*1
Pennsylvania, Appellee. *2 President before Argued September Judges Judge Craig, Doyle, MacPhail, Crumlish, Jr., and Palladino. Barry, Colins Schaub, D. him, G. Robert with Jr., Whelley, John Rosenn, Greenwald, & for appellants. Jenkins Stevens, Curtin Sweet, N.
Charles Raul L. him, with and Heefner, appellee. Lupas, Anthony J. by 6, 1987:
Opinion April Barry, Judge (Asso- Association The Wilkes-Barre Area an injunction issuance of ciation) appeals Court of Pleas Common of Luzerne County prohibiting further seleсtive strikes against Wilkes-Barre Area School District (District).
The collective between bargaining agreement the District 31, on expired August 1984. After several to reach a new attempts agreement failed, a series of selective strikes were called Assоciation. The parties agree strikes ques- tion involved the dates following and times: 1,
November 1984—all day; November 1984—two hours at the beginning of the day;
November minutes at the be- 1984—thirty ginning day;
December 1984—ten minutes the after- noon at the end of the school day; *3 5, December 1984—ten minutes at the begin- of the ning day; 13,
December 1984—ten minutes at the begin- of the ning day; 17,
December 1984—five minutes at the begin- of the ning day.
The court found that the Association notified the Dis- trict strikes, of all the one, the first except 8:00 by p.m. on the evening 20, to each prior strike. On November 1984, the School Board a resolution that adopted stating any partial selective strike a would be considered full strike and would result in the of all schools for closing the entire did, This day. result in the closing all district 5, schools on November December 13 and 17. Schools remainеd 19 on November open (the day before the resolution was passed) on December 4 when a ten minute strike took at the end place school day. the summarizing total strike we activity note that there were five days November (including 1) which the during schoоls were closed for the entire day; day; beginning and, a a at ten a two strike the hour day. a at minute strike the,end petition a filed On the District December February injunction. seeking preliminary On a hearing, very the 1985, at the of a extensive conclusion enjoining Assoсiation trial an order court issued engaging The lat- in further selective strikes. court from stay pending appeal. In the a er denied a motion for timely appeal a to this meantime the Association filed hearing along expedited Court with motion for Aрril 3, summary was denied on reversal. The motion followingday or- Court a second 1985. The this issued quash argument listing der the Districts motion argument appeal merits. the same time as on by addressing begin merits of the We our review motion, assertion that is based on the Districts which injunction was final rather issued court argues essentially preliminary. that than The District quashed appeal because this should be post prior filing trial relief a motion for did not file Although correctly appeal. *4 ing any granted or should other time that the relief preliminаry. final rather are unconvinced than We argument be con- must the Districts that the a full and ex- after sidered final because it issued was hearing merits of the haustive and was based on Pittsburgh controversy. v. In Pitts- School District of 365, burgh Teachers, 373, Pa. 486 406 Federation of A.2d our Court (1979), Suprеme expressly similar stated: rejected reasoning specifically which Although hearing took place prior to issuance of the was a preliminary injunction that fact is irrelevant lengthy hearing, totally whether are entitled ato determining appеllants final were never notice hearing. Appellants given that conducted was a hearing to be being final There was no hearing. between agreement it was a to be final parties hearing. Without notice and in the absence of proper scheduled agreement to consider the hearing propriety can- issuing preliminary injunction not be considered later to have been a final hear- ing. (Emphasis original.) We conclude that this is us. appeal before properly However, we do not find that the motion to dismiss was and, therefore, in bad not, faith pursued we will as re- assess quested, costs and fees the Dis- attorneys against trict.
Next, we note that
this case is
although
technically
moot, we will not dismiss it on that
because it
ground
“involves a
clearly
that is
question
сapable
repetition
but
likely
evade review if the normal rules on moot-
ness are
Commonwealth
applied.”
v.
Bargaining
Joint
Committee
Union,
the Pennsylvania Social Services
Pa.
398 A.2d
1003 (1979).
the merits of
reviewing
this
our
is
appeal
scope
limited
ato
dеtermination of whether any apparently
reasonable
existed in
grounds
of the relief
support
and,
the trial
granted
court
unless it
is
that no
plain
such
existed
grounds
or
the rules of law relied upon
were
palpably wrong
we must
clearly inapplicable,
affirm. Bristol
Township
v.
School District
Bristol
14 Pa.
Township,
Common-
wealth Ct.
Under Section amend- P.L. Act, Act of July Relations as: ed, 43 P.S. is defined a strike §1101.301(9), in for duty, action to failing report [Concerted the from stop- the wilful absence ones position, work, slowdown, the abstinencе or of page full, and or faithful whole in part from the of of the duties employment performance proper or co- the inducing, influencing purpose or in the compensa- conditions ercing change or privileges, obligations tion or the rights, added.) (Emphasis employment. the selective
The trial court concluded properly within the issue in this case come which are at strikes if and bemay of this enjoined legislation purview or threat danger and present create a clear they 43 P.S. heаlth, the public. and welfare of safety However, deter- court erred in its §1101.1003. did, strikes present mination the public. and welfare of the trial made findings Out the thirty-one cited as court, may arguably possible be following for the injunction: grounds an extended 22. strikes for peri- That selective od, made education- hours), up cannot (1 ally. finds,
24. from preponderance The Court evidence, and mentally that handicapped are es- unfavorably impacted, retarded students strikes. with extended selective pecially re-runs fоr 25. That the cost of bus making because of students non-public strikes, will be selective expenses [sic] District.
26. That selective strikes the Dis- would usurp tricts prerogative operating managing schools, to Article XXII of The Collec- contrary tive Bargaining Agreement.
27. That for the Association have the prerog- *6 аtive to call selective strikes the every day upon elects, terms the Committee would not dis- only District, the but would be rupt also to injurious the students’ educational needs.
28. That for the District to the educa- adjust tional schedules to meet the Association’s needs strikes, the for selective would be not confusing District, to the but to the students also to the parents.
30. That selective strikes as the proposed by Association are to the determination disruptive and administration of the Wilkes-Barre Area School District.
31. That selective strikes as proposed by health, a threat present safety and welfare of public.
As
as there is
long
evidence in the
any
record
them,
these
supporting
are
findings
us
binding upon
even
though they may
contrary
of
preponderance
v.
Ross
testimony.
Philadelphia
Federation
Teachers,
8 Pa. Commonwealth Ct.
periods lost selective during strikes could not be concern the courts We certainly appreciate made up. сannot be time which educational to lost with respect How- the school year. the remainder of during made up conclusion its ever, reasonable we cannot accept finding courts (the and ten minutes hours a loss of two due to five lost days additiоnal to the does not apply clear- can be days instructional those lost strike because would present of strike) made as in other any type ly up health, and welfare safety threat to the is for that it not prudent stated Ross students. We of days exaсt number to designate this Court will time produce instructional the lost which point its own decided on par- case is to be threat. Each such insufficient are simply this case facts. The facts of ticular law a as a matter of establish this reason. and welfare оf Fact No. Finding unable to accept We are also decision. courts as a reasonable ground supporting *7 dis- extent, the school strike, usurps a certain to Any its schools. managing of operating tricts prerogative the issuance permit doеs not the legislature simply But were the If that based on ground. of injunctions have strike would to case, statutory right the undoubted teachers. The con- school little to meaning very dis- fusion, transportation and added costs disruption 25, 27, 28 and 30 are Fact No. Findings cussed in strike nature of any very inherent inconveniences for enjoining not grounds are clearly proper they District v. School strike. Armstrong this particular Association, 5 Pa. Common- Armstrong A.2d 120 Ct. (1972). wealth the as- all on are premised The rest of the findings an extended peri- will on for that the strike go sumption reso- the School Boards that, to contrary time and od of the en- the schools for lution, will not close the District take strikes to the selective place but will allow tire day as called the Association. These cannot findings sup- because are not port grant injunction they based on the facts as existed at the time the they injunc- tion was or issued sought but are based on trial court’s what lies in the prediction future. we stated: Armstrong of an under Act proper purpose
[T]he
No. 195 is
avert
to
nоt
present danger,
prevent
which
never occur at all
danger
may
occur,
occur,
which
it
can
if
does
at
some
future time before which the
con-
grievances
cerned can
reasonably
to be settled.
expected
Id. at
The District cautions us to note that the trial courts decision is based on conclusion that there awas health, and welfare of the students rather than the existence of a clear and present danger. in Ross we did Although recognize these are two an which sepаrate grounds be is- upon injunction may sued, we do not believe this the trial permits court to base on its injunction merely the fu- prediction ture. As Judge out in pointed Ross (Dissenting Blatt here, “the ‘clear and Opinion), words as used present’ must be understood to modify both word ‘dangеr’ and the word ‘threat’ and one must be as ‘clear and other.” Id. at present’ A.2d 414. reasons, For the above stated we hold that given facts available court at the time it issued the no reasonable existed injunction, on it grounds which could have based a conclusion that the strike activity a threat taking place posed safety or wel- *8 fare of the As we in public. recognized how- Armstrong, ever, this is not that say these same facts aggravated some by unexpected circumstance continued for a such period time could not reach the where a point would, be present.
Reversed.
Order of Com- Now, of the Court order April February Luzerne entered County mon Pleas of 1984, is reversed. 131-E and 132-E Nos. facts, argument the Districts that the reject, these We under guaranteed handicapped to all right education strike violated Act, Handicapped 1 of the under Section children 91-230, §1401. 20 U.S.C. L. Pub. Opinion
Dissenting Crumlish, President Judge Jr..- I dissent. respectfully conclusion with majority’s
I disagree strongly a strikes clear a selective does not present that series of and welfare of safety and present danger students. the students to attend lies requiring The danger unreasonable expectation with the morning each school continuous a full day supervised will receive that they fre- with We are here and care. prеsented instruction of the educational interruptions unscheduled quent, not I would years. a student’s formative during system children to of our well-being hazard the risk of insure against district that could not school the day. teachers during abandonment of instructional days It is not the loss аggregate dis- is the of this find most here. purpose I Nor vexing aof statutory right sent an attempt usurp a strike. It is the unpredictability teacher to School I seek to guard against. school day strike during order en- affirm the court’s I therefore would in further selec- from engaging joining strikes. tive in this dissent. and Colins join
Judges MacPhail the District notes this Humphreys Cain, Pa. Ct. Commonwealth v. (1984), 311(a)(4) that Pa. R.A.P. we held 474 A.2d appeals right appli- interlocutory permits is which agree injunctions, preliminary we cannot cable injunction. petition filed was final The this special clearly sought designated as a what it District during hear- and there was discussion no