IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berks-Lehigh Regional Police :

Officers Association :

:

v. : No. 786 C.D. 2016

: Argued: December 15, 2016

Upper Macungie Township, Topton :

Borough, Lyons Borough and :

Maxatawny Township :

:

Petition of: Upper Macungie :

Township :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: January 12, 2017 

Petitioner Upper Macungie Township (Township) appeals from an 

order of the Court of Common Pleas of Berks County (trial court), denying the 

Township’s motion for summary judgment. For the reasons that follow, we affirm. 

The undisputed facts are as follows. On January 1, 1991, Maxatawny 

Township, Topton Borough, and Lyons Borough (collectively, “Participants”) 

established the Northeastern Berks Regional Police Commission (the Commission) 

for the stated purpose of increasing the quality and efficiency of police protection 

for the Participants. The effect of the Commission was to establish a unified 

policing district, the Northeastern Berks Regional Police District, which allowed
2

the Participants’ formerly separate police departments to operate across any of the 

Participants’ municipal boundaries. 

On December 26, 2000, the Participants agreed to amend the 

Commission’s charter to include the Township as an additional participant and to 

rename the Commission the Berks-Lehigh Regional Police Commission.

1

 On 

December 3, 2007, the Commission entered into a collective bargaining agreement 

(CBA) with the Berks-Lehigh Regional Police Officers Association (the 

Association), a duly recognized bargaining unit for fulltime police officers in the 

Berks-Lehigh Regional Police Department (the Department).

2

 The CBA covered 

the years 2008, 2009, and 2010. On January 24, 2011, the Commission and the 

Association participated in an interest arbitration pursuant to what is commonly 

referred to as the Policemen and Firemen Collective Bargaining Act or Act 111, 

Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-.10. As a result of 

the January 24, 2011 arbitration, the arbitrators issued an award, providing that the 

Commission and the Association shall enter into a new agreement, which shall be 

effective retroactively from January 1, 2011, until December 31, 2013. 

On March 19, 2012, the Commission held an executive session at 

which the Township moved to withdraw from the Commission effective at the end 

of 2012.3 On April 17, 2012, the Commission voted to close the Department 

 

1

From this point forward in the opinion, the term Participants shall include Upper 

Macungie Township. 

2

The Department is operated by the Commission.

3

In its brief, the Township notes that it voted to withdraw from the Commission at a 

regular public meeting of the Township’s Supervisors, held on November 3, 2011. (Township 

Br. at 5 n.1.)
3

effective December 31, 2012. As of December 31, 2012, the Commission 

disbanded the Department and terminated the employment of all Department

police officers.

On May 16, 2012, the Association filed a charge with the 

Pennsylvania Labor Relations Board (PLRB) pursuant to Act 111 and the 

Pennsylvania Labor Relations Act (PLRA),

4

alleging that the Commission engaged 

in unfair labor practices by failing to engage in collective bargaining or interest 

arbitration over the impact of the Township’s withdrawal from the Commission 

and the subsequent closure of the Department. By decision dated June 7, 2012, the 

PLRB declined to issue a complaint and dismissed the charge of unfair labor 

practices after determining that the charge was filed prematurely. 

On May 20, 2013, the Association and the Commission participated in

an arbitration before a panel of three arbitrators to determine the impact of the 

Commission’s decision to disband the Department.

5

 On April 26, 2014, the panel

issued an award titled “Act 111 Impact Arbitration Award” (the Award). 

(Reproduced Record (R.R.) at 89a.) The Award purported to be pursuant to 

Section 4(b) of Act 111, 43 P.S. § 217.4(b). The panel framed the issue before it 

as “what is the impact of the Commission’s decision to no longer provide police 

services by disbanding its police department . . . how the impact of that decision 

shall be addressed and what remedies, if any shall be provided.” (R.R. at 89a-90a.) 

 

4 Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-.13. 

