Deputy sheriffs from Allegheny County are not "police officers" for the purposes of collective bargaining under Pennsylvania’s Act 111, the Commonwealth Court has ruled.

The divided en banc panel’s conclusion is opposite from the one announced by the Supreme Court in the same case last year.

The latest opinion in Allegheny County Deputy Sheriffs’ Association v. Pennsylvania Labor Relations Board comes after the Allegheny County government made a constitutional argument on which the justices declined to rule last year. However, the panel’s dissenters and the deputy sheriffs’ attorney argued the majority did not base its ruling on the county’s specific argument. Instead, they claimed, the majority’s reasoning was based on an argument not advanced before the court — the basis for a likely second appeal to the state’s high court.

The attorney representing the deputy sheriffs, who said he was "shocked" by the panel’s decision, said he was planning on filing another appeal to the state Supreme Court and possibly filing an application for expedited consideration.

The Commonwealth Court’s May 2 ruling stands in opposition to a March 2012 Supreme Court decision, in which a majority of the high court decided to extend Act 111 collective bargaining rights to the deputy sheriffs based on amendments to the Crimes Code and the Municipal Police Education and Training Law (MPETL). Those amendments defined deputy sheriffs in a second-class county as police officers, the court noted.

In a previous ruling, the Commonwealth Court had decided that the sheriffs did not meet a "judicially and administratively created" two-pronged test designed to determine whether law enforcement personnel other than traditional police officers fall within the ambit of Act 111. Because they did not, the Commonwealth Court had ruled, the deputy sheriffs’ bargaining rights would be controlled by the Pennsylvania Public Employee Relations Act (PERA).

On remand from the Supreme Court to address the Allegheny County government’s argument, a majority of the most recent Commonwealth Court panel said the provisions of the Crimes Code and MPETL that were amended to designate the second-class county deputy sheriffs as police officers failed to meet the requirements of Article III, Section 32, of the Pennsylvania Constitution on "Special Laws."

Specifically, the majority pointed to the state Supreme Court’s decision in DeFazio v. Civil Service Commission of Allegheny County in reasoning that the deputies from Allegheny County, the only second-class county in Pennsylvania, would be treated differently than other deputies in terms of their collective bargaining rights.

In DeFazio, the Supreme Court ruled that Allegheny County legislation directed at the local sheriff’s office was unconstitutional under Article III, Section 32, because it bore "no fair or reasonable relationship to the object of the legislation" — the sheriff — and bore no relationship to the distinction of Allegheny County as a second-class county.

"DeFazio teaches us that the deputy sheriffs may not be treated differently from the other similar deputy sheriffs in the commonwealth merely because they are within a certain class of county, and the distinction created by this legislation bears no fair or reasonable relationship to the object of the legislation, to the distinction of Allegheny County as a county of the second class, or to the deputy sheriffs’ duties," President Judge Dan Pellegrini wrote for the majority.

"The provisions of the Crimes Code and the MPETL that designate the deputy sheriffs as police officers fail to comport with the requirements of Article III, Section 32, of the Pennsylvania Constitution."

Pellegrini was joined by Judges Renee Cohn Jubelirer and Mary Hannah Leavitt.

"As a result, deputy sheriffs in counties of the second class are not police officers for whom collective bargaining rights are conferred by Act 111 and, like all other deputy sheriffs in the commonwealth, their collective bargaining rights are derived from Section 805 of the PERA," Pellegrini added.

Judge P. Kevin Brobson issued a six-page dissenting opinion, joined by Judge Bernard L. McGinley. The dissenters said the majority’s holding was inconsistent with the Supreme Court’s decision.

Brobson acknowledged that while the county’s constitutional analysis could be appropriate to resolve doubt over legislative intent, the high court had cleared the issue up last year, he said.

"Here, however, in light of the Supreme Court’s decision in this matter, the meaning of police officer for purposes of Act 111 is no longer in dispute," Brobson said. "It includes the deputy sheriffs. We cannot now, even under the guise of the Pennsylvania Constitution, ascribe a contrary legislative intent."

When the Supreme Court decided the case on March 26, 2012, Justice Seamus P. McCaffery said in a footnote to the majority’s opinion that the court would leave undecided the constitutional argument of the intervenor because the Commonwealth Court had not addressed it below.

In reversing the Commonwealth Court, the high court set aside a Pennsylvania Labor Relations Board finding that established deputy sheriffs as court employees rather than police.

The PLRB had previously denied a petition from the sheriffs’ association in which the association attempted to represent the county’s deputy sheriffs in an effort to exercise collective bargaining rights.

"Contrary to the conclusions of the Commonwealth Court and the PLRB, the controlling factor in this case is that the General Assembly, in two separate pieces of legislation, specifically singled out for definition as police officers deputy sheriffs of counties of the second class," McCaffery said. "No other deputy sheriffs in this commonwealth have been so defined by the General Assembly."

Chief Justice Ronald D. Castille filed a nine-page dissent arguing deputy sheriffs are not police officers but rather state employees covered by the PERA. Castille disputed the majority’s conclusion that the PLRB had committed an error of law in denying the association’s petition.

Justice J. Michael Eakin dissented separately, while ex-Justice Joan Orie Melvin did not participate in the ruling.

Joshua M. Bloom of Joshua Bloom & Associates in Pittsburgh is representing the deputy sheriffs’ association.

Bloom called the Commonwealth Court opinion "nothing short of shocking" and suggested it could, if allowed to stand, jeopardize the thousands of arrests made by deputy sheriffs in Allegheny County.

Asked if Allegheny County Court of Common Pleas judges would release prisoners based on a court opinion on a separate piece of civil litigation, Bloom said: "I think this court’s opinion places the validity of those arrests in question. … If this is the law of the land, yes."

Michael H. Wojcik of the Allegheny County Law Department, an attorney representing the county, did not return a call requesting comment.

Samuel B. Ickes, an attorney of the PLRB, did not return a call.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 18-page opinion in Allegheny County Deputy Sheriffs’ Association v. Pennsylvania Labor Relations Board, PICS No. 13-1043, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •