Kenneth Zipovsky had been employed as a police officer for the City of Hazleton, Pennsylvania since 1993. The CBA between the Fraternal Order of Police, Power City Lodge No. 18 and the City outlined three different pension options for officers based on their date of hire: Plans A, B, and C, each with a different calculation method. Zipovsky was the only remaining Plan A participant who had not retired as of December 31, 2017. In late 2017, Zipovsky requested that the Hazleton Aggregated Pension Board calculate his pension benefit, which it did. On January 15, 2018, Zipovsky notified the Board and the police chief in writing that he would retire effective at the end of his shift the next day. In his retirement letter, he stated his choice of calculation method and indicated that if a lesser amount was paid, he would accept it without prejudice to pursue the higher amount. Zipovsky began receiving his pension on February 1, 2018.
On February 23, 2018, the Union filed a class action grievance against the City, alleging it was violating the CBA by improperly calculating and paying pension benefits for Zipovsky and certain Plan C participants who had retired. This grievance was heard by an arbitrator, who issued a decision and award on January 17, 2019, determining that the grievance, as it pertained to Zipovsky, was untimely because it was filed outside the 30-day timeframe set forth in the CBA. Zipovsky filed his own appeal with the Board on February 15, 2019. On the same day, he received a response from the Board’s solicitor, which included a letter from the City’s labor counsel, effectively denying his appeal based on the recent award. Zipovsky filed a petition for review with the Court of Common Pleas of Luzerne County on March 15, 2019.
The Common Pleas Court granted judgment in favor of the Board, the City, and the Mayor. Zipovsky appealed this decision.
On appeal to the Commonwealth Court, Zipovsky argued that the Common Pleas Court erred in viewing his petition as one challenging the award, which he claimed he would not have had standing to bring. He contended that he was actually appealing the Board’s denial of his appeal related to its calculation of his pension benefits. He asserted that he had the right to seek review of the Board’s determination under the Local Agency Law. Zipovsky also argued due process requires that he be provided with an opportunity to be heard, which he claimed was not accomplished in arbitration because he was not a party or before common pleas, that then misunderstood the basis of his petition. The City and Board argued that the case was properly governed by the City of Arnold decision, that the appeal was untimely, and that res judicata applied.
The Court first found that Zipovsky would indeed have standing to challenge the pension calculation through the contractual grievance procedure. While noting that Zipovsky, a retiree, was no longer a “member” of the Union, the Court still found that the applicable caselaw provided support for his standing, in part due to the fact that the CBA specifically referenced Zipovsky by name as electing Plan A in the pension article.
Ultimately, the Court held that the grievance procedure set forth in the CBA was the exclusive method of challenging Zipovsky’s retirement benefit. “In sum, because the grievance procedure set forth in the CBA was the exclusive method of challenging Zipovsky’s retirement benefit, and Zipovsky had standing to do so, common pleas did not err in concluding that it lacked subject matter jurisdiction over Appellant’s Petition pursuant to City of Arnold. Stated another way, Zipovsky could not circumvent the grievance and arbitration procedure in hopes of obtaining a more favorable result from common pleas.” The Court reasoned that the issue of Zipovsky’s pension calculation fell exclusively within the Arbitrator’s jurisdiction because the pension benefit was incorporated into the CBA, and both Act 111 and the CBA provided that any disputes may be resolved through arbitration.
Zipovsky v. City of Hazleton Aggregated Pension Board, 326 A.3d 134 (Pa. Cmwlth. Ct. 2024).