IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Zipovsky, :

Appellant :

 :

v. : No. 1063 C.D. 2023

 : Argued: September 9, 2024

City of Hazleton Aggregated Pension :

Board, City of Hazleton, and Mayor :

Jeff Cusat :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: October 8, 2024

Kenneth Zipovsky (Appellant) appeals from an August 21, 2023 Order of the 

Court of Common Pleas of Luzerne County (common pleas), which granted 

judgment in favor of the City of Hazleton Aggregated Pension Board (Board), the 

City of Hazleton (City), and Mayor Jeff Cusat (Mayor) (collectively, Appellees). 

Appellant had filed a Petition for Review (Petition) with common pleas seeking 

review of the Board’s response to his letter requesting recalculation of his pension 

benefits. Appellant argues common pleas erred in entering judgment for Appellees 

because contrary to common pleas’ conclusion, his Petition sought review of the 

Board’s response, not an arbitrator’s related decision involving a grievance brought 

by the bargaining unit, the Petition was timely filed, the arbitrator’s decision did not 

bar common pleas from reaching the merits of Appellant’s Petition, and Appellant 

was denied due process. Upon careful review and consideration, we affirm.
2

I. BACKGROUND1

Appellant was employed by the City as a police officer since 1993. (Common 

Pleas’ Findings of Fact (FOF) ¶ 5.)2 The police are represented by the Fraternal 

Order of Police, Power City Lodge No. 18 (Union), which negotiated a collective 

bargaining agreement (CBA) with the City. (Id. ¶¶ 6, 9.) The CBA sets forth three 

different pension options for police depending upon their date of hire – Plan A, Plan 

B, and Plan C – each with a different calculation method, and each of which was 

incorporated into the pension plan via a City ordinance. (Id. ¶¶ 10-11, 15-18; see 

also Ex. 1,3 Reproduced Record (R.R.) at 383a-444a;4 Ex. 3, R.R. at 453a-60a.) 

Appellant was the only remaining Plan A participant who had not retired as of 

December 31, 2017. (FOF ¶¶ 12, 19.) Appellant requested the Board calculate his 

pension benefit in late 2017, and the Board did. (Id. ¶¶ 21, 23-24; see also Ex. 4, 

R.R. at 462a; Ex. 5, R.R. at 464a.) On January 15, 2018, Appellant advised the 

Board and the police chief in writing that he was retiring effective at the end of his 

shift the next day. (FOF ¶ 25; see also Ex. 6, R.R. at 466a-67a.) In his retirement 

letter, Appellant advised of which calculation method he chose and stated if a lesser 

amount was paid, he would accept it without prejudice to pursue the higher amount. 

1 Based largely upon the parties’ stipulation, common pleas found as follows.

2 A copy of common pleas’ Order and accompanying Findings of Fact and Conclusions of 

Law are in the Reproduced Record at pages 369a through 381a.

3 Many of the exhibits appear in the Reproduced Record twice, once as part of the parties’ 

stipulation and again as an exhibit to common pleas’ Findings of Fact and Conclusions of Law. 

While the exhibit numbering is the same in some situations, there is some discrepancy between 

the numbering of common pleas’ exhibits and the stipulation’s exhibits. For instance, the Board’s 

calculations of Appellant’s pension benefits are exhibits 5 and 6, respectively, to the parties’ 

stipulation but are exhibits 4 and 5 of common pleas’ Findings of Fact and Conclusions of Law. 

We will follow the numbering of the exhibits appended to common pleas’ Findings of Fact and 

Conclusions of Law to avoid any confusion with the exhibits referenced therein. 

4 The portion of the CBA dealing with pension benefits begins at page 421a of the 

Reproduced Record. 
3

(FOF ¶¶ 25-26; Ex. 6, R.R. at 466a.) Appellant began receiving his pension on 

February 1, 2018. (FOF ¶ 28.) 

On February 23, 2018, the Union filed a class action grievance against the 

City, alleging it was violating the terms of the CBA by improperly calculating and 

paying pension benefits for Appellant and certain Plan C participants who retired.5 

(Id. ¶¶ 29, 40; see also Ex. 7, R.R. at 469a-70a.) The grievance was heard by an 

arbitrator who issued a Decision and Award (Award) on January 17, 2019, 

determining that the grievance, as it pertained to Appellant, was untimely because it 

was filed outside the 30-day timeframe set forth in the CBA. (FOF ¶¶ 32-33, 45(e)-

(f); see also Ex. 8, R.R. at 472a-83a.) Accordingly, Appellant filed his own appeal 

with the Board on February 15, 2019. (FOF ¶¶ 34-35; see also Ex. 9, R.R. at 485a.) 

