 4.1. 

R.R. at 51a. The arbitrator concluded that even if other officers took crime scene 

photos on their cell phones, or Grievant’s supervisors asked for such images, it does 

not explain why Grievant had failed to delete them from his cell phone or document 

them in his reports, as required by Directive 4.1. Id. The arbitrator was not 

persuaded that Grievant was unaware of this rule, as all officers are expected to be 

familiar with Departmental rules and regulations. Id. at 52a.
7

However, the arbitrator concluded that the Department failed to prove 

that Grievant repeatedly violated Directive 4.1, because it never called the violations 

to Grievant’s attention. On this point, the arbitrator concluded as follows: 

However, in light of the undisputed evidence that 

Grievant’s superiors did not call to his attention his open 

and notorious failure to abide by Directive 4.1, it would be 

unfair to sustain [Employer’s] finding that he should be 

punished for repeatedly violating [] Directive [4.1]. Had 

management brought this violation to his attention sooner 

there is no evidence [] Grievant would have refused to 

bring himself within full compliance with Directive 4.1. 

R.R. at 52a. 

Accordingly, the arbitrator sustained in part and denied in part the 

Union’s grievance. R.R. at 52a. The arbitrator concluded that Employer had just 

cause to reprimand Grievant for violating the social media policy and had just cause 

to impose a five-day suspension on Grievant for abuse of authority. Id. As to the 

violation of Directive 4.1, the arbitrator concluded: 

[W]hile [Employer] had just cause to discipline []

Grievant for violating Directive 4.1, it did not have just 

cause to do so for repeatedly violating the same. Thus, 

that portion of the 30-day suspension imposed for 

repeatedly violating Directive 4.1 shall be reduced to a [5]-

day suspension without pay (for a violation of Section 5-

§011-10, Neglect of Duty), for a total [10]-day suspension 

without pay.

Id. at 52a, 53a. 

Employer filed a petition to vacate the arbitration award with the trial 

court, limited to the issue of whether the arbitrator exceeded his authority when he 

reduced Grievant’s suspension from 30 days to 5 days for a single violation of 
8

Directive 4.1.5 Trial Court Opinion, 2/2/22, at 1.

6

 As noted by the trial court, 

Employer conceded that although the arbitrator had some discretion, Employer 

objected to the form and not the substance of the arbitration award. Id. Following 

oral argument, the trial court confirmed the arbitration award, but remanded the 

matter to the arbitrator to modify his decision by deleting the parenthetical references 

to Grievant’s violation of Section 5-§011-10 of the Disciplinary Code7for a single 

failure to comply with Directive 4.1, but leaving in place the five-day suspension. 

Id. 

The trial court summarized the facts, focusing on the “repeated 

violations” charge. Trial Court Opinion at 2-3. The trial court explained that the 

CBA between Employer and the Union was covered by the Policemen and Firemen 

Collective Bargaining Act, commonly referred to as Act 111 (Act 111).8 Id. at 4-6. 

The trial court further explained that the CBA provides that police officer discipline 

must be consistent with Employer’s Home Rule Charter and regulations of the Civil 

Service Commission, which vest in the Department the authority to supervise and 

discipline its police officers. Id. at 5. These rules provide the Police Commissioner 

with discretion to impose discipline on her officers. Id.

5 Employer did not seek to vacate the part of the arbitration award relating to discipline for 

the other two charges, so we will not discuss them further. 

6 The Trial Court Opinion may be found in the Original Record (O.R.) at 308-19. Because 

the Original Record was filed electronically and was not paginated, the page numbers referenced 

reflect electronic pagination. 

7 Section 5-§011-10 of the Disciplinary Code prohibits any “[f]ailure to comply with any 

Police Commissioner’s orders, directives, memorandums, or regulations; or any oral or written 

order of superiors[,]” where the first offense is punishable by a reprimand up to a five-day 

suspension, with increasing progressive discipline for subsequent offenses. R.R. at 229a. 

8 Act of June 24, 1968, P.L. 237, No. 111, as amended, 43 P.S. §§217.1-217.12.
9

The Disciplinary Code specifies that

[p]enalties recommended by either the Police Board of 

Inquiry or commanders for offenses listed shall be within 

the prescribed limits. The Disciplinary Code shall in no 

way limit any penalty which the Police Commissioner 

may impose. The Police Commissioner is the final 

authority on all disciplinary matters.

Trial Court Opinion at 5; see also R.R. at 207a. Pursuant to the CBA, when police 

disciplinary matters are subject to arbitration, the arbitrator does not have authority 

to “add to, subtract from[,] or in any way alter the terms of this contract, Act 111 

arbitration awards or the scale of wages set forth herein.” Trial Court Opinion at 5; 

see also R.R. at 142a. 

The trial court summarized the applicable “narrow certiorari” scope of 

review applicable to Act 111 grievance arbitrations, discussed more fully below. 

Trial Court Opinion at 6-7. Under the applicable scope of review, the trial court 

opined that Employer must demonstrate either that the arbitration award does not 

involve a term or condition of employment, or that it required Employer to commit 

an illegal act. Trial Court Opinion at 8. The trial court rejected Employer’s 

argument that disciplinary decisions involve an issue of managerial discretion, 

which would remove the issue from the arbitrator’s authority, and held that 

employee discipline is a term or condition of employment that is subject to 

mandatory bargaining. Id. The trial court was unpersuaded that the arbitrator 

intruded on Employer’s managerial functions by imposing his own discipline by

invoking Section 5-§011-10 of the Disciplinary Code (single rule violation), because

Employer did not charge Grievant under that Section. Id. The trial court rejected 

Employer’s contention as a “hyper-technical argument” that “lacks merit and 

common sense.” Id. The trial court explained that if it accepted Employer’s 
10

argument, managerial discretion would “in essence, be capable of swallowing the 

entire purpose of Act 111 and the narrow certiorari standard of review.” Id. The 

trial court rejected this expansive reading, particularly in light of Employer’s 

“concessions at oral argument,” which he summarized as an objection to the “form” 

of the arbitrator’s award, and not the result. Id. at 9. 

The trial court opined that Employer “conceded at oral argument that 

the arbitrator had discretion to reduce [Grievant’s] suspension from 30 days to 5 

days for the violation, but the arbitrator did not have discretion to invoke a section 

of the [D]isciplinary [C]ode that was not part of the Police Commissioner’s original 

punishment.” Trial Court Opinion at 9. The trial court noted the following relevant 

exchanges between the court and counsel at oral argument. 

[UNION’S COUNSEL]: But the issue here isn’t really 

[Grievant] because he’s not a party in the matter. The 

issue is the integrity of this award and whether there’s a 

basis to appeal it. And I think Your Honor hit on what the 

real underlying issue here is when you asked [Employer’s 

counsel] whether in your view this is an all or nothing 

thing. There’s either just cause for that penalty or that’s 

it. So that’s a fundamental disagreement between the 

parties. It’s an interpretation of the CBA issue, and that’s 

not something that this arbitrator found. He didn’t find 

that he was constrained to only mitigate a penalty within 

the [D]isciplinary [C]ode charging guidelines attached to 

the CBA. [R.R. at 292a-93a.]

[EMPLOYER’S COUNSEL]: The [P]olice 

[C]ommissioner’s unfettered discretion to issue discipline 

in the direction of personnel is not a matter of collective 

bargaining. [R.R. at 297a.] 

THE COURT: [Counsel], let me just ask this. [Union 

Counsel] just noted, and I see what she referred to, where 

the arbitrator dropped in Section 5-[§]011-10 neglect of 

duty into the decision and the award. Hypothetically, what 
11

if he did not do that? What if he just said it shall be 

reduced to a five-day suspension without pay and didn’t 

have the parentheticals in there? At the beginning, you 

talked about how he just thumbed through and found a 

five-day suspension. What if he didn’t reference any other 

section there? Would that change the analysis? 

[EMPLOYER’S COUNSEL]: Your Honor, we would not 

be here before you. I think focusing on the penalty is the 

wrong thing. We’re focusing on the disciplinary charges. 

That is entirely within the discretion of the [P]olice 

[C]ommissioner. If he had just dropped the penalty, it 

would be a little bit wacky, but we would not be here 

before you. [R.R. at 308a.]

THE COURT: Well, what is the heart of the issue? And 

I’m not trying to be flip about it. If you don’t have an issue 

with the total of [10] days, [5] plus [5], and you don’t take 

issue with the arbitrator’s authority to say, well, I’m not 

going to penalize [30]; I’m going to penalize [5], but the 

issue is with these [8] words of whatever it is in a 

parenthetical, if we excise that from the decision and that 

would cure the issue, then what is the heart of the issue? 

[EMPLOYER’S COUNSEL]: The heart of the issue that 

is the arbitrator exceeded his authority. [R.R. at 309a10a.] 

Trial Court Opinion at 9-10. 

Based on counsel’s statements at oral argument, the trial court “entered 

an order that reflected the respective positions of the parties, as understood by [the 

court]. This [c]ourt simply instructed the arbitrator to remove his references to 

Section 5-§011-10.” Trial Court Opinion at 10. The trial court opined that the 

arbitrator was “well within his broad authority to modify the discipline that had been 

imposed by the Police Commissioner.” Id. at 11. The trial court rejected Employer’s 

argument over the arbitrator’s reference to Section 5-§011-10 as a “nominal detail.” 

Id. The trial court concluded that the “arbitrator’s reason for invoking the new 
12

disciplinary provision (Section 5-§011-10) is clearly understood in the context of the 

entire decision.” Id. The trial court concluded that the arbitrator exercised his 

discretion and found that Grievant violated Directive 4.1 “on one occasion,” but 

Employer failed to prove he repeatedly violated Directive 4.1. Id. “As a result, the 

arbitrator referenced Section 5-§011-10, as opposed to the ‘Repeated Violations’

offense []in Section 1-§020-10.” Id. The trial court rejected Employer’s argument 

that an arbitrator must choose “all or nothing” regarding discipline, and instead 

concluded that the arbitrator exercised his discretion to “impose what the arbitrator 

believes to be a fair punishment based on the facts developed at arbitration.” Id. at 

12. 

As a result, the trial court concluded that the arbitrator did not exceed 

his authority when he modified Grievant’s 30-day suspension to a 5-day suspension, 

because the modification was an exercise of the arbitrator’s discretion under the 

CBA. Trial Court Opinion at 12. Employer then appealed the trial court’s decision 

to this Court. 

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). 
13

Uwchlan Township, Pennsylvania v. Uwchlan Township Police Association

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

op. at 4.9 

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 “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). 

As to the first issue, Employer argues that the arbitrator exceeded his 

authority because he imposed discipline for a Disciplinary Code violation with 

which Employer did not charge Grievant. Employer asserts that when the arbitrator 

found that Employer lacked just cause to discipline Grievant for repeated rule 

violations, he should have stopped there. Employer contends that when the arbitrator 

inserted a new charge into the arbitration award, he infringed on the Department’s 

managerial rights to set standards of service for its officers, including the decision 

of what Disciplinary Code violations to charge. 

The Union responds that under the narrow certiorari scope of review, 

the Court should affirm the trial court because the arbitration award does not require 

9

See Pa.R.A.P. 126(b) (“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.”). 
14

Employer to perform an illegal act or one that it could not have done voluntarily. 

The Union claims that the arbitrator decided the issue posed to him, as stipulated to 

by the parties, whether Employer had “just cause to discipline [] Grievant []? If not, 

what shall the remedy be?” R.R. at 44a. The Union submits that the arbitrator was 

within his authority to modify Grievant’s discipline, and that such modifications are 

common in disciplinary cases that proceed to arbitration. 

Employer’s second issue is closely related to the first issue. As to the 

second issue, Employer argues that the trial court’s remand, in which it modified the

arbitration award to remove the two parenthetical references to Section 5-§011-10 

of the Disciplinary Code, did not address Employer’s objection. Employer 

maintains that the resulting arbitration award continues to exceed the arbitrator’s 

authority because it levies a five-day suspension that is untethered to a specific 

Disciplinary Code violation. Employer argues that, in essence, the trial court 

allowed the arbitrator to rewrite the CBA. 

As to the second issue, the Union responds that the trial court’s remand 

to remove the parenthetical references to Section 5-§011-10 of the Disciplinary Code 

did not constitute error. The Union claims that the trial court corrected the form of 

the arbitration award based on his understanding of both Employer’s and the Union’s 

positions at oral argument. The Union rejects Employer’s attempt to turn a gardenvariety discipline mitigation decision made by an experienced arbitrator into an 

excess of authority when Employer does not meet the standards for narrow certiorari 

review. 

Under the narrow certiorari scope of review applicable here, we 

conclude that the arbitrator did not exceed his authority when he issued the 

arbitration award. The purpose of Act 111 is to prevent arbitration awards “from 
15

miring down in litigation.” Betancourt, 656 A.2d at 89. The narrow certiorari scope 

of review applies to both interest arbitrations and grievance arbitrations under Act 

111. Id. Interest arbitration occurs when an employer and employees are unable to 

agree to terms of a CBA, and grievance arbitration occurs when the parties disagree 

as to the interpretation of an existing CBA. City of Philadelphia v. International 

Association of Firefighters, Local 22, 999 A.2d 555, 559 n.2 (Pa. 2010).

Courts have been cautious to vacate an arbitration award for an excess 

of authority. As this Court has stated:

[O]ur Supreme Court has instructed, what is in excess of 

the arbitrator’s powers under that test is not whether the 

decision is unwise, manifestly unreasonable, burdens the 

taxpayer, is against public policy or is an error of law; an 

arbitrator only exceeds his power if he mandates that an 

illegal act be carried out or requires a public employer to 

do that which the employer could not do voluntarily. 

City of Scranton v. E. B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 903 

A.2d 129, 135 (Pa. Cmwlth. 2006). 

Here, Employer does not contend that the arbitration award reducing 

Grievant’s suspension from 30 days to 5 days compels it to take unlawful action. 

Further, the parties do not dispute that the Police Commissioner has discretion to 

impose discipline on her officers, and that she “is the final authority on all 

disciplinary matters” under the plain language of the CBA. R.R. at 207a. Because 

the Police Commissioner could have imposed a five-day suspension on Grievant for 

his single violation of Directive 4.1, we do not conclude that the arbitrator exceeded 

his authority by doing the same. 

In fact, courts have resisted attempts to review Act 111 arbitration 

awards that mitigate discipline as an excess of authority. In Northern Berks Regional 
16

Police Commission v. Berks County Fraternal Order of Police, Lodge #71 (Northern 

Berks Regional Police Commission), 230 A.3d 1022 (Pa. 2020), our Supreme Court 

held that an arbitrator’s decision to reinstate a police officer and convert his time off 

to a suspension without back pay did not exceed the arbitrator’s authority because 

reinstatement would not compel the employer to take unlawful action. In Uwchlan 

Township, slip op. at 5, our Court upheld an arbitrator’s decision to reduce a police 

officer’s discipline from reinstatement to a one-year suspension, when the employer 

could have voluntarily imposed that discipline pursuant to the discipline manual 

made part of the CBA. In these cases, the arbitrators were asked to determine if the 

employer had just cause to discipline the grievant, and if not, what is the appropriate 

remedy that should be imposed. 

In both Northern Berks Regional Police Commission and Uwchlan 

Township, the arbitrators determined that the employers lacked just cause to impose 

their recommended discipline and reduced the penalties, and the courts declined to 

find that the arbitrators exceeded their authority by doing so. Here, the same 

question was posed to the arbitrator, who found that Employer lacked just cause to 

discipline Grievant for repeated violations of Directive 4.1, but found just cause to 

discipline Grievant for a single, admitted violation of Directive 4.1. We decline to 

review the arbitration award here as an excess of the arbitrator’s authority as in 

Northern Berks Regional Police Commission, Uwchlan Township, and similar cases. 

We further conclude that the trial court did not err when it remanded 

the matter to remove the parenthetical references to Section 5-§011-10 of the 

Disciplinary Code, but left the five-day suspension in place. The trial court directed 

that the form of the arbitration award be modified to address the objections made by 

Employer’s counsel at oral argument. Employer cannot now successfully argue that 
17

the trial court erred by making the correction that it agreed was at issue in its petition 

to vacate. We agree with the trial court that, in the context of the arbitration award, 

the five-day suspension imposed was not untethered to the disciplinary charge that 

Employer brought forth, but was directly tied to Grievant’s single, but not repeated, 

violation of Directive 4.1 for improperly using his cell phone to document crime 

scenes. 

Accordingly, we hold that the arbitrator did not exceed his authority 

under the applicable narrow certiorari scope of review, and we affirm the trial court’s 

order. 

MICHAEL H. WOJCIK, Judge

Judge Covey did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia, :

:

Appellant :

:

 v. : No. 1243 C.D. 2021

: 

Fraternal Order of Police, :

Lodge #5 :

O R D E R

AND NOW, this 28th day of June, 2023, the order of the Court of 

Common Pleas of Philadelphia County dated October 6, 2021, is AFFIRMED.

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MICHAEL H. WOJCIK, Judge