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March 4, 2026 Get Citation Alerts Download PDF Add Note

County of Lancaster, PA v. AFSCME District Council 89

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 851 C.D. 2025

• Judges: Covey. Wolf

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (43.1K)

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Combined Opinion

                        by [Anne E. Covey](https://www.courtlistener.com/person/8201/anne-e-covey/)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Lancaster, Pennsylvania, :
Appellant :
:
v. :
: No. 851 C.D. 2025
AFSCME District Council 89 : Argued: February 3, 2026

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MATTHEW S. WOLF, Judge

OPINION BY
JUDGE COVEY FILED: March 4, 2026

The County of Lancaster (County), Pennsylvania, appeals from the
County Common Pleas Court’s (trial court) June 23, 2025 order (entered June 24,
2025) denying AFSCME District Council 89’s (Union) Petition (Petition) to Vacate
Arbitration Award (Award). The County presents three issues for this Court’s
review: whether the trial court erred as a matter of law by: (1) finding that the labor
arbitration panel had jurisdiction to issue the Award; (2) finding that an employer
must engage in impact bargaining when there are unforeseen or unusual
circumstances affecting working conditions; and (3) finding that the temperatures at
the prison were unforeseen or unusual circumstances triggering impact bargaining.1

Background
The Union represents approximately 257 correctional officers (COs)
who work at the County Prison (Prison). The Prison was originally built in 1851.
While some renovations were made in the 1970s and an addition was built in 1992,
there remain Prison sections that have no air conditioning. At the end of 2022, the

1
This Court has reordered the issues for ease of discussion.
collective bargaining agreement (CBA) between the County and the Union expired.
The County and the Union engaged in negotiations and reached an agreement on a
successor CBA in January 2023. In the summer of 2023, the lack of air conditioning
and the heat resulted in inmates contacting the County newspaper to report the
conditions.2
In June 2023, the Union and the County entered into discussions
regarding the working conditions in the Prison due to the heat. On August 25, 2023,
the parties met and discussed the heat in the Prison. The Union and the County each
picked a representative to participate in the discussions. The emails exchanged
between the representatives referenced impact bargaining.3 However, impact
bargaining refers to bargaining that follows from a managerial decision having an
impact on the terms and conditions of employment. See City of Phila. v. Pa. Lab.

2
In addition, there was an outbreak of Legionnaire’s disease which resulted in both inmates
and employees not having access to water inside the Prison during the time that sanitizing measures
were taken.
3
Section 702 of the Public Employe Relations Act, commonly referred to as Act 195,
provides:
Public employers shall not be required to bargain over matters of
inherent managerial policy, which shall include but shall not be
limited to such areas of discretion or policy as the functions and
programs of the public employer, standards of services, its
overall budget, utilization of technology, the organizational
structure[,] and selection and direction of personnel. Public
employers, however, shall be required to meet and discuss on policy
matters affecting wages, hours[,] and terms and conditions of
employment as well as the impact thereon upon request by public
employe representatives.
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.702 (emphasis added). The fluctuation
of temperatures at the Prison does not fall within the County’s matters of inherent managerial
policy.
2
Rels. Bd., 588 A.2d 67 (Pa. Cmwlth. 1991). Here, there was no such managerial
decision.4
On October 6, 2023, the County agreed to the Union’s following
suggestions to deal with the heat in the prison: (1) the County would provide to each
bargaining member: five moisture wicking t-shirts, five long sleeve shirts, two hats
(the employee will have the option of selecting a baseball-type hat or knit hat, or a
combination of both); (2) during the summer months, a program was put in place by
which lockdowns were no longer an authorized sanction for inmate misconduct
(instead, COs were to utilize other sanction methods in an effort to curb misconduct,
e.g., commissary restrictions, cleaning details, etc. - this restriction was lifted on
September 1, 2023), in an effort to develop a more uniform methodology, the County
would commit to meet with the Union and discuss a plan for implementation the
following summer; (3) the County also provided the following to Prison staff during
the summer of 2023 and would continue to do so during warm weather events:
Gatorade, fans, an auxiliary officer scheduled for the purpose of offering cold drinks,

4
The Dissent maintains that because the Panel also referred to impact bargaining, that it
had made a finding relative to jurisdiction. However, the Panel expressly stated that the parties
engaged in impact bargaining “as to this issue[,]” specifically referencing “the temperature
fluctuations for all employees within the [Prison][,]” not as a result of a managerial decision, as
the Dissent contends. Reproduced Record at 65a. The Panel did not address jurisdiction anywhere
in its decision or Award. In order to trigger impact bargaining, four elements are necessary: (1)
the employer must lawfully exercise its managerial prerogative; (2) there must be a demonstrable
impact on wages, hours, or working conditions, matters that are severable from a managerial
decision; (3) the union must demand to negotiate these matters following management’s
implementation of its prerogative; and (4) the public employer must refuse the union’s demand.
See Lackawanna Cnty. Detectives’ Ass’n v. Pa. Lab. Rels. Bd., 762 A.2d 792 (Pa. Cmwlth.
2000); see also City of Phila. v. Pa. Lab. Rels. Bd., 588 A.2d 67 (Pa. Cmwlth. 1991) (the city had
an obligation to impact bargain where the implementation of the first responder program effected
the firefighters’ wages, hours and working conditions). Here, there was no managerial decision
impacting the employees’ wages, hours, or working conditions. Rather, the County and the Union
were discussing the working conditions in the Prison due to the summer heat and offering possible
suggestions to deal with the heat.

3
permitted approved t-shirts, and an ice machine.5 See Reproduced Record (R.R.) at
150a-152a.
On November 17, 2023, the Union wrote to the County stating: “This
is to advise you that [the Union] is submitting this dispute to a panel of arbitrators
[(Panel)] as provided in Section 805 of the Public [E]mploye Relations Act
[(]PERA[), commonly referred to as Act 195].”6 R.R. at 115a. On June 18, 2024,
the Panel held a hearing. On September 12, 2024, the Panel issued the Award in
favor of the Union. Specifically, the Award continued the previously agreed-to
suggestions discussed above, and added the following measures for bargaining unit
employees employed at the Prison from May 1st until September 30th (Summer) of
each year, or until such time as the employees are relocated to the new Prison
facility:

a. Effective as of the date of this Award, if the need to
mandate [sic] an employee arises, the employee shall be

5
The County rejected the Union’s following suggestions: (1) double time for all hours
worked when the outside temperature is over 80 degrees or under 50 degrees, retroactive to June
1, 2023; and (2) two exhaustion days per year, over and above other types of leave. The County
countered by recommending existing personal leave requirement modifications. Currently,
requests for personal leave usage must be made no more than 10 days and no less than 3 days in
advance of the intended time off. The County offered to reduce the notice requirement for 2 of
those days (or 16 hours) per year to no more than 10 days and no less than 24 hours in advance of
the intended time off. Requests for personal leave using this shortened period would be designated
as weather conditions relief days. This modification to personal leave usage requests would remain
in place until such time as the COs are performing their duties in a climate-controlled facility.
From Memorial Day to Labor Day up to two COs will be permitted to be off for personal leave
per shift, per calendar day, provided that at least one of the COs is using a weather conditions relief
day. Depending upon the weather before Memorial Day and/or after Labor Day, the Warden may
expand this time period. She would provide notice as soon as practicable if doing so. Outside of
that period (unless expanded by the Warden), in an effort to avoid unnecessary mandated or
scheduled overtime to backfill shifts, CBA Article 13, Section 6 would apply, and only one person
per shift would be permitted to use personal leave, even if it is a weather conditions relief day.
The Union rejected the County’s suggestions.
6
43 P.S. § 1101.805 (relating to binding arbitration for guards).

4
paid in accordance with the [CBA] and, in addition, will
be provided with eight (8) hours of compensatory time.
b. The compensatory time earned during this timeframe
may be used for any reason; provided, however, the
employee shall provide the County with at least 24 hours’
notice prior to utilizing the compensatory leave.
c. Any compensatory time earned pursuant to Paragraph
2(a) that remains unused as of September 30th of the year
in which it was earned, shall be paid out at the appropriate
rate.
d. For the period covering the Summer of 2023 and
Summer of 2024 (through the date of the Award),
retroactive compensatory leave shall be awarded as
follows:
i. Any bargaining unit member employed at the
Prison as of the date of the Award shall receive 30
hours of compensatory leave;
ii. Any bargaining unit member employed at the
Prison who was hired as of September 30, 2023,
and remains employed at the Prison as of the date
of the Award, shall receive an additional 30 hours
of compensatory leave;
iii. The compensatory time awarded as part of this
Subsection (d) may be used for any reason;
provided, however, the employee shall provide the
County with at least 24 hours’ notice prior to
utilizing the compensatory leave[;]
iv. Compensatory leave awarded by the within
Subsection (d) must be utilized no later than May
1, 2025, at which time it will be paid out at the
appropriate rate.

R.R. at 66a-67a.7 On October 11, 2024, the County filed the Petition in the trial
court. On June 23, 2025, the trial court denied the Petition. The County appealed
to this Court.
7
Arbitrator Gedd Edward Schweikert, IV, wrote a partial Dissent, stating:

5
Discussion
Initially, this Court has explained:

Interest arbitration awards issued pursuant to Act 195 . . .
are subject to review under the narrow certiorari standard.
See Fraternal Order of Police, Lodge No. 5 v. City of
Phila[.], 725 A.2d 206 (Pa. Cmwlth. 1999). Courts
reviewing Act 195 interest arbitration awards are confined
to the following areas: (1) the jurisdiction of the arbitrator;
(2) the regularity of the proceedings; (3) an excess of the
arbitrator’s powers; and (4) deprivation of constitutional
rights.

Cnty. of Berks v. Teamsters Local 429, 305 A.3d 1243, 1251-52 (Pa. Cmwlth. 2023)
(footnote omitted).

[A] plenary standard of review should govern the
preliminary determination of whether the issue involved
implicates one of the four areas of inquiry encompassed
by narrow certiorari, thus allowing for non-deferential
review - unless, of course, that preliminary determination
itself depended to some extent upon arbitral fact-finding
or a construction of the relevant CBA. . . . In other words,
in the absence of the noted caveat, there is no reason in
law or logic why a court should defer to the arbitrator on
questions of whether jurisdiction existed, whether the
proceedings were regular, whether there was an excess in
the exercise of the arbitrator’s powers, or whether
constitutional rights were deprived.