The same day, Appellant received a letter response from the Board’s solicitor, 

attached to which was a letter from the City’s labor counsel, effectively denying the 

appeal citing the recent Award. (FOF ¶ 37; Ex. 10, R.R. at 487a.) Appellant 

thereafter filed his Petition with common pleas on March 15, 2019. (FOF ¶ 39.)6

Based upon a stipulated record and the briefs and oral argument of the parties, 

common pleas granted judgment in favor of Appellees. Common pleas found the 

CBA contained a provision that required any disputes between members and the City 

to be resolved through arbitration. (Id. ¶¶ 42-43.) Common pleas further found the 

CBA provided that a member, a Union representative, or the Union itself could 

initiate a grievance with the police chief within 30 days of its occurrence. (Id. ¶ 44.) 

Based upon its findings, and citing the narrow scope of review for arbitration 

decisions, common pleas concluded that because “[t]he arbitrator found that as [it] 

5 Counsel who represents Appellant in this appeal also represented the Union at the 

arbitration.

6 Appellees filed a Supplemental Reproduced Record that contains a copy of the Petition.
4

pertains to [Appellant, common pleas] does not have jurisdiction due to the untimely 

filing of a grievance and in accordance with the [a]rbitrator’s findings.” (Common 

Pleas’ Conclusions of Law (COL) ¶¶ 1-4.) Common pleas further concluded that 

the Petition should have been filed within 30 days of the Award but was filed nearly 

two months later, therefore depriving common pleas of jurisdiction. (Id. ¶¶ 5-6.) 

Common pleas explained that, consistent with City of Arnold v. Wage Policy 

Committee of the City of Arnold Police Department, 171 A.3d 744 (Pa. 2017), 

Appellant’s redress was through arbitration based on the Policemen and Firemen 

Collective Bargaining Act, commonly referred to as Act 111,7the Third Class City 

Code,8the City’s ordinances, and the CBA. (COL ¶¶ 7-9.) Common pleas 

concluded the cases relied upon by Appellant, Sheppleman v. City of Chester 

Aggregated Pension Fund, 271 A.3d 938 (Pa. Cmwlth. 2021), appeal denied, (Pa., 

No. 43 MAL 2022, filed July 18, 2022), and Chudd v. City of Philadelphia, 455 A.2d 

1259 (Pa. Cmwlth. 1983), were distinguishable.9 (COL ¶ 10.) Accordingly, 

common pleas dismissed the Petition. (COL ¶ 11.) 

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

8

11 Pa.C.S. §§ 10101-14702, as amended.

9

In Chudd, a court of common pleas dismissed a petition for review filed by a municipal 

retiree’s estate challenging the calculation of the retiree’s service-connected disability pension on 

the basis it was untimely. 455 A.2d at 1260. The retiree was awarded retroactive benefits in 

December 1978. Id. at 1260-61. The retiree wrote the local pension and retirement board in 

November 1979, claiming his pension was miscalculated based upon a retroactive salary increase 

that would have predated his retirement. Id. at 1261. After not receiving a response, the retiree 

filed a petition for review in the local court of common pleas in November 1980, but the court of 

common pleas dismissed it as untimely, claiming it should have been filed at the time benefits 

were first awarded in December 1978. Id. We held there was no record evidence indicating the 

retiree was aware of the retroactive salary increase at that time, and, as a result, the retiree’s appeal 

period should not begin to run from that date. Id. We further held there was no adjudication by 

the local pension and retirement board as it never responded to the retiree’s request. Id. at 1262. 

We stated the municipality, under the express terms of its ordinance, had “a clear duty at least to 

decide an adjustment request,” which it did not do, and thus the local court of common pleas should 

(Footnote continued on next page...)
5

Appellant then filed a notice of appeal, seeking review of common pleas’ 

Order by this Court. After Appellant filed a concise statement of errors complained 

of on appeal, common pleas issued a “Supplemental Opinion” pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a) (Suppl. Op.), 

further explaining its rationale.10 First, common pleas explained that “the only 

appropriate avenue for dealing with disputes was through the CBA.” (Suppl. Op. at 

3.) Even if the Court were to conclude the appeal should proceed through the Local 

Agency Law, 2 Pa.C.S. §§ 551-555, 751-754, common pleas stated the Petition was 

still untimely as the Board calculated the pension benefits in January 2018, and 

Petitioner started receiving them in February 2018, yet did not challenge the 

calculation until February 2019, which was outside the 30-day window. (Id.) 

Second, common pleas stated that, contrary to Appellant’s assertions, it did not apply 

have treated his complaint as one sounding in mandamus. Id. Accordingly, we vacated the order 

and remanded the matter for an adjudication. Id. at 1263. Common pleas concluded Chudd was

distinguishable because, although it involved “an appeal of a local agency[’s] lack of adjudication,

[] that issue d[id] not apply to [this] case in that the CBA in th[is] [] case is the vehicle for 

determining all disputes.” (COL ¶ 10.) 

In Sheppleman, a city pension fund appealed from a court of common pleas order directing 

it to recalculate a service-connected disability pension of an officer. 271 A.3d at 942. The city 

pension fund argued, among other things, that the officer’s appeal was untimely because he was 

on notice of the calculation of his service-connected disability pension in July 2014 but did not file 

a complaint with the court of common pleas until October 2016. Id. at 960. Because the officer 

was never afforded an opportunity to be heard, as required by Section 553 of the Local Agency 

Law, 2 Pa.C.S. § 553, and Chudd, we determined the July 2014 calculation was not an adjudication 

that would have triggered the 30-day appeal period. Id. at 960-61. As common pleas noted in its 

Conclusions of Law, the parties in Sheppleman stipulated to the issue being sent to the local 

agency for decision and being governed by the Local Agency Law. (COL ¶ 10.) See also 

Sheppleman, 271 A.3d at 944. Further, “[t]o the extent that it stands for the proposition that the 

[p]laintiff in that case did not have the opportunity to have a hearing before the [p]ension [b]oard 

so there was no true adjudication and therefore no need for an appeal within [30] days,” common 

pleas stated, “it was not relevant to [its] inquiry.” (COL ¶ 10.)

10 A copy of the Supplemental Opinion is in the Reproduced Record at pages 491a through 

494a.
6

collateral estoppel to Appellant’s claims. (Id.) Common pleas relied upon its initial 

decision for the remaining issues. (Id. at 4.)

II. PARTIES’ ARGUMENTS

Appellant raises numerous issues on appeal, the essence of which is that 

common pleas erred in viewing his Petition as one challenging the Award, which 

Appellant claims he would not have had standing to bring, when Appellant was 

actually appealing the Board’s denial of his appeal related to its calculation of his 

pension benefits. Appellant asserts this error was compounded by common pleas 

concluding the Petition was untimely since it was filed more than 30 days after the 

Award. Appellant maintains under the Local Agency Law, he has the right to seek 

review of the Board’s determination. While Appellant acknowledges he received a 

calculation of his pension amount before retiring, it did not provide any means to 

appeal if he disagreed with it. Thus, he asserts he acted reasonably in waiting for 

the Union’s grievance with the City to play out. According to Appellant, due process 

requires that he be provided with an opportunity to be heard, which was not 

accomplished in arbitration, to which he was not a party, or before common pleas, 

which misunderstood the basis of his Petition, thereby precluding his arguments 

from being heard. 

Appellant further argues that to the extent the arbitrator concluded he lacked 

jurisdiction over the grievance, at least to the extent it involved Appellant, this 

determination did not divest common pleas of jurisdiction as it concluded; rather, 

the Petition was a timely appeal of the Board’s decision. Moreover, Appellant 

argues collateral estoppel and/or res judicata principles based on the Award do not 

apply. Appellant posits there is no identity of the parties since the only parties to the 

grievance arbitration were the City and Union. Furthermore, Appellant asserts there 
7

was never a determination on the merits of whether Appellant’s pension was 

correctly calculated as a Plan A participant because the arbitrator concluded that 

portion of the grievance was untimely; to the extent the arbitrator did address pension 

calculations, it only was in relation to Plan C participants. Because Appellant has 

never had an opportunity to be heard on the issue of his pension calculation, he 

maintains this matter, “at the very least,” should be remanded. (Appellant’s Brief at 

37.) However, because he believes the Court has the authority to decide it de novo, 

he makes several other arguments as to why the Board’s calculation was incorrect 

and should be reversed. 

The City and Board respond that common pleas correctly determined that 

because the pension benefit is incorporated into the CBA, it is an arbitrable issue 

consistent with City of Arnold. Even if the appeal is proper under the Local Agency 

Law, they argue it was still untimely as it was not brought within 30 days. The City 

and Board also assert res judicata does apply to this situation as the grievance 

underlying the Award was filed by the Union on Appellant’s behalf. Further, they 

argue that Appellant never appealed the arbitrator’s conclusion that he lacked 

jurisdiction due to the grievance being untimely filed. Finally, the City and Board 

argue the calculation of Appellant’s pension benefits was proper. Accordingly, they 

request that the Court affirm common pleas’ Order. 

III. DISCUSSION 

We begin with Appellant’s assertion that the Local Agency Law applies 

because this is an appeal of a decision from the Board, not an appeal of an arbitration 

award, as common pleas appeared to treat it. Section 752 of the Local Agency Law 

provides “[a]ny person aggrieved by an adjudication of a local agency who has a 

direct interest in such adjudication shall have the right to appeal therefrom to the 
8

court vested with jurisdiction of such appeals or pursuant to Title 42 (relating to 

judiciary and judicial procedure).” 2 Pa.C.S. § 752. The term “adjudication” is 

defined as 

[a]ny final order, decree, decision, determination or ruling by an agency 

affecting personal or property rights, privileges, immunities, duties, 

liabilities or obligations of any or all of the parties to the proceeding in 

which the adjudication is made. The term does not include any order 

based upon a proceeding before a court or which involves the seizure 

or forfeiture of property, paroles, pardons or releases from mental 

institutions.

Section 101 of the Administrative Agency Law, 2 Pa.C.S. § 101. We have held that 

a calculation of a pension benefit is an adjudication under the Local Agency Law. 

See Sheppleman, 271 A.3d at 960. Pursuant to Section 5571(b) of the Judicial Code, 

an appeal from a local agency adjudication must be filed within 30 days. 42 Pa.C.S. 

§ 5571(b). 

A threshold issue in this matter is whether the Local Agency Law is applicable 

to Appellant’s Petition. Here, Appellant filed the Petition seeking to challenge what 

was effectively a denial by the Board. Thus, it was not an untimely appeal from the 

Award, as common pleas perceived it, precluding it from exercising jurisdiction over 

the Petition. However, common pleas also concluded it lacked jurisdiction for 

another reason – namely, that the dispute could only be resolved through the dispute 

resolution process set forth in the CBA. 

The CBA provides that “[g]rievances shall include any and all disputes 

between a member(s) and . . . City . . . , including matters involving interpretation of 

this agreement, all matters of discipline and all matters involving the [act commonly 

known as] Heart and Lung Act.[11]” (CBA § 41.1.1, R.R. at 438a.) It further provides 

11 Act of June 28, 1935, P.L. 477, as amended, 53 P.S. §§ 637-638.
9

that to initiate the first step of the grievance process, “[t]he member, either alone or 

accomplished by a representative of the bargaining unit or the bargaining unit itself, 

shall present the grievance in writing to the Chief of Police within thirty (30) days 

of its occurrence or knowledge of its occurrence.” (CBA § 41.1.2, R.R. at 438a.) 

Step 2 of the grievance procedure also provides that a “member, or the bargaining 

unit representative,” may appeal to the mayor. (CBA § 41.1.3, R.R. at 438a.) Step 3

allows the “bargaining unit representative” to request arbitration. (CBA § 41.1.4, 

R.R. at 438a.)

Based on this language, common pleas reasoned that, under City of Arnold, 

the issue of Appellant’s pension calculation fell exclusively within the arbitrator’s 

jurisdiction. (COL ¶¶ 7-9; see also Suppl. Op. at 3.) In City of Arnold, the Supreme 

Court was faced with the issue of whether an arbitrator had subject matter 

jurisdiction to decide a dispute between a union and municipality related to a 

surviving spouse’s pension benefit, which was statutorily provided and incorporated 

into the parties’ CBA. 171 A.3d at 745. The dispute was originally decided in 

arbitration pursuant to the parties’ CBA, but on appeal, the municipality challenged 

the arbitrator’s jurisdiction. Id. at 748. On appeal to this Court, we held the 

arbitrator lacked jurisdiction because the widow’s exclusive remedy was via the 

Local Agency Law since it involved a decision of a local pension board. On appeal 

to the Supreme Court, it held the matter was arbitrable under Act 111 because the 

benefit was incorporated into the CBA. Id. at 745. The Supreme Court explained 

that pursuant to article III, section 31 of the Pennsylvania Constitution, PA. CONST.

art. III, § 31,12 the General Assembly enacted Act 111, which provides in relevant 

12 Article III, section 31 provides, in relevant part, that 

(Footnote continued on next page...)
10

part that police “have the right to bargain collectively with their public employers 

concerning the terms and conditions of their employment, including compensation, 

hours, working conditions, retirement, pensions and other benefits, and shall have 

the right to an adjustment or settlement of their grievances or disputes in accordance 

with” Act 111. City of Arnold, 171 A.3d at 749 (quoting Section 1 of Act 111, 43 

P.S. § 217.1). The Supreme Court further explained that Act 111 also provides that 

“disputes may be resolved by arbitration.” Id. The Supreme Court noted that the 

municipality enacted an ordinance providing a pension death benefit, which is also 

provided for by the Third Class City Code, and the parties’ CBA specifically 

incorporated that ordinance and stated that “any dispute” was subject to the 

grievance process. Id. at 750-52. Based upon this, the Supreme Court concluded 

the arbitrator had subject matter jurisdiction over the dispute. Id. at 754. To the 

extent this Court held the dispute was not between the municipality and employee, 

which would be subject to the CBA, but rather involved a dispute with the widow, 

the Supreme Court stated we

did not account for the fact that the survivor benefit was incorporated 

into the CBA. This is a significant omission because . . . the pension 

benefit was a specific term or condition of employment arising from 

[her husband]’s employment as a [c]ity police officer, the benefit was 

the General Assembly may enact laws which provide that the findings of panels or 

commissions, selected and acting in accordance with law for the adjustment or 

settlement of grievances or disputes or for collective bargaining between policemen 

and firemen and their public employers shall be binding upon all parties and shall 

constitute a mandate to the head of the political subdivision which is the employer, 

or to the appropriate officer of the Commonwealth if the Commonwealth is the 

employer, with respect to matters which can be remedied by administrative action, 

and to the lawmaking body of such political subdivision or of the Commonwealth, 

with respect to matters which require legislative action, to take the action necessary 

to carry out such findings.

PA. CONST. art. III, § 31.
11

incorporated into the parties’ CBA, and the parties agreed to submit any 

disputes arising under the CBA to mandatory grievance arbitration. 

Further, as a police officer necessarily must be deceased for the 

officer’s surviving spouse or children to receive a survivor pension 

benefit, that survivor is the only party remaining to dispute the [c]ity’s 

administration of that benefit.

Id. at 755 (internal citation omitted). 

Accordingly, the Supreme Court reversed this Court’s conclusion that the 

arbitrator lacked jurisdiction because the widow’s exclusive remedy was via the 

Local Agency Law since it involved a decision of a local pension board. Id. at 756. 

On that point, the Supreme Court again stated we “did not consider the 

circumstances of this case, in which the pension benefits were incorporated into the 

CBA and both Act 111 and the CBA provide that any disputes may be resolved 

through arbitration.” Id. 

We agree with common pleas that, under the facts here, City of Arnold would 

ordinarily control which forum was appropriate to bring an action challenging a

police officer’s pension calculation and that forum would be through the grievance 

arbitration procedure set forth in the relevant CBA. The pension, which is statutorily 

provided by the Third Class City Code, was memorialized in a City ordinance, (R.R. 

at 453a-60a), and incorporated into the CBA, (id. at 421a-24a), similar to the pension 

benefit at issue in City of Arnold. Consistent with Act 111, which requires a 

municipal employer to bargain over the terms and conditions of employment, 

including pensions, the CBA further provides that “[g]rievances shall include any 

and all disputes,” and should the dispute reach arbitration, the final step of the 

grievance process, the arbitrator’s decision is “final and binding.” (CBA §§ 41.1.1, 

41.2.3, R.R. at 438a (emphasis added).) 

To fully resolve the jurisdictional issue, though, we must also examine 

standing to determine whether the grievance procedure set forth in the CBA was 
12

available for Appellant, as a retiree, to bring an action challenging his pension 

calculation. This is because if the issue of his pension calculation could not be 

grieved, Appellant had to have some forum in which to challenge it. City of Arnold 

may provide an arbitrator has subject matter jurisdiction over a pension dispute, but 

the issue of standing to pursue relief through that forum is a different inquiry.13 

Appellant argues he neither filed, nor could file, a grievance challenging the 

pension calculation as he lacked standing to do so. For support, he cites Lee v. 

Municipality of Bethel Park, 626 A.2d 1260 (Pa. Cmwlth. 1993). Therein, we held 

former municipal police officers lacked standing to challenge an Act 111 arbitration 

and subsequent enactment of an ordinance implementing the arbitration award. The 

trial court had sustained preliminary objections, concluding the officers lacked 

standing. On appeal, we held, in relevant part, that “absent a specific provision in a 

[CBA],” an individual lacks standing to challenge an arbitration award. Id. at 1262 

n.3; see also Township of Hellam v. Hellam Twp. Police Officers’ Ass’n, 722 A.2d 

740, 745 (Pa. Cmwlth. 1998) (“It is well settled that, absent a specific provision in a 

13 “[T]he question of standing is distinct from that of subject matter jurisdiction.” Soc’y 

Hill Civic Ass’n v. Pa. Gaming Control Bd., 928 A.2d 175, 178 n.2 (Pa. 2007). “Subject matter 

jurisdiction concerns the competency of the [tribunal] to determine controversies of the general 

class to which the case presented for its consideration belongs.” In re Nomination Petition of 

deYoung, 903 A.2d 1164, 1168 (Pa. 2006) (quotation marks and emphasis omitted). Standing, on 

the other hand, relates to the ability of a party to bring an action. Chester Upland Sch. Dist. v. 

Rossi, 275 A.3d 1117, 1124 (Pa. Cmwlth. 2022). Standing is not a jurisdictional issue and, as a 

result, cannot be raised sua sponte. In re Nomination Petition of deYoung, 903 A.2d at 1168. “Our 

Supreme Court has recognized that the traditional ‘standing’ paradigm does not apply to the appeal 

of an arbitration award.” Miles v. FOP Lodge #5, 217 A.3d 892, 894 n.2 (Pa. Cmwlth. 2019) 

(citing Kozura v. Tulpehocken Sch. Dist., 791 A.2d 1169, 1172 n.6 (Pa. 2002)). “Instead, standing 

to appeal an arbitration award is one based on contractual rights and must be found in the 

applicable [CBA].” Id. (citing Fraternal Order of Police, Lodge #5 v. City of Philadelphia, 182 

A.3d 1076, 1080 (Pa. Cmwlth. 2018)). 
13

CBA, an individual employee has no standing to request arbitration.”) (citation 

omitted).14 

When determining whether a bargaining unit has standing to pursue a 

grievance on behalf of a retiree, we employ a similar analysis, looking to the terms 

of the CBA: 

[A]lthough the retirees are not part of the current bargaining unit, this 

does not omit them from the benefits bargained for them by a prior 

bargaining unit that negotiated a previous CBA. If the [employer]

violates a provision of a CBA that was in effect when the retiree retired, 

the [u]nion has standing to file a grievance on behalf of the retiree 

against the [employer], depending upon the language of the CBA. 

Hempfield Area Sch. Dist. v. Pa. Lab. Rels. Bd., 920 A.2d 222, 226 (Pa. Cmwlth. 

2007). The CBA there provided the union could initiate a grievance on behalf of 

“persons,” not employees, and thus was broad and encompassed retirees. Id. (citing 

Danville Area Sch. Dist. v. Danville Area Educ. Ass’n, PSEA/NEA, 754 A.2d 1255, 

1262 (Pa. 2000)). 

14 The rationale behind this principle was described as follows:

To view this type of agreement otherwise would lead to chaos and a breakdown in 

the entire scheme of collective bargaining for which the parties have provided and 

contracted. Instead of being able to rely on the disposition of employee grievances 

through the established machinery, the [employer] would face the constant threat 

of attempted individual enforcement through litigation. Union responsibility would 

be diminished and all parties would suffer. For these reasons, most, if not all, 

[u]nion management agreements of any magnitude in force throughout the 

Commonwealth are similarly drafted, with an eye towards reposing enforcement 

responsibility in the labor organization concerned. 

Falsetti v. Loc. Union No. 2026, United Mine Workers of Am., 161 A.2d 882, 894 (Pa. 1960). In 

addition to the rationale cited by the Supreme Court, this Court proffered a second rationale in 

Township of Hellam: “unless the CBA provides otherwise, the individual employee is not a party 

to the CBA and, thus, cannot enforce the rights granted under the CBA.” 722 A.2d at 745.
14

On the other hand, the CBA in Harris v. Borough of West Hazleton (Pa. 

Cmwlth., No. 963 C.D. 2022, filed October 13, 2023),15 appeal denied, (Pa., No. 634 

MAL 2023, filed April 24, 2024), was not as broad, defining a grievant as “any 

individual or group of bargaining unit employees, or their bargaining 

representatives.” Id., slip op. at 5. The trial court held a grievant had to be “an 

individual bargaining unit employee, a group of bargaining unit employees, or their 

bargaining representatives.” Id. On appeal, the borough argued the term 

“individual” should be read apart from the remainder of the phrase, such that an 

individual (whether actively employed or retired), a group of bargaining unit 

employees, or their bargaining representative could pursue a grievance. Id. at 7. We 

rejected this interpretation and determined the retired police officer there could not 

avail himself to the grievance procedure set forth in the relevant CBA because it was 

silent as to whether retired police officers were bound by its grievance procedures. 

Id. at 9. Instead, we held “[t]he grievance process only governs a dispute over 

disability retirement benefits when a police officer’s right to such benefits has yet to 

be determined.” Id. We further explained that the trial court’s interpretation was 

“consistent with the last antecedent rule,” which provides that “when several words 

are followed by a modifying phrase, the language demands that the modifying phrase 

applies as much to the first words as it does to the last.” Id. (citing Summit Twp. 

Indus. & Econ. Dev. Auth. v. County of Erie, 980 A.2d 191, 208 (Pa. Cmwlth. 2009)). 

15 Unreported panel decisions of this Court may be cited for their persuasive value pursuant 

to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b), and Section 

414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
15

Thus, we affirmed the trial court’s interpretation but remanded for a calculation of 

the retired officer’s cost of living adjustment increase to his pension benefits.16 

We reached a similar result in Borough of Dunmore v. Arnone (Pa. Cmwlth., 

No. 783 C.D. 2019, filed March 6, 2020), slip op. at 8, where we held that because 

the CBA provided only for “employees” to grieve and arbitrate, the retired 

firefighters were not subject to the mandatory dispute resolution process contained

in the CBA because they were no longer “employees.” 

Our relatively recent decision in Edgell v. City of Aliquippa, 272 A.3d 1011 

(Pa. Cmwlth. 2022), is particularly informative as it presents somewhat analogous 

facts to those presented here. In Edgell, a retired police officer filed a complaint in 

a common pleas court asserting breach of contract claims against his former 

municipal employer, alleging he did not receive certain payments to use towards the 

purchase of health insurance or retroactive pay increases to which he contended he 

was entitled. His municipal employer filed a preliminary objection, asserting a lack 

of subject matter jurisdiction because the Public Employe Relations Act (PERA)17

and the parties’ CBA set forth mandatory grievance and/or arbitration procedures, 

which he did not pursue. Id. at 1016. The common pleas court ultimately sustained 

the preliminary objection and dismissed the complaint, leading to an appeal to this 

Court. Id. Before this Court, the retired police officer argued the grievance 

procedure was inapplicable to him, as it only applied to employees and he was no 

longer an employee since he retired. Id. at 1016-17. 

16 Although the trial court’s order was not technically a final order disposing of all parties’ 

claims, we granted a petition for permission to appeal the interlocutory order pursuant to 

Pennsylvania Rule of Appellate Procedure 1311(a)(1), Pa.R.A.P. 1311(a)(1). Harris, slip op. at 6.

17 Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
16

To determine whether the retired police officer was required to utilize the 

grievance procedure, consistent with precedent, we looked to the terms of the CBA. 

Id. at 1021. We explained that the CBA there “specifically addressed retirement 

benefits and made reference to ‘retirees’” in the article pertaining to pension 

benefits. Id. at 1020. Moreover, we stated the ordinance setting forth the pension 

plan, which was incorporated into the CBA, also provided that the grievance and 

arbitration provisions of the CBA applied to pension contests. Id. at 1020 n.15. We 

further explained that the CBA provided that “[a]ll grievances which may arise by 

virtue of this [CBA] or otherwise,” except those pertaining to suspension or 

termination, were subject to the grievance procedure set forth therein. Id. at 1020

n.15, 1021. Because the complaint filed alleged payment was not made in 

accordance with the CBA, we determined the exclusive remedy was the grievance 

procedure set forth therein, which was not pursued, and the trial court lacked subject 

matter jurisdiction over the complaint. Id. at 1021.

Although the CBA’s grievance steps provided that an “employee” dissatisfied 

with the disposition of a grievance could seek arbitration, (id. at 1017-18 (quoting 

article XV, section 2 of the applicable CBA)), we nonetheless determined the CBA 

did apply to the retired police officer. In so holding, we distinguished the matter 

from this Court’s memorandum opinion in Borough of Dunmore, stating there, the 

Court only referenced the portion of the CBA that stated the grievance procedure 

referred to “employees,” whereas here, a review of the CBA as a whole indicated an 

intent that such disputes proceed through arbitration. Id. at 1020 n.15. 

Turning to the instant matter, the CBA here provides that “[g]rievances shall

include any and all disputes between a member(s) and . . . [the] City.” (CBA 

§ 41.1.1, R.R. at 438a (emphasis added).) It further provides that to initiate the first 
17

step of the grievance process, “[t]he member, either alone or accomplished by a 

representative of the bargaining unit or the bargaining unit itself, shall present 

the grievance in writing to the Chief of Police within thirty (30) days of its 

occurrence or knowledge of its occurrence.” (CBA § 41.1.2, R.R. at 438a (emphasis 

added).) Step 2 of the grievance procedure also provides that a “member, or the 

bargaining unit representative,” may appeal to the mayor. (CBA § 41.1.3, R.R. 

at 438a (emphasis added).) However, Step 3 only allows the “bargaining unit 

representative” to request arbitration. (CBA § 41.1.4, R.R. at 438a (emphasis 

added).)

Appellant, upon his retirement, was no longer a “member” of the Union. 

Thus, on the face of the grievance provision alone, it appears that Appellant would 

lack standing to pursue the grievance procedure. However, viewing the CBA more 

holistically as we did in Edgell, we conclude Appellant and/or the Union on his 

behalf had standing to challenge the pension calculation. Similar to the CBA in 

Edgell, the CBA here refers to retired police officers in the article concerning 

pensions. (R.R. at 421a.) However, perhaps more persuasive that the CBA was 

intended to confer standing on Appellant, at least for purposes of challenging his 

pension, is that the CBA specifically references Appellant by name as electing Plan 

A in the pension article. (Id. at 422a.)18 If a reference to “retirees,” generally, was 

sufficient to require the retired officer in Edgell to pursue arbitration, the fact that 

the CBA actually identifies Appellant by name in this case likewise does. See 

Coaldale Borough v. Delaney, 177 A.3d 1039, 1044 (Pa. Cmwlth. 2018) (“Given 

18 In fact, the CBA identifies all the officers who elected Plan A and Plan B, and states that 

“[a]ll other officers currently employed” chose Plan C. (R.R. at 421a-23a.) Officers hired after 

January 1, 2002, have a separately calculated benefit, which is to be “made in strict compliance 

with the provisions of the Third Class City [C]ode.” (Id. at 423a.) 
18

that the widow of an eligible member of the police was entitled to file a grievance 

following a determination by the [c]ity’s police pension board in City of Arnold, 

certainly . . . a covered member of the [b]orough’s police pension plan pursuant to 

the [o]rdinance, and a party to the [e]mployment [a]greement, must likewise be 

entitled to arbitrate the matter of his service-related disability pension.”)19 

Furthermore, Appellant was the only remaining participant in Plan A at the time of 

his retirement. (FOF ¶¶ 12, 19.) Thus, like the widow in City of Arnold who, as the 

survivor, was “the only party remaining to dispute the [c]ity’s administration of” 

survivor pension benefits, Appellant was “the only party remaining to dispute [] 

City’s administration of” Plan A pension benefits in dispute here. City of Arnold, 

171 A.3d at 755.

Moreover, although the pension ordinance here, which was incorporated into 

the CBA, does not explicitly state that disputes involving pensions are subject to the 

CBA’s grievance procedure, such as the one in Edgell, it does state that “the City’s 

police pension plan and the distribution of police pension benefits have been 

amended and clarified by various City ordinances, [CBAs,] and arbitration 

19 In Coaldale Borough, a police chief requested a disability pension, which, following a 

hearing, was denied by the borough’s pension board. The police chief did not appeal the denial 

and instead filed a grievance alleging the borough violated the terms of his employment agreement. 

177 A.3d at 1040. The borough sought to quash a request for arbitration pursuant to the grievance 

procedure, arguing the pension board was a local agency subject to the Local Agency Law and 

that the police chief’s only recourse was to appeal the pension board’s decision, which he did not 

do. Id. The trial court agreed that the police chief’s exclusive remedy was under the Local Agency 

Law. Id. On appeal, the police chief argued the trial court erred because the parties’ employment 

agreement mandated arbitration. Id. at 1041. The borough argued that because the police chief 

sought and obtained an adjudication from the pension board, he waived any jurisdiction an 

arbitrator may have had. Id. at 1043. We concluded the CBA between the parties was similar to 

that at issue in City of Arnold and therefore, pursuant to City of Arnold, the pension-related issue 

was arbitrable. Id. at 1044. Thus, we reversed the trial court’s order quashing the arbitration 

request. Id.
19

awards.” (Id. at 453a (emphasis added).) “A court may use evidence of past 

practices between the parties to interpret a CBA.” Fraternal Order of Police, 

Lodge #5 v. City of Philadelphia, 182 A.3d 1076, 1080-81 (Pa. Cmwlth. 2018). The 

grievance provision of the CBA is extremely broad, providing “[g]rievances shall 

include any and all disputes . . . including matters involving interpretation of this 

agreement, all matters of discipline and all matters involving the Heart and Lung 

Act.” (R.R. at 438a (emphasis added).) 

IV. CONCLUSION

In sum, because the grievance procedure set forth in the CBA was the 

exclusive method of challenging Appellant’s retirement benefit, and Appellant had 

standing to do so, common pleas did not err in concluding that it lacked subject 

matter jurisdiction over Appellant’s Petition pursuant to City of Arnold. Stated 

another way, Appellant could not circumvent the grievance and arbitration 

procedure in hopes of obtaining a more favorable result from common pleas.20 

Accordingly, we affirm common pleas’ Order.21

__________________________________________

RENÉE COHN JUBELIRER, President Judge

20 To the extent Appellant argues he was not a party to the arbitration, only the Union was, 

and therefore, he could not appeal it, this does not alter our conclusion that common pleas lacked 

jurisdiction over his Petition. The failure of a bargaining unit to appeal an arbitration award does 

not confer standing on an individual to do so. Krenzelak v. Canon-McMillan Sch. Dist., 566 A.2d 

346, 348 (Pa. Cmwlth. 1989). Instead, Appellant’s remedy is to file an independent action 

asserting a breach of the Union’s duty of fair representation. Id.

21 Given our conclusion that common pleas lacked subject matter jurisdiction over the 

Petition, it is unnecessary to reach Appellant’s other arguments. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Zipovsky, :

Appellant :

 :

v. : No. 1063 C.D. 2023

 : 

City of Hazleton Aggregated Pension :

Board, City of Hazleton, and Mayor :

Jeff Cusat :

O R D E R

NOW, October 8, 2024, the Order of the Court of Common Pleas of Luzerne 

County, entered in the above-captioned matter, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge