Appeal, No. 106, Jan. T., 1952, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1950, No. 5050, in case of Robert C. Broadwater and Chester L. Alburger v. Arthur B. Otto, President, et al., constituting Board of Inspectors, Philadelphia County Prison. Judgment affirmed.
Louis H. Wilderman, with him Richman & Richman, for appellants.
Robert T. McCracken, with him C. Russell Phillips and Montgomery, McCracken, Walker & Rhoads, for appellees.
Before Drew, C.j., Stearne, Jones, Bell and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The decisive question is whether a discharged prison guard possesses the status to require and participate in grievance procedure under the Act of June 30, 1947, P.L. 1183, 43 PS 215.1.
The title to the Act of 1947, supra, reads: "Relating to strikes by public employes; prohibiting such strikes; providing that such employes by striking terminate their employment; providing for reinstatement under certain conditions; providing for a grievance procedure; and providing for hearings before civil service and tenure authorities, and in certain cases before the Pennsylvania Labor Relations Board." (italics supplied)
Section 1 (b) reads: "In order to avoid or minimize any possible controversies by making available full and adequate governmental facilities for the adjustment of grievances, the governmental agency involved, at the request of public employes, shall set up a panel of three members, one to be selected by the employes, one by the governmental agency, and the two so selected to select a third member."
It is also provided in this section: "... the panel shall make their findings, copy of which shall be sent
to the Governor, to the General Assembly, and to the head of the agency, or political subdivision involved. Upon receipt of the findings of the panel the Governor or the head of the State agency or political subdivision involved may take administrative measures to remedy the complaints. If the Governor or the head of the State agency or political subdivision finds that the situation complained of can only be remedied by legislative action, the Governor may refer the matter to the Legislature for correction, or the head of the State agency or political subdivision may refer the matter to the proper law-making body."
Robert C. Broadwater and Chester L. Alburger, guards at the Philadelphia County Prison, instituted an action in mandamus against the members of the Board of Inspectors, Philadelphia County Prison, seeking to compel them to appoint a panel member under the act. The Board of Prison Inspectors decline so to appoint on the ground that the provisions of the act apply only to existing employes and not to those who have been discharged. Upon a trial by a judge without a jury, a verdict for the defendants was rendered. Exceptions were dismissed in an opinion by the court in banc. This appeal followed.
The question of law, as above indicated, is whether discharged employes may require grievance procedure as provided by the act. We are presently not concerned with the merits of the case. Should the act not apply, that ends the case. Should, however, the act apply, then appellants would possess the right to insist ...