Commonwealth v. Association of Pennsylvania State College & University Faculties , 46 Pa. Commw. 608 ( 1979 )

Opinion by

Judge Mencer,

The Commonwealth of Pennsylvania (Commonwealth) has filed a petition for review of an arbitration award directing it to afford relief to Donald R. Bortz, a member of the Association of Pennsylvania State College and University Faculties (Union).

Bortz is a professor with the East Stroudsburg State College. In 1976, Bortz was asked to assume the administrative position of Director of the Educational Development Center (EDC). Bortz was reluctant to accept the position because, under the provisions of the collective bargaining agreement between the Commonwealth and the Union, the Director of EDC was not entitled to certain benefits to which teaching professors were entitled. However, Bortz accepted the position upon receiving assurances that he would be permitted to retain these benefits.

Bortz was subsequently denied benefits to which he would have been entitled had he remained a teacher, and the Union filed a grievance on his behalf, pursuant to the grievance provisions of the collective bargaining agreement. The grievance proceeded to arbitration, where the arbitrator ruled that Bortz had no right to the benefits under the terms of the agreement. Nevertheless, the arbitrator held that Bortz was entitled to relief on the theory of promissory estoppel, as set forth in the Restatement of Contracts §90 (1932). The Commonwealth’s petition for review in this court followed.

It is by now axiomatic that “an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). When an arbitrator relies not upon the collective bargaining agreement to support an award but upon the Restatement of Contracts, it is apparent that he has exceeded his auhority. Cf. In re Arbitration Between Ringgold Area School District, Donora Senior High School and Ringgold Education Association, 24 Pa. Commonwealth Ct. 266, 356 A.2d 842 (1976) (award based upon alleged oral agreement not drawn from “essence” of contract). That is precisely what the arbitrator did in this case, and we must therefore reverse the award.

In its brief to this Court, the Union appears to argue that certain language in the agreement must be read to confer upon the arbitrator authority to base an award on equitable principles extraneous to the agreement. The case was not submitted to the arbitrator on that basis, nor did the arbitrator ever purport to so interpret the language upon which the Union now relies. While parties may agree to confer extraordinary powers upon an arbitrator, whether they have so agreed is a matter of interpretation which must be presented to the arbitrator and ruled upon prior to the exercise of such powers. This Court will not, of course, pass upon issues which were neither ■raised nor decided below.

Accordingly, we enter the following

Order

And Now, this 25th day of October, 1979, the decision of Arbitrator Alexander M. Freund in the above captioned matter, dated September 27,. 1978, is hereby-vacated.