5 At oral argument, counsel for both parties stated that, to the best of their knowledge, the 

Association and the Commission mutually agreed to proceed to arbitration on the impact of the 

Commission’s decision. 
4

The Award addressed numerous issues relating to the dissolution of 

the Department, including: (1) reference letter to be given to officers employed as 

of the date of dissolution, (2) ongoing maintenance of personnel 

files, (3) cooperation on ongoing arrests and active criminal cases, and (4) recall of 

officers in the event that the Department is re-established on or before 

December 31, 2014. Notably, the Award provided that “[a]ll other proposals of the 

parties regarding the impact of the Commission’s decision to disband its police 

department which are not addressed in this Award have been fully considered by

the Panel and rejected by a majority of the same.” (R.R. at 92a.) The Award also 

provided that “[t]he Panel shall retain jurisdiction for ninety (90) days from the 

date of this Award for the limited purpose of addressing any issues involving the 

implementation of the terms of the within Award.” (Id.) 

On November 7, 2014, the Association filed a complaint in the trial 

court against the Participants, alleging that the CBA was a valid contract between 

the Participants and the Association and that the Participants breached that contract 

by disbanding the Department prior to the expiration of the CBA on 

December 31, 2013. On December 15, 2015, the Township filed a motion for 

summary judgment in the trial court, arguing that the Association raised the breach 

of contract claim in the Association’s complaint before the May 23, 2013 

arbitration panel and that the Association’s complaint should be dismissed because 

the Award resolved all of the claims therein. The trial court denied the Township’s 

motion for summary judgment without opinion on March 16, 2016. 

On April 12, 2016, the Township petitioned the trial court to amend

its March 16, 2016 order to include the interlocutory appeal language prescribed 

by 42 Pa. C.S. § 702(b). By order dated April 14, 2016, the trial court denied the 
5

Township’s request to include the interlocutory appeal language. On 

May 16, 2016, the Township petitioned this Court for review of the trial court’s 

denial of the Township’s request to include the interlocutory appeal language.6 On 

June 14, 2016, we granted the Township’s petition for review to consider whether 

the trial court lacked jurisdiction over this matter because the matter was either 

controlled by arbitration or was within the exclusive jurisdiction of the PLRB.

7

The Township argues that the trial court lacks jurisdiction over the 

instant matter because the Award is final and binding and settled all issues raised

in the Association’s complaint. Alternatively, the Township argues that, even if 

the Award did not settle all issues raised in the Association’s complaint, the 

Association’s claim that the Township breached the CBA effectively alleges that 

the Township engaged in unfair labor practices, which the PLRB has exclusive 

jurisdiction over pursuant to Section 8 of the PLRA, 43 P.S. § 211.8.

8

 The 

 

6

The Township’s petition to this Court for review of an interlocutory order was made 

pursuant to the official note to Pa. R.A.P. 1311, which provides that:

Where the administrative agency or lower court refuses to amend its order 

to include the prescribed statement, a petition for review under Chapter 15 of the 

unappealable order of denial is the proper mode of determining whether the case 

is so egregious as to justify prerogative appellate correction of the exercise of 

discretion by the lower tribunal. If the petition for review is granted in such a 

case, the effect . . . is the same as if a petition for permission to appeal had been 

filed and granted, and no separate petition for permission to appeal need be filed. 

7 Because the issue for which we granted review is a question of law, our standard of 

review is de novo and our scope of review is plenary. Cmwlth. v. White, 910 A.2d 648, 650 n.3 

(Pa. 2006); Pa. Waste Indus. Ass’n v. Monroe Cnty. Mun. Waste Mgmt. Auth., 80 A.3d 546, 555 

(Pa. Cmwlth. 2013) (en banc). 

8

Section 8 of the PLRA provides:

The [PLRB] is empowered, as hereinafter provided, to prevent any person 

from engaging in any unfair labor practice listed in section six of this act. This 

(Footnote continued on next page...)
6

Association argues that the Award was an impact arbitration award, rather than a 

grievance arbitration award, which neither settled nor purported to settle the 

Association’s breach of contract claim. Further, the Association argues that the 

breach of contract claim does not necessarily allege an unfair labor practice, and, 

therefore, the trial court has original jurisdiction to decide the claim. 

We first address whether the Award finally settled the breach of 

contract claim raised in the Association’s complaint. In doing so, we must 

examine whether the arbitration was an interest arbitration or a grievance 

arbitration within the definitions set forth in the PLRA. 

The Township argues that the Association’s claim involving a breach 

of the CBA is a grievance, which was settled via a final and binding grievance 

arbitration rather than an interest arbitration. The Association argues that the 

Award was an interest arbitration award, which did not settle the breach of contract 

claim for several reasons: (1) the Award itself stated that it was only an interest 

award; (2) the CBA did not provide a specific procedure for resolving grievances 

and, thus, did not provide that the parties should arbitrate any grievances which 

arose; and (3) the Award did not address the Association’s breach of contract 

claim, let alone render a final and binding decision on that claim.

Our Supreme Court has previously elucidated the distinction between 

an interest and a grievance arbitration:

 

(continued...)

power shall be exclusive and shall not be affected by any other means of 

adjustment or prevention that have been or may be established by agreement, law 

or otherwise. 
7

“Interest arbitration” is to be distinguished from 

“grievance arbitration.” “Interest arbitration” is the 

arbitration that occurs when the employer and employees 

are unable to agree on the terms of a collective 

bargaining agreement. “Grievance arbitration” is the 

arbitration that occurs when the parties disagree as to the 

interpretation of an existing collective bargaining 

agreement.

City of Philadelphia v. Int’l Ass’n of Firefighters, Local 22, 999 A.2d 555, 558 n.2 

(Pa. 2010).

While we agree that an award is not necessarily an interest arbitration 

award simply because “interest arbitration” is written in the header of the 

document, the substance of the Award also supports a conclusion that the Award is 

an interest award and not a grievance award. We first note that the “issues in 

dispute” submitted by the Association prior to the Arbitration did not mention the 

breach of contract claim, but related only to the potential impacts of the dissolution 

on matters such as salary, rank, and benefits of officers. (R.R. at 210a.) Further, 

the relief granted by the Award relates only to issues that may arise between the 

Association and the Participants after the dissolution, rather than whether the

Participants breached the CBA. Specifically, the Award provides: (1) that officers 

employed as of the date of dissolution shall be given neutral letters of reference 

noting that their employment was terminated due to the dissolution; (2) that 

personnel files for formerly employed officers will be maintained by Maxatawny 

Township; (3) that formerly employed officers will cooperate with ongoing 

criminal trials and previously made arrests; and (4) that any former officer who 

remained employed through December 31, 2012, shall have the right to be recalled 

if the Department is re-established on or before December 31, 2014. Thus, the 

relief addressed in the Award relates only to how the Commission and the 
8

Association will interact after the dissolution, rather than deciding any outstanding 

grievances. 

In arguing that the Award also addressed the Association’s breach of 

contract claim, the Township places great weight on section 5 of the Award, which 

is titled “Remaining Issues.” (R.R. at 92a.) Section 5, however, merely states that 

“[a]ll other proposals of the parties regarding the impact of the Commission’s 

decision to disband its police department which are not addressed in the Award 

have been fully considered by the Panel and rejected by a majority of the same.” 

Id. (emphasis added). Even if the parties did present arguments on the 

Association’s breach of contract claim, the Award is specifically limited to 

addressing the impact of the Commission’s decision rather than any breach or 

violation of the CBA. 

Further, the CBA itself does not call for final and binding arbitration 

in the event a grievance arises. The only reference to a grievance procedure relates 

to discipline of officers: “[a]ny Police Officer discipline imposed by the 

Commission shall be subject to such rules as General Orders, Standard Operating 

Procedures and Policies promulgated by the Commission and/or the Chief of 

Police.” (R.R. at 70a.) Our Supreme Court has previously held that Act 111 does 

not require that grievances and disputes be resolved by binding arbitration. See 

Twp. of Moon v. Police Officers of Twp. of Moon, 498 A.2d 1305 (Pa. 1985). In 

the absence of such an agreement to arbitrate, “the Court of Common Pleas has 

jurisdiction over actions involving claims under collective bargaining agreements.” 

Borough of Philipsburg v. Bloom, 554 A.2d 166, 168 (Pa. Cmwlth. 1989), 

aff’d, 574 A.2d 602 (Pa. 1990). Despite Act 111’s intent to encourage resolution 

of CBA grievances through arbitration, the parties are free to exclude grievances
9

from the dispute resolution process. West Lampeter Twp. v. Police Officers of W.

Lampeter Twp., 598 A.2d 1049, 1051 (Pa. Cmwlth. 1991), appeal 

denied, 613 A.2d 562 (Pa. 1992). It is axiomatic that arbitration is a matter of 

contract and that a particular issue cannot be arbitrated absent an agreement 

between the parties. Hazleton Area Sch. Dist. v. Bosak, 671 A.2d 277, 281 (Pa. 

Cmwlth. 1996). 

Having determined that the Award was not final and binding with 

respect to the Association’s breach of contract claim, we now address whether the 

trial court or the PLRB has jurisdiction to decide that issue. 

The Pennsylvania Constitution sets forth the starting point for 

determining what tribunal has jurisdiction over a particular type of claim. 

Article 5, Section 5 of the Pennsylvania Constitution provides “[t]here shall be one 

court of common pleas for each judicial district . . . having unlimited original 

jurisdiction in all cases except as may otherwise be provided by law.” See Cnty. of 

Erie v. Verizon North, Inc., 879 A.2d 357, 363 (Pa. Cmwlth. 2005); 42 Pa. 

C.S. § 931(a).

9

Thus, the next step in our analysis is determining whether any law 

vests jurisdiction in another court or agency. Section 8 of the PLRA empowers the 

PLRB “to prevent any person from engaging in any unfair labor practice listed in 

section six of this act.” We have previously held that the PLRA, read in pari 

 

9

42 Pa. C.S. § 931(a) provides: 

(a) General rule - Except where exclusive original jurisdiction of an action or 

proceeding is by statute or by general rule adopted pursuant to 

section 503 (relating to reassignment of matters) vested in another court of this 

Commonwealth, the courts of common pleas shall have unlimited original 

jurisdiction of all actions and proceedings, including all actions and proceedings 

heretofore cognizable by law or usage in the courts of common pleas.
10

materia with Act 111, vests in the PLRB the authority to adjudicate claims 

involving unfair labor practices which arise in relation to a collective bargaining 

agreement. Wilkes-Barre Twp. v. Pa. Labor Relations Bd., 878 A.2d 977, 982 (Pa. 

Cmwlth. 2005). 

While it is clear the Association’s claim relates to an alleged breach of 

the CBA, it does not expressly allege that the Commission engaged in unfair labor 

practices.10 The Township argues that a breach of a CBA is an unfair labor 

practice as a matter of law, or, alternatively, that the PLRB must determine if an 

unfair labor practice exists before jurisdiction reverts to the trial court. 

We do not agree with the Township’s contention that every breach of 

contract claim relating to a CBA is an unfair labor practice as a matter of law. We 

have previously held that such a breach could result in both an unfair labor practice 

and a grievance:

Where breach of contract is alleged, interpretation of 

collective bargaining agreements typically is for the 

arbitrator under the grievance procedure set forth in the 

parties’ collective bargaining agreement. However, the 

PLRB will review an agreement to determine whether the 

employer clearly has repudiated its provisions because 

such a repudiation may constitute both an unfair labor 

practice and a grievance. 

Pa. State Troopers Ass’n v. Pa. Labor Relations Bd., 761 A.2d 645, 649 (Pa. 

Cmwlth. 2000) (emphasis added) (internal citations omitted). Thus, if a party 

submits a claim to the PLRB alleging an unfair labor practice due to a breach of 

 

10 We recognize that the Association had previously filed a charge of unfair labor 

practices with the PLRB on May 16, 2012. The PLRB, however, dismissed the charge as 

premature, and, presumably, the Association chose not to pursue that charge after the dismissal. 
11

contract, the PLRA empowers the PLRB to review the CBA to determine if the 

breach rises to the level of an unfair labor practice. 11 Accordingly, every breach of 

contract claim is not necessarily an unfair labor practice.12 

Additionally, the PLRA does not require that a party must first submit 

a breach of contract claim to the PLRB to determine whether it does, in fact, 

constitute an unfair labor practice. “The PLRB exists to remedy violations of 

statute, i.e., unfair labor practices, and not violations of contract.” AFSCME, Dist. 

Council 47, Local 2187 v. Pa. Labor Relations Bd., 41 A.3d 213, 217 (Pa. 

Cmwlth. 2012). We have held that the PLRB will review a repudiated contract to 

determine if unfair labor practices exist, but we did not hold that it must do so. See 

Pa. State Troopers Ass’n, 761 A.2d at 649. Here, the Association chose not to 

pursue an unfair labor practice claim after the PLRB determined that the charge 

 

11 Section 8(b) of the PLRA provides that “[w]henever it is charged that any person has 

engaged in or is engaging in any such unfair labor practice, the [PLRB], . . . shall have authority 

to issue charges in that respect.” The Association did not attempt to charge in its complaint that 

an unfair labor practice occurred, and, thus, the PLRB has no authority to issue charges on a 

claim that was not raised. 

12 The Township cites Wilkes-Barre Township for the proposition that a breach or 

repudiation of a collective bargaining agreement must also be an unfair labor practice. 

Wilkes-Barre Township, however, is readily distinguishable from the instant case. In 

Wilkes-Barre Township, the township allegedly repudiated a collective bargaining agreement 

with the local police association by enacting an ordinance providing different compensation for 

new hires than the compensation agreed to in the collective bargaining agreement. Willkes-Barre 

Twp., 878 A.2d at 979. The PLRB held that the township committed an unfair labor practice in 

violation of Act 111 by unilaterally altering the collective bargaining agreement. Although 

factually similar in some respects, Wilkes-Barre Township is procedurally distinct on one critical 

point: the association in Wilkes-Barre Township filed a claim alleging unfair labor practices with 

the PLRB rather than filing a complaint in a court of common pleas. Thus, Wilkes-Barre

Township has no bearing on whether any breach of contract arising out of a CBA constitutes an 

unfair labor practice that must first be submitted to the PLRB. 
12

was filed prematurely on June 7, 2012. The Association’s complaint provides, in 

pertinent part:

24. [The Association] believes and therefore states, that it 

had a valid contract in existence that did not expire until 

the end of 2013.

25. [The Association] further believes, and therefore 

states, that accordingly, the Defendants have an 

obligation to fund the CBA at least through the end of 

2013.

26. The Defendants are in breach of their contract with 

[the Association].

27. As a direct and proximate result of the breach by the 

Defendants, [the Association] has suffered a loss in 

excess of Fifty Thousand Dollars ($50,000).

(R.R. 6a.) As stated above, not every breach of contract claim related to a CBA is 

an unfair labor practice as a matter of law. Thus, the Association has alleged only 

a breach of contract claim and has sought only relief in the form of compensatory 

damages consistent with a breach of contract claim. Accordingly, the trial court 

has original jurisdiction over the Association’s breach of contract claim. In 

contrast, had the Association alleged an unfair labor practice or sought relief 

consistent with the PLRA, the PLRB would have exclusive jurisdiction over that 

claim. Pa. State Lodge of the Fraternal Order of Police v. Pa. State 

Police, 535 A.2d 270, 271 (Pa. Cmwlth. 1987).

Contrary to the Township’s assertions, we find no case law to support 

a conclusion that all breach of contract claims relating to a CBA are per se unfair 

labor practices within the exclusive jurisdiction of the PLRB. In fact, our prior 

decisions support a determination that a breach of contract claim which does not 

allege unfair labor practices should be adjudicated using the grievance process set 

forth in the CBA. In the absence of such a grievance process, the courts of 
13

common pleas have original jurisdiction over a breach of contract claim. Thus, the 

Association’s complaint was properly before the trial court. 

Accordingly, the order of the trial court is affirmed. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berks-Lehigh Regional Police :

Officers Association :

:

v. : No. 786 C.D. 2016

:

Upper Macungie Township, Topton :

Borough, Lyons Borough and :

Maxatawny Township :

:

Petition of: Upper Macungie :

Township :

O R D E R

AND NOW, this 12th day of January, 2017, the order of the Court of 

Common Pleas of Berks County, denying Upper Macungie Township’s motion for 

summary judgment, is hereby AFFIRMED. 

 

 P. KEVIN BROBSON, Judge