I am compelled to issue a partial dissent to this Award because I am
of the opinion that applying the terms of this Award to May and
September is too broad. Limiting the applicability of the Award to
June through August would have been more appropriate. In
addition, as the goal of the Award is to provide additional relief time,
it is my opinion that the award of additional compensatory relief
leave should have been prospective only, not retroactive.
R.R. at 69a.
6
City of York v. Int’l Ass’n of Firefighters, Local Union No. 627, 35 A.3d 822, 825
(Pa. Cmwlth. 2011) (quoting Town of McCandless v. McCandless Police Officers
Ass’n, 901 A.2d 991, 1000-01 (Pa. 2006) (emphasis added; citation omitted)).
The County argues that the Panel did not have jurisdiction to issue the
Award. Specifically, the County contends that, under Section 805 of PERA, an
interest arbitration panel only has jurisdiction if there is an impasse in collective
bargaining; if there is no impasse, then PERA does not bestow jurisdiction upon an
arbitration panel. The County further asserts that it had no duty to engage in impact
bargaining since it had not made any managerial decisions regarding the working
conditions in the Prison due to the heat; thus, because it had no duty to engage in
impact bargaining, there could be no impasse in collective bargaining that granted
the arbitration panel jurisdiction under PERA.
The Union rejoins that it is the County’s own legal error upon which
the County contends it is entitled to have the Award vacated on appeal - it ostensibly
erred by engaging in bargaining and proceeding to interest arbitration although it
now maintains it had no legal obligation to do so. The Union further retorts that the
County waived its right to argue that the Panel exceeded its powers by not raising
any purported legal issues to the Panel in the first instance. The Union insists that
even if it had not waived this argument, the Panel did not exceed its authority or
power in any respect.
Preliminarily, “[t]he parties’ good-faith negotiations . . . are irrelevant
to the issue of the [] [P]anel’s subject matter jurisdiction. It is well established that
‘[t]he issue of subject matter jurisdiction cannot be waived and may be raised at any
time by the parties or by the court sua sponte.’” Borough of Gettysburg v. Teamsters
Local No. 776, 103 A.3d 389, 397 (Pa. Cmwlth. 2014) (citation omitted) (quoting
Hous. Auth. of Pittsburgh v. Van Osdol, 40 A.3d 209, 213 (Pa. Cmwlth. 2012)).

7
Accordingly, because the County could not waive the jurisdiction issue, this Court
will address that claim herein.
In City of York, the City of York (City) raised a similar issue as to
whether the arbitration panel had jurisdiction to hear the dispute because there was
no impasse in collective bargaining. Specifically, the City argued therein that there
was an enforceable CBA and therefore there was no impasse; thus, the arbitration
panel was convened improperly, and it did not have jurisdiction over the matter.
Unlike the current case, however, the jurisdiction issue was raised
before the arbitration panel. The City of York Court concluded:

Here, with the [u]nion’s assent, the City placed the
arbitrability issue squarely before the [arbitration p]anel.
After considering the parties’ evidence, the [arbitration
p]anel specifically found it had jurisdiction to decide the
matter because “no binding contract between the parties
hereto occurred.” Under McCandless, where the
[arbitration p]anel’s determination of its jurisdiction was
based on the [arbitration p]anel’s own arbitral fact-finding,
the [arbitration p]anel’s determination is entitled to
substantial deference by the [c]ourts. Moreover, in such a
case, the [c]ourts “are bound by the [arbitration panel’s]
determination . . . even though [this Court] may find [the
arbitration panel] to be incorrect.” [Pa.] State Police v.
[Pa.] State Troopers Ass[’n], 840 A.2d 1059, 1062 (Pa.
Cmwlth. 2004).

City of York, 35 A.3d at 825-26 (internal record citations omitted). Accordingly, the
City of York Court reversed the trial court’s order vacating the arbitrator’s award for
lack of jurisdiction.8
This Court has explained:

Subject matter jurisdiction is “a prerequisite to the
exercise of the power to decide a controversy.” Pickford
v. Pub. Util. Comm’n, 4 A.3d 707, 713 (Pa. Cmwlth.

8
Here, because it is undisputed that the parties did not raise the jurisdiction issue before
the Panel, no deference was due to the Panel’s decision.
8
2010). The inquiry posed by the jurisdiction prong of
narrow certiorari is whether an arbitration panel “act[ed]
in that general class of controversies that the law
empowers it to consider.” [City of Phila. v. Int’l Ass’n of
Firefighters, Local 22, 999 A.2d [555,] 564 [(Pa.
2010)] . . . . To determine whether an arbitration panel
had subject matter jurisdiction to render an award, the
court looks to the Pennsylvania Constitution and the
enabling statute, Act [195], that created an arbitration
panel. [Id].
Article 3, [s]ection 31 of the Pennsylvania Constitution,
P[A]. C[ONST.] art. III, § 31, authorizes the General
Assembly to “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. . . .”
[Emphasis added.] The phrase “in accordance with law”
in [a]rticle 3, [s]ection 31 [of the Pennsylvania
Constitution] “means that the arbitrators, in conducting
their hearings and making an award . . . must adhere to the
mandates of the enabling legislation.” City of Wash[.] v.
Police Dep’t of Wash[.], . . . 259 A.2d 437, 442 ([Pa.]
1969).

Borough of Gettysburg v. Teamsters Local No. 776, 103 A.3d 389, 395 (Pa. Cmwlth.
2014).
Here, the Panel was convened pursuant to Section 805 of PERA, which
provides:

Notwithstanding any other provisions of [PERA] where
representatives of units of guards at prisons . . . have
reached an impasse in collective bargaining and
mediation as required in [S]ection 801 of [PERA, 43 P.S.
§ 1101.801,] has not resolved the dispute, the impasse
shall be submitted to a panel of arbitrators whose
decision shall be final and binding upon both parties . . . .

43 P.S. § 1101.805 (emphasis added).

9
It is undisputed that the parties were not in the process of collective
bargaining at the time the Panel was convened, as the County and the Union had
reached an agreement on a CBA in January 2023; thus, there was not and could not
have been an impasse in collective bargaining. Further, since the County did not
make any managerial decisions regarding the heat-related working conditions in the
Prison, there was not and could not be an impact on the terms and conditions of
employment. Therefore, because the parties had an enforceable CBA as of January
2023, the Union could not rely upon Section 805 of PERA to convene an arbitration
panel. Accordingly, the Panel was convened improperly, and it did not have
jurisdiction over this matter.9

Conclusion
For all of the above reasons, the trial court’s order is reversed.

---

ANNE E. COVEY, Judge

Judge Dumas did not participate in the decision in this matter.

9
The Dissent proffers that it is offensive to due process to allow the County to undo the
proceedings below on jurisdictional grounds and that it will discourage employees from trusting
an employer that is apparently willing to negotiate and arbitrate in good faith and be bound by the
result, because the County presented the jurisdictional issue after it lost at arbitration. However,
either an arbitration panel has jurisdiction or it does not. The parties’ and or the Panel’s
presumably mistaken belief that the Panel had jurisdiction does not alleviate the inherent lack of
jurisdiction in the first instance. “Nor may the parties confer subject matter jurisdiction on a . . .
tribunal by agreement or stipulation.” Pennsylvanians for Union Reform v. Ctr. Cnty. Dist. Atty’s
Off., 139 A.3d 354, 356 (Pa. Cmwlth. 2016). Accordingly, this Court is constrained to reverse the
trial court’s order denying the County’s Petition.
Given this Court’s disposition of the first issue, the remaining issues are moot.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Lancaster, Pennsylvania, :
Appellant :
:
v. :
: No. 851 C.D. 2025
AFSCME District Council 89 :

ORDER

AND NOW, this 4th day of March, 2026, the Lancaster County
Common Pleas Court’s June 23, 2025 order (entered June 24, 2025) is reversed.

---

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Lancaster, Pennsylvania, :
Appellant :
:
v. : No. 851 C.D. 2025
:
AFSCME District Council 89 : Argued: February 3, 2026

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MATTHEW S. WOLF, Judge

DISSENTING OPINION BY
JUDGE WOLF FILED: March 4, 2026

I respectfully dissent because, contrary to the learned Majority, I
believe the arbitration panel had jurisdiction to enter an award. Under the Public
Employe Relations Act (PERA),1 the existence of a collective bargaining agreement
(CBA) does not preclude further bargaining. Here, and as found by the arbitration
panel below, the County of Lancaster (County) was required by PERA to engage in
impact bargaining with the union regarding the heat-related working conditions in
the prison, they in fact engaged in impact bargaining, and they reached an impasse.
That course of events vested jurisdiction in the arbitration panel under PERA. I
would affirm the trial court’s order upholding the arbitration award.
I agree with the Majority that this is a narrow certiorari scope of review
matter with our Court. Cnty. of Lancaster v. AFSCME Dist. Council 89 (Pa.
Cmwlth., No. 851 C.D. 2025, filed March 4, 2026), slip op. at 6-7. As the Majority

1
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 - 1101.2301.
notes, when reviewing whether the arbitration panel had jurisdiction, we defer to the
arbitration panel’s factfinding if “that preliminary determination [i.e., jurisdiction]
itself depended to some extent upon arbitral fact[]finding.” Id. (quoting City of York
v. Int’l Ass’n of Firefighters, Local Union No. 627, 35 A.3d 822, 825 (Pa. Cmwlth.
2011)).
The record shows the arbitration panel found facts to establish its
jurisdiction. This dispute arose from uninhabitability and dangerous work
conditions in the overly-hot-and-humid, ancient County prison, which caused a
widely reported Legionnaire’s disease outbreak in the summer of 2023. See R.R.
148a-98a (evidence submitted to arbitration panel). This was after the parties had
formed a new CBA in January 2023. The arbitration panel found as fact: “Prior to
the [arbitration] hearing, the parties engaged in impact bargaining as to this issue but
were unable to reach resolution. The [C]ounty offered potential resolutions, some
of which were implemented prior to the arbitration and remain currently in effect.”
Id. at 65a.
The Majority states:

It is undisputed that the parties were not in the process of
collective bargaining at the time the Panel was convened,
as the County and the Union had reached an agreement on
a CBA in January 2023; thus, there was not and could not
have been an impasse in collective bargaining. Further,
since the County did not make any managerial decisions
regarding the heat-related working conditions in the
Prison, there was not and could not be impact on the terms
and conditions of employment.”

Cnty. of Lancaster, slip op. at 10. I respectfully disagree for two reasons.
First, the Majority ignores the matter of fact, as found by the arbitration
panel, that the parties actually engaged in impact bargaining, i.e., that a managerial

MSW-2
decision had impacted the workforce which gave rise to a right and duty to
negotiate. The Majority’s statement that no managerial decision occurred belies the
record, which shows managerial decisions made in response to heat concerns
(agreement to give employees 5 moisture wicking t-shirts; 5 long sleeve shirts; 2
hats; a cooler stocked with Gatorade, Powerade, and water; hallway and individual
fans; ice machines; and use of fire exhaust system for improvised ventilation). See
R.R. at 66a (listing resolutions to heat concerns implemented by the County and
ordered to remain in place). The managerial decision here was to not fully address
the uninhabitability and dangerous work conditions in the prison which led to a
disease outbreak and obviously affects working conditions. The Union pressed the
issue and during negotiations the parties’ sophisticated counsel expressly called
these negotiations “impact bargaining.” See R.R. 150a-53a (emails from
counsel). That “impact bargaining” reached an impasse. That gave the arbitration
panel jurisdiction under Section 805 of PERA, 43 P.S. § 1101.805 (“[W]here
representatives of units of guards . . . have reached an impasse in collective
bargaining . . . , the impasse shall be submitted to a panel of arbitrators . . . .”).
The Majority says no collective bargaining could happen here because
a CBA was already in place. “Collective bargaining is the performance of the mutual
obligation of the public employer and the representative of the public employes to
meet at reasonable times and confer in good faith with respect to wages, hours and
other terms and conditions of employment, or the negotiation of an agreement . . . .”
Section 701 of PERA, 43 P.S. § 1101.701 (emphasis added). So, under PERA,
collective bargaining includes impact bargaining. See County’s Br. at 13 (“The
second category of collective bargaining is called impact bargaining.”).
“When a managerial decision has an impact on the terms and conditions

MSW-3
of employment, the parties are required [under Section 702 of PERA2] to engage
in impact bargaining.” Pa. State Sys. of Higher Educ. v. Pa. Lab. Rels. Bd., (Pa.
Cmwlth., No. 2159 C.D. 2011, filed Aug. 15, 2012), slip op. at 11, 20122012 WL
3860033, appeal denied, 69 A.3d 604 (Pa. 2013).3 “Bargaining to impasse, of
course, is the prerequisite to the initiation of interest arbitration.” Michael G. Lutz
Lodge No. 5, of Fraternal Ord. of Police v. City of Phila., 129 A.3d 1221, 1230 (Pa.
2015). Based on the statute and precedent, I agree with the County’s statement of
the law: “If the parties engage in impact bargaining but reach an impasse in
attempting to mitigate the negative impacts that flow from the employer’s decision,
correctional officers have the same right to engage in the binding interest arbitration
under Section 805 of PERA to resolve that impasse.” County’s Br. at 15. The
Majority’s focus on the existence of the CBA does not account for the fact that
impact bargaining can occur even when a CBA is in place and did occur here. That
gave the panel jurisdiction under Section 805 of PERA.
Second, the Majority’s decision presents a due process issue. The
County could not lose. The County might have prevailed at arbitration. Instead, it

2
Section 702 states:

Public employers shall not be required to bargain over matters of inherent
managerial policy, which shall include but shall not be limited to such areas of
discretion or policy as the functions and programs of the public employer, standards
of services, its overall budget, utilization of technology, the organizational structure
and selection and direction of personnel. Public employers, however, shall be
required to meet and discuss on policy matters affecting wages, hours and terms
and conditions of employment as well as the impact thereon upon request by public
employe representatives.

43 P.S. § 1101.702.
3
Unreported opinions of this Court filed after January 15, 2008, may be cited for their
persuasive value. Pa.R.A.P. 126(b); 210 Pa. Code § 69.414 (a).
MSW-4
participated in “impact bargaining” and arbitration without ever raising a
jurisdictional objection, and it lost. Then the County injected a jurisdictional
argument after the fact in an attempt to void the entire proceedings. To allow that
to stand, as the Majority does, violates not only the procedure set out in PERA but
also fundamental concepts of fairness.4 As explained earlier, the facts found below
and the law of PERA established the arbitration panel’s jurisdiction. Under those
circumstances, it is offensive to due process to allow the County to undo the
proceedings below on jurisdictional grounds because it dislikes the result. That will
discourage employees from trusting an employer that is apparently willing to
negotiate and arbitrate in good faith and be bound by the result, which process PERA
is meant to encourage. See Off. of Admin. v. Pa. Lab. Rels. Bd., 598 A.2d 1274,
1278 (Pa. 1991) (Off. of Admin. II) (noting “the general policy in favor of arbitration”
of labor disputes).5

4
I fully agree with the Majority that the arbitration panel’s jurisdiction is a nonwaivable
issue. See Cnty. of Lancaster, slip op. at 7-8. We should address the issue, but must do so
consistently with the statute and precedent, which requires deference to arbitral facts that
determine jurisdiction. See id., slip op at 6 (standard of review).
5
Related to this point, I do not read the Majority as accepting or addressing the following
argument by the County: that “there can be, of course, no impasse in collective bargaining on
issues over which the employer is not required to bargain.” County’s Br. at 23 (quoting
Commonwealth v. Pa. Lab. Rels. Bd., 549 A.2d 240, 241 (Pa. Cmwlth. 1988), rev’d by Off. of
Admin. II, 598 A.2d 1274 (Pa. 1991)); accord County’s Reply Br. at 4-5. The one Pennsylvania
decision the County cites for that proposition was reversed on appeal. See Off. of Admin II, 598
A.2d at 1278. I find no other Pennsylvania authority for that proposition. Because I conclude that
the parties were required by law to impact bargain in this case, I would not reach the issue of
whether the County’s apparent voluntary engagement in impact bargaining might result in an
impasse that triggers Section 805.

MSW-5
For these reasons, I dissent from the Majority’s decision and I would
affirm the trial court’s order upholding the arbitration panel’s award.

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MATTHEW S. WOLF, Judge

MSW-6