The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lower Salford Township, :
Appellant :
: No. 1444 C.D. 2021
v. :
: Submitted: August 5, 2022
Jeffrey A. Wright :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 22, 2023
Lower Salford Township (Township) appeals from the November 17,
2021 order entered by the Court of Common Pleas of Montgomery County (trial
court) ordering that the Township and Jeffery A. Wright (Wright) proceed with
grievance arbitration, without prejudice to the Township’s right to raise the issue of
arbitrability with the arbitrator. Upon review, we affirm.
I. FACTUAL AND PROCEDURL HISTORY
This is the fourth time this case has been before the Court. See Wright
v. Lower Salford Township Municipal Police Pension Fund (Pa. Cmwlth., No. 788
C.D. 2012, filed June 19, 2013) (Wright I); Wright v. Lower Salford Township
Municipal Police Pension Fund, 136 A.3d 1085 (Pa. Cmwlth. 2016) (Wright II); and
Wright v. Lower Salford Township Municipal Police Pension Fund (Pa. Cmwlth.,
No. 103 C.D. 2019, filed December 20, 2019) (Wright III).
Wright is a former Township police sergeant who was injured in the
line of duty in 1996. On April 17, 2002, the Municipal Police Pension Law,
commonly known as Act 600,1 was amended by the Act of April 17, 2002, P.L. 239,
No. 30 (Act 30), to require a disability pension benefit for police officers
permanently disabled in the line of duty.2 Approximately one month after the
enactment of Act 30, on May 16, 2002, Wright was honorably discharged by the
Lower Salford Township Board of Supervisors (Board) because it was determined
that he was physically unable to perform his job as a police officer. On January 6,
2003, the Board amended the Lower Salford Township Code by adopting Ordinance
2003-2 (Police Pension Ordinance), which incorporated Act 30’s requirements. The
Police Pension Ordinance, which conditioned eligibility for Act 30 disability
pension benefits upon eligibility of benefits payable for permanent injuries sustained
in service under the Township’s long-term disability insurance policy, states:
In the case of the payment of pensions for permanent
injuries incurred on or after April 17, 2002, the amount of
the payments shall be calculated at the rate of 50% of the
member’s salary at the time the disability was incurred,
provided that any member who receives benefits for the
same injuries under the Social Security Act . . . shall have
his or her disability benefits offset or reduced by the
amount of such benefits. Determination of eligibility of
disability benefits shall be based on the eligibility of
benefits payable for permanent injuries incurred in
service under the Township’s long-term disability
policy and shall be payable commencing at the later of
termination of benefits under the long-term disability
1
Act of May 29, 1956, P.L. (1955) 1804, No. 600, as amended, 53 P.S. §§ 767-778.
2
Prior to the enactment of Act 30, municipalities were not required to pay police officers
a disability pension. Act 30 amended the Municipal Police Pension Law to create such an
obligation.
2
policy as a result of attaining the maximum age under
the disability policy or upon the officer’s attainment of
his superannuation retirement date.
Lower Salford Township, Pennsylvania, Code § 29-3(B) (Police Pension Ordinance)
(emphasis added).
In 2006, Wright filed a two-count complaint against the Township, the
Trustees of the Lower Salford Township Police Pension Fund (Township
defendants), and two long-term disability insurance carriers, The Standard Insurance
Company (Standard) and Highmark Life Insurance Company (Highmark). In Count
I, against the Township defendants, Wright asserted that he was entitled to an Act
30 disability pension benefit of 50% of his salary, retroactive to May 16, 2002 (date
of his honorable discharge). In Count II, Wright asked the trial court to compel the
two insurance companies (which provided long-term disability insurance to the
Township) to pay long-term disability benefits to Wright under the terms of a policy
that was allegedly in effect at the time Wright was honorably discharged. On
December 1, 2009, Wright accepted a $5,000 settlement from Standard, and
voluntarily dismissed “with prejudice” Count II of the complaint.
In a decision dated April 4, 2012, the trial court granted the Township
defendants’ motion for judgment on the pleadings, concluding that the Township
defendants were not obligated to pay Wright an Act 30 disability pension benefit.
The trial court reasoned that the Board did not adopt the Police Pension Ordinance
incorporating Act 30’s provisions until January 2003, after Wright’s honorable
discharge on May 16, 2002, and, therefore, Wright’s permanent injury occurred prior
to effective date of the Ordinance. Wright appealed. In Wright I, we emphasized
that the Police Pension Ordinance states that it applies to “payment of pensions for
permanent injuries incurred on or after April 17, 2002,” i.e., the effective date of Act
3
30. Because the trial court did not address that issue, we remanded to the trial court
to resolve outstanding factual issues material to the determination of whether Wright
was entitled to the Act 30 disability pension benefits, namely the date of Wright’s
“permanent” injury.
On remand, the issue before the trial court was whether Wright incurred
a permanent injury on or after April 17, 2002. After a remand hearing, the trial court
determined that Wright incurred a permanent injury on January 23, 1996, the date
he was first injured while trying to arrest a suspect. The trial court again entered
judgment in favor of the Township defendants, and Wright appealed.
At issue in Wright II, was the definition of “permanent disability” in
Act 30, and whether Wright was totally and permanently disabled on or after, rather
than before, the effective date of the Police Pension Ordinance implementing the Act
30 amendments. We determined that, for purposes of the Act 30 disability pension
benefits, Wright was totally and permanently disabled from performing police work
for the Township on the date the Board passed the motion honorably discharging
him “based on [his] inability to perform duties due to a physical disability,” which
amounted to an official, administrative adjudication of Wright’s total and permanent
physical disability. 136 A.3d at 1092-93. Because it was still unclear whether
Wright was entitled to Act 30 disability pension benefits, we remanded the case to
the trial court to decide whether Wright met certain technical requirements, e.g.,
years of credited service, filing deadlines, and requirements for submission of
information, etc., for benefits under the Township’s long-term disability policy, a
prerequisite under the Pension Plan Ordinance. See Pension Plan Ordinance, § 29-
3(B) (“determination of eligibility of [Act 30] disability [pension] benefits shall be
based on the eligibility of benefits payable for permanent injuries incurred in service
4
under the Township’s long-term disability policy.”); id. at 1094. On remand, the
trial court held a bench trial3 and concluded, based on the evidence presented, that
Wright had satisfied all of the technical requirements (i.e., application deadlines) to
qualify for benefits under the Highmark long-term disability policy. In its January
10, 2019 order, the trial court concluded that Wright was, therefore, entitled to
payment from the police pension fund of a properly calculated Act 30 disability
pension payment from the time of reaching the superannuation date, at the rate of
50% of salary. Wright III, slip op. at 4. Both Wright and the Township defendants
appealed. Wright asserted that the trial court erred in concluding that the Act 30
disability pension benefit would “commence” when he reaches the “superannuation
retirement date,” rather than the date on which he was honorably discharged and
determined to have suffered a permanent work injury. Id., slip op. at 5. The
Township contested the trial court’s findings and conclusions insofar as it
determined that Wright made a timely claim with Highmark within the filing
deadline of the long-term disability benefits policy. Id., slip op. at 4.
In Wright III, addressing the Township’s appeal, we affirmed the trial
court on the issue of the timeliness of Wright’s Highmark application for long-term
disability benefits but noted that there remained outstanding legal and factual issues,
aside from the technical requirements, as to whether Wright was entitled to long-
term disability benefits from Highmark such that he would qualify for an Act 30
disability pension benefit, that needed to be resolved in a separate lawsuit involving
Highmark (issues such as preclusion, settlement and release, negligence,
comparative negligence, and the law surrounding insurance denials and an insured’s
statutory and common law obligations). Id., slip. op. at 7. Regarding Wright’s
3
On remand, there were issues surrounding the timeliness of Wright’s long-term disability
benefits application with Highmark, which the trial court resolved in favor of Wright.
5
appeal, we explained that it was premature to decide when the Act 30 disability
pension benefits would commence because the question of whether Wright was
entitled to long-term disability benefits under the Highmark policy remained
unresolved. Again, pursuant to the Township’s Police Pension Ordinance, whether
Wright could collect an Act 30 disability pension benefit from the Township’s
pension fund was contingent on his eligibility to receive long-term disability benefits
under the Highmark policy. See Pension Plan Ordinance, § 29-3(B) (“determination
of eligibility of [Act 30] disability [pension] benefits shall be based on the eligibility
of benefits payable for permanent injuries incurred in service under the Township’s
long-term disability policy.”).
Following our decision in Wright III, Wright sent a letter to the
Township demanding that the Township commence payment of a properly
calculated Act 30 disability pension from the Police Pension Fund. When the
Township refused, with an explanation that Wright III clearly contemplated “either
Highmark being made a defendant once again or the institution of a new lawsuit
including Highmark as a defendant,” Wright made a demand for grievance
arbitration under the 2018 Police Collective Bargaining Agreement between the
Township’s Police Department and the Township (2018 CBA). (Reproduced
Record (R.R.) at 47a-48a, 53a-54a, 373a-74a.) Wright reasoned that this Court in
Wright III affirmed the trial court’s determination that he was entitled to a properly
calculated Act 30 disability pension payment and that he had met all of the technical
requirements for the disability pension benefit under Act 30 and the Police Pension
Ordinance. Id.
The Township then commenced this action, seeking an injunction to
stay and prevent the arbitration proceedings Wright had attempted to initiate (Count
6
I) and a declaratory judgment declaring that there is no collective bargaining
agreement between the Township and Wright to arbitrate Wright’s 2002 disability
pension claim (Count II). Id. at 3a-11a. The parties filed cross-motions for
summary relief. On November 17, 2020, the trial court denied the Township’s
motion, granted Wright’s motion, and ordered the parties to proceed with grievance
arbitration under the 2018 CBA, without prejudice to the Township to raise the issue
of arbitrability in that proceeding. (Trial Court Order, 11/17/20, at 1.)
The Township now appeals. It argues that Wright, who ceased being a
police officer 16 years before the 2018 CBA went into effect, is precluded from
filing a grievance and proceeding to arbitration under the 2018 CBA because he is
not an active police officer with the Township and the Township did not agree to
arbitrate the disability pension claim with Wright in the 2018 CBA. The Township
contends that Wright is not a party to the 2018 CBA because he retired 16 years
before it was executed, and the 2018 CBA, by its terms, only applies to claims by
members of the Police Department as of the date of the 2018 CBA’s execution and
thereafter. The Township points out that Article I, Section 1 of the 2018 CBA
specifically provides in this regard:
The term “police officer(s),” as used within this
Agreement, shall include all present or future persons
employed as full-time police officer(s) hired through the
procedures established in conformity with [T]he Second
Class Township Code[4] and other applicable United States
and Pennsylvania law. . . .
(R.R. at 64a) (emphasis added).
Thus, argues the Township, the 2018 CBA, by its plain language, could
not have applied to police officers like Wright who retired prior to its execution. The
4
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701.
7
Township further contends that the Police Pension Ordinance governing disability
pension benefits is tied to eligibility under the long-term disability insurance policy
of the Township and that Wright III clearly contemplates a new civil action which
includes Highmark as a defendant, not a grievance arbitration where Highmark
would not be a party.
Wright, in turn, argues that the trial court unequivocally held in its
January 10, 2019 order that he met all of the technical requirements for the disability
pension benefit under Act 30 and the Police Pension Ordinance and that he is entitled
to a properly calculated disability pension payment from the time of reaching the
superannuation date, at the rate of 50% of his salary. He notes that this Court, in
Wright III, affirmed the trial court. He contends, therefore, that he was correct in
pursuing the grievance and arbitration procedure as a result of the Township’s failure
to grant him a contractual benefit, a disability pension, in violation of the trial court’s
orders directing the commencement of payment of the Act 30 disability pension. He
argues that the Township’s failure to comply with the trial court’s January 10, 2019
order and Wright III (which he claims established his entitlement to a disability
pension) is a grievable event under the 2018 CBA. He argues that the “Township’s
misguided refusal to commence paying a disability pension” is “based on a single
paragraph in the unreported Memorandum [Opinion] of the Commonwealth Court.”5
5
Wright is referring to this Court’s explanation of Wright’s need to proceed with additional
litigation involving Highmark in order to determine Wright’s eligibility for long-term disability
benefits, which, in turn, will determine his eligibility for Act 30 disability pension benefits. Wright
apparently erroneously believes that once the explanation by this Court in its Wright III opinion is
ignored (because it was an unpublished decision), the trial court’s January 10, 2019 order directs
the Township to calculate and commence Act 30 disability pension payments (even though Wright
III precisely held that the January 10, 2019 order did not so require). The fact that the Wright III
decision was unpublished has nothing whatsoever to do with whether the parties themselves must
heed the decision. Further, contrary to Wright’s contention, the fact that Wright met the
(Footnote continued on next page…)
8
(Wright’s Br. at 9, 13.) Wright also argues that the trial court’s November 17, 2021
order did not dispose of all issues but, in fact, continued the litigation by submitting
issues to arbitration, and, therefore, the Township’s appeal should be quashed as
interlocutory.
II. DISCUSSION
A. Whether the Township’s Appeal Should be Quashed
Before we address the merits of the Township’s issues, we first address
whether we have jurisdiction over this appeal.6 The trial court opines that the
Township’s appeal should be quashed because orders compelling parties to go to
arbitration are interlocutory as they force the parties into, rather than out of, court,
citing Commonwealth ex rel. Kane v. Philip Morris, Inc., 128 A.3d 334 (Pa. Cmwlth.
2015). (Trial court opinion, 1/26/22, at 2.) We cannot agree with the trial court’s
analysis.
Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 341 provides
that an appeal may be taken as of right from any final order of a trial court. A “final
order” includes an order that “disposes of all claims and of all parties.” Pa. R.A.P.
341(b)(1). An order is final, and not interlocutory, “if it prevents a party from
“technical” filing requirements to obtain disability benefits under the Highmark long-term
disability policy, does not end the matter. Legal and factual issues still remain, as we pointed out
in Wright III, surrounding Wright’s eligibility to receive long-term disability benefits under the
Highmark policy that cannot be resolved without Highmark as a party. Once those issues are
litigated and resolved, and only then, according to the Police Pension Ordinance, can Wright’s
eligibility for the Act 30 disability pension benefit be determined. It appears, however, that Wright
has completely disregarded this aspect of our decision in Wright III and relies solely on the order
affirming the trial court.
6
“The question of the appealability of an order goes to the jurisdiction of the Court
requested to entertain the question.” Fried v. Fried, 501 A.2d 211, 212 (Pa. 1985).
9
presenting the merits of its claim at trial.” Noll by Noll v. Harrisburg Area YMCA,
643 A.2d 81, 83 (Pa. 1994).
In Brown v. D. & P. Willow Inc., 686 A.2d 14 (Pa. Super. 1996),7 the
Superior Court permitted the appellant to appeal an order requiring arbitration
because the appellant was literally “out of court” after being required to have her
“fee dispute” heard by a local bar association committee, rather than a court of
record. Id. at 15, n.1. The court held that the order contained “sufficient trappings
of finality” to justify an immediate appeal. Id. Likewise in the present matter,
because all relief requested by the Township has been rejected, the order below
contains sufficient trappings of finality to allow an immediate appeal.
Here, the Township commenced its equity action for the purpose of
seeking (1) a declaration that Wright is not a party to the 2018 CBA, and (2) an
injunction to enjoin the grievance arbitration process. (R.R. at 9a-11a.) The trial
court’s November 17, 2021 order finally denied both claims in the Township’s
complaint, effectively putting the Township out of court on the issue of whether
arbitration was improper, and by ordering the parties to arbitrate. The November
17, 2021 order prevented the Township from having a trial on whether arbitration
should be enjoined by requiring that very same arbitration to proceed. Thus, the
order fully disposed of the Township’s claims, and therefore, qualifies as a final
order under Pa. R.A.P. 341.
Moreover, an order which denies a request to enjoin certain conduct,
as was done by the trial court in its November 17, 2021 order, is an interlocutory
7
Although Superior Court cases are not binding on this Court, such cases may offer
persuasive precedent where they address analogous issues. Commonwealth v. Monsanto Co., 269
A.3d 623, 679 n.20 (Pa. Cmwlth. 2021). The Superior Court case cited herein is relied on for its
persuasive value.
10
matter specifically authorized for appeal as of right by Pa. R.A.P. 311(a)(4). Pa.
R.A.P 311(a)(4) states that an appeal may be taken as of right from an order refusing
an injunction. Accordingly, the Township’s appeal is not interlocutory. Wright’s
application to quash the Township’s appeal is denied.8
B. Whether the Trial Court Erred in Ordering the Parties to Proceed
with Grievance Arbitration
The Township contends that the trial court erred in ordering the parties
to proceed with grievance arbitration to allow an arbitrator to decide if the Township
is in violation of the 2018 CBA by failing to commence payment of an Act 30
disability pension to Wright. We disagree.
It is well settled that whether the dispute between the Township and
Wright is in fact a grievance that can be arbitrated under the 2018 CBA must, at least
initially, be left to an arbitrator to decide. In Township of Sugarloaf v. Bowling, 759
A.2d 913 (Pa. 2000), which involved a grievance dispute under Act 111,9 a part-
time, probationary police officer, who was not hired as a full-time officer, filed a
grievance under a collective bargaining agreement. Sugarloaf Township (township)
filed a complaint in equity for injunctive relief, requesting that the trial court stay
the arbitration proceedings. Id. at 914. The trial court determined that as a
probationary employee, the officer was not covered by the collective bargaining
agreement and was not entitled to proceed to arbitration over his grievance, and
8
We find the trial court’s reliance on Kane to be misplaced. There, the trial court orders
compelling multistate arbitration and denying single-state arbitration did not force the parties out
of court, but merely directed the manner of arbitration, and, thus, did not trigger the right of
immediate appeal under the Uniform Arbitration Act, 42 Pa. C.S. § 7361.
9
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1–217.12. Act 111 applies
to police and firefighting personnel.
11
granted the township’s motion to stay the arbitration proceedings. Id. The officer
appealed to this Court, which vacated and remanded the matter to the trial court to
address whether the officer was a member of the township’s police force. On appeal,
the Supreme Court affirmed the vacation of the trial court’s order, albeit on different
grounds, holding that pursuant to Act 111, the question of whether a matter is
arbitrable must first be determined by the arbitrator, not the court.
Here, the Township argues, based on plain language contained in the
2018 CBA, that (1) the 2018 CBA applies to “all present and future persons
employed as full-time police officer(s)”10; (2) Wright is not a party to the 2018 CBA;
and (3) it was not required to arbitrate with Wright. These are averments that the
dispute is not covered by the 2018 CBA, i.e., they present an issue of arbitrability
that must be presented to an arbitrator for determination.
Accordingly, the trial court properly concluded that it had no authority
to decide the issues presented in the Township’s complaint and that they were for
the arbitrator to decide in the first instance.11
10
2018 CBA, Article I, Section 1 (Definitions). (R.R. at 64a.)
11
That said, we are compelled to clarify for the record that, contrary to Wright’s position
that the Township has violated this Court’s order, this Court in Wright III did not direct the
Township to commence the disability pension benefit to Wright. This Court is deeply troubled
and perplexed by Wright’s insistence to the contrary. As we explained in Wright III, even though
Wright met the technical requirements for long-term disability benefits, the only way to resolve
the matter of Wright’s eligibility for the police pension benefit is to resolve Wright’s eligibility for
long-term disability benefits, and this requires further litigation with the presence and participation
of Highmark. Suffice it to say, this cannot be accomplished in grievance arbitration between the
Township and Wright. In declining to address the issues Wright raised on appeal (proper
commencement date of the police pension benefits), we explained that the issue was premature
and “only comes into the legal picture when, or if, the parties reach an agreement, or there is a
judicial ruling obligating a party or parties, to pay long-term disability benefits to Wright. Until
then, the issue that Wright raises is an abstract one, based upon a set of circumstances that do not
yet exist and may never exist.” Id., slip op. at 7.
(Footnote continued on next page…)
12
The order of the trial court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
Although we affirmed the trial court’s January 10, 2019 order, we did so with that
qualification. It is simply unreasonable for Wright to glean from our attendant order affirming the
trial court that we intended to hold that he was entitled to immediate disability pension payments.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lower Salford Township, :
Appellant :
: No. 1444 C.D. 2021
v. :
:
Jeffrey A. Wright :
ORDER
AND NOW, this 22nd day of August, 2023, the November 17, 2021
order entered by the Court of Common Pleas of Montgomery County is hereby
AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge