A deeply split Commonwealth Court has upheld a change to the way Philadelphia police officers historically received court notices, allowing the city to leave notices via voicemail or email messages rather than requiring in-person or telephone notice.

The court en banc ruled 4-3 to uphold a Philadelphia trial judge’s ruling upholding an arbitration panel’s award requiring all city police officers to provide either an email address or telephone number at which to receive court notices.

In Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, the FOP argued that the arbitration panel overstepped its bounds by altering the notice procedure in its 2011 award because the purpose of that award was to address issues with the implementation of a 2009 award, which said nothing about the method by which officers receive notice.

The FOP called the 2011 award an “‘arbitral frolic,’” but Judge Anne E. Covey, writing for the majority, disagreed.

“The 2011 award continued the personal and telephone notice practices, and merely extended the notification options to include existing technology in the form of voicemail and email where the officer expressly chooses those means,” Covey said. “There is no requirement that an officer pay to have voicemail or email solely dedicated to court notices.”

Instead, Covey sided with the trial judge, who found that the arbitration panel did not require the city to perform an illegal act and that the 2011 award also did not mandate an action unrelated to a bargainable term or condition of employment.

Covey said the 2009 award stated that officers who are not given at least 48 hours’ notice of court appearances, other than preliminary hearings, are entitled to overtime pay.

According to Covey, the 2009 award also relaxed the requirement that Philadelphia police officers be Philadelphia residents.

“If one is required to have notice and notice commences at a specific point in time for the purpose of calculating premium overtime pay, then what constitutes notice is fundamentally intrinsic to the court notice provision,” Covey said in a footnote, adding, “As the trial court pointed out, the testimony before the panel made it clear that ‘the 2009 award changed the terms and conditions of the parties’ [collective bargaining agreement], which necessitated a change in policy for the [police] department to effectuate the implementation of the residency and 48-hour notice provisions in a way that was both operationally and fiscally sound.’”

Covey was joined by President Judge Dan Pellegrini and Judges Robert Simpson and Mary Hannah Leavitt.

But Judge P. Kevin Brobson dissented, saying the arbitration panel “lacked jurisdiction to alter a decades-old practice of the city of Philadelphia, which required the city to provide personal (actual) notice of hearings to police officers.”

“As the panel majority observed, electronic notification may very well be an efficient and more cost-effective mechanism to provide court notices to police officers,” Brobson said. “But in my view it is such a significant change in longstanding policy within the city and so rebalances the responsibilities of the city vis-à-vis its police officers with respect to ensuring notice and attendance at court proceedings, that it must be raised properly in the context of Act 111—i.e., bargained and, if necessary, arbitrated.”

Brobson added that a move to electronic notices was never part of the city’s plan to implement the 2009 award and that the issue of electronic notification was not even raised by the city until just before a hearing on the implementation of the award was held pursuant to a request by the FOP.

Brobson was joined by Judge Bernard L. McGinley.

In a footnote, Covey addressed Brobson’s dissent, saying the changes to the notice procedure “do not thwart the department’s ‘decades-old’ notification practice, but rather they enhance it for the benefit of both parties.”

“Based on the increased use of cellular telephones, the availability of call forwarding and elimination of land lines, and the ability to receive emails via cellular telephones, there exist a higher probability of ensuring notice to the subpoenaed officer which is the purpose of the CBA’s notification requirement,” Covey said. “Ensuring that timely notice has been delivered is also increased through cellular telephone voicemails, which service is included at no additional charge, and the ‘request receipt’ email setting.”

Judge Patricia A. McCullough, meanwhile, filed a separate dissenting opinion, arguing that, although she agreed with Brobson that the portion of the 2011 award changing the notice procedure should be vacated, Brobson’s argument was based on the “flawed opening premise” that the panel lacked jurisdiction to alter the procedure.

“This is contrary to the presumption of correctness and legality that has been consistently ascribed to interest arbitration by the case law of this commonwealth and invites efforts to expand the precept of ‘narrow certiorari’ which necessarily limits court oversight of arbitration decisions,” McCullough said.

According to McCullough, Brobson’s reasoning “needlessly complicates what should be the straightforward conclusion of this case—when a party waives consideration of an issue in interest arbitration proceedings, it should not be able to relitigate that issue through the back door by way of implementing the interest arbitration award.”

Counsel for the city, Shannon Druri-Lanessa Farmer of Ballard Spahr in Philadelphia, said she was pleased the court agreed with her client that the arbitration panel properly retained jurisdiction and that the notice procedure was properly updated.

Counsel for the FOP, Thomas W. Jennings of Jennings Sigmond in Philadelphia, said his client is still deciding whether to appeal the decision.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 38-page opinion in Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia, PICS No. 13-3422, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •