IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Masciotti, : Appellant : : v. : : No C.D Lower Heidelberg Township : Argued: March 10, 2014 BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: March 28, 2014 John Masciotti (Masciotti) appeals from an order of the Court of Common Pleas of Berks County (trial court) sustaining the preliminary objections filed by Lower Heidelberg Township (Township) and dismissing his complaint seeking compensation for unpaid sick and vacation time that he earned while serving as a Township police officer and a declaration that he is entitled to a police pension when he reaches age 55. We affirm. In his complaint, Masciotti alleges that he was employed as a Township police officer from July 1994 until July 31, 2012, when he retired pursuant to the Police Pension Fund Act, also known as Act 600, 1 and the Lower 1 Act of May 29, 1956, P.L. (1955) 1804, as amended, 53 P.S

2 Heidelberg Township Ordinance (Ordinance) allowing him to retire early and to begin receiving a limited vested [pension] benefit when he reaches age 55. The amended complaint also alleges that he accrued 1,332 hours of earned but unpaid vacation and sick leave over the course of his employment for which he should be paid $39, pursuant to Article VIII, Section 5 of the Collective Bargaining Agreement (Agreement), 2 and that on July 23, 2012, through counsel, he submitted a letter to the Chief of the Township Police demanding to be paid for his accrued vacation and sick leave, to which the Township failed to respond. 3 The complaint goes on to allege that by not paying him for accrued vacation and sick leave, the Township breached the Agreement and violated the Wage Payment and Collection Law (Law). 4 The complaint also seeks a declaration that Masciotti is entitled to partial pension benefits under Act 600 beginning at age 55 and an order directing the Township to set aside funds sufficient to satisfy its pension obligations. 2 The Agreement between the Township and the Lower Heidelberg Township Police Officers Association provides: Any Police Officer who is separated in good standing from the services of the Employer or who retires prior to tasking [sic] his or her accrued vacation shall be compensated in a lump sum for wages in an amount equal to the accrued vacation he or she has accumulated up to the time of separation or retirement. Agreement art. VIII, 5. Article X, Section 4 provides the same arrangement with regard to sick leave. 3 Article XXII sets forth the procedure for adjustment of grievances. 4 Act of July 14, 1961, P.L. 114, as amended, 43 P.S

3 The Township filed preliminary objections seeking dismissal of the complaint because Masciotti (1) lacked standing to pursue a breach of contract claim because he was not a party to the Agreement; (2) could not pursue a wage payment and collection action against the Township because it did not qualify as an employer under the Law; and (3) lacked standing to seek declaratory relief adjudicating his pension rights because his claim does not become ripe until the year Agreeing with the Township s contentions, the trial court sustained the preliminary objections and dismissed Masciotti s complaint. Raising the same issues as he did before the trial court, Masciotti filed this appeal. 5 Regarding the trial court s dismissal of his breach of Agreement claim for lack of standing, Masciotti acknowledges that members of a bargaining unit normally lack standing to sue their employers directly regarding disputes over benefits contained in collective bargaining agreements, and that those disputes must be resolved through the grievance process. See Ziccardi v. Commonwealth, 500 Pa. 326, 332, 456 A.2d 979, (1982). However, Masciotti argues that the Township has waived its right to argue that the dispute should be resolved under the Agreement s grievance procedures because the Township failed to comply with those procedures when the Chief of Police did not respond to his July 5 Our review of a common pleas order sustaining preliminary objections and dismissing a complaint is limited to determining whether an error of law was committed or an abuse of discretion occurred. Muncy Creek Township Citizens Committee v. Shipman, 573 A.2d 662, 663 (Pa. Cmwlth. 1990). Preliminary objections should be sustained only when it appears with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id. 3

4 23, 2012 letter. Because the Township frustrated the grievance process, he contends that he is permitted to bring this breach of contract claim. Article XXII, Section 2 of the Agreement requires that an aggrieved employee submit such grievance in writing to the Police Commissioner, with a carbon copy to the Township s Board of Supervisors within ten (10) calendar days after the grievant knew or reasonably should have known of the event giving rise to the grievance. The Police Commissioner must then meet the employee to discuss his grievance, and if the matter is not resolved, issue a written decision. In the instant matter, Masciotti, who was duly represented by counsel, submitted a letter dated July 23, 2012, to the Township s Police Chief, W. Thomas Deiterich. He did not submit the letter to the Police Commissioner or send a carbon copy of the grievance to the Board of Supervisors as required by Article XXII, Section 2. In other words, he did not perfect the grievance, and the Township cannot be held responsible for the Commissioner s failure to respond to a grievance he did not receive. 6 Even if he had filed the grievance properly and the Township did not answer, he still would not have the right to file a breach of contract claim but would be required to file a mandamus action to have the Township answer the grievance. 6 Similar to Ziccardi, we do not reach the situation here where an aggrieved employee alleges and shows by specific facts that the employer s bad-faith conduct resulted in a failure to process a grievance in accordance with the internal procedures of a collective bargaining agreement. See Ziccardi, 500 Pa. at 332, 456 A.2d at

5 Next, Masciotti alleges that the trial court erred in dismissing his claim for wages under the Law. Masciotti acknowledges that we have previously held that the Law s definition of employer 7 does not include municipal corporations, see, e.g., Philipsburg-Osceola Education Association v. Philipsburg- Osceola Area School District, 633 A.2d 220 (Pa. Cmwlth. 1993); Huffman v. Borough of Millvale, 591 A.2d 1137 (Pa. Cmwlth. 1991), but he asks us to reconsider those cases because the statutory definition of employer includes corporations without distinguishing between private and public or municipal ones. agencies, we held that: In Huffman, in finding that the Law does not apply to governmental Municipal corporations such as the Borough are not included within the definition of employer, and we, as an appellate court, cannot expand the definition of employer to include them. [4] There is a clear distinction between municipal and private corporations and, if the legislature wished that municipal corporations be covered by the Law, it could have easily included them. We apply the legal maxim, expressio unius est exclusio alterius, which directs that the mention of a specific matter in a statute implies the exclusion of others not mentioned. We analogize Section 102 of the Public Utility Code, 66 Pa. C.S. 102, which defines corporations to include [a]ll bodies corporate, joint-stock companies, or 7 Section 2.1 of the Law, added by the Act of July 14, 1977, P.L. 82, 43 P.S a, defines employer as including every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth. 5

6 associations, domestic or foreign, their lessees, assignees..., but shall not to include municipal corporations... Later, the Public Utilities Law defines municipal corporations as [a]ll cities, boroughs, towns, townships, or counties of this Commonwealth. Huffman, 591 A.2d at 1139 & n.4. Because we find that reasoning still valid, we decline to revisit those cases and agree with the trial court that the Township is not subject to the provisions of the Law. Finally, Masciotti contends that the trial court erred in dismissing his claim for declaratory relief that he will be entitled to a pension under Act 600 and the Ordinance when he reaches age 55 because his claim is ripe as he is seeking permitted declaratory relief that will entitle him to his pension benefits when his pension does ultimately go into pay status. However, while the Declaratory Judgments Act, 42 Pa. C.S , enables a complainant to seek declaratory relief, one limitation on a court s ability to issue a declaratory judgment is that the issues involved must be ripe for judicial determination, meaning that there must be the presence of an actual case of controversy. Pennsylvania State Lodge v. Commonwealth, 692 A.2d 609, 613 (Pa. Cmwlth. 1997), aff d, 550 Pa. 549, 707 A.2d 1129 (1998). As such, a pleading seeking declaratory relief must establish that an actual controversy exists between the parties. Id. 6

7 Masciotti has alleged in his complaint that he participated in a pension plan sponsored by the Township under Act 600, pursuant to which he is entitled to a vested, partial pension benefit when he reaches the age of 55. Masciotti has not alleged in his complaint that the Township disputes that he will be entitled to such benefits when his pension goes into pay status or that he has applied for a pension and it has been denied. What Masciotti essentially seeks is an advisory opinion and as our Supreme Court has stated: The presence of antagonistic claims indicating imminent and inevitable litigation coupled with a clear manifestation that the declaration sought will be of practical help in ending the controversy are essential to the granting of relief by way of declaratory judgment. Only where there is a real controversy may a party obtain a declaratory judgment. A declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic. Gulnac v. South Butler School District, 526 Pa. 483, , 587 A.2d 699, (1991) (internal citations omitted). Because Masciotti has not alleged facts which demonstrate that he has suffered an actual and immediate harm, he has presented no case or controversy between the parties for which declaratory relief can be provided. 7

8 Accordingly, we affirm the trial court s order sustaining the Township s preliminary objections and dismissing Masciotti s action with prejudice. DAN PELLEGRINI, President Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Masciotti, : Appellant : : v. : : Lower Heidelberg Township : No C.D O R D E R AND NOW, this 28 th day of March, 2014, the order of the Court of Common Pleas of Berks County dated June 21, 2013, at No , is affirmed. DAN PELLEGRINI, President Judge

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