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July 2, 1963


Appeal, No. 46, Jan. T., 1963, from orders of Court of Common Pleas of Franklin County, Miscellaneous Docket Vol. T., page 431, in case of Pennsylvania Labor Relations Board v. Frank Butz, Joseph Butz and Stanley Butz, partners, trading and doing business as Modern Home Appliance Co. Orders reversed.


James F. Wildeman, Assistant Attorney General, with him Paul F. Mower, Special Counsel, Raymond Kleiman, Assistant Attorney General, and David Stahl, Attorney General, for Pennsylvania Labor Relations Board, appellant.

Kenneth F. Lee, with him George S. Black, and Black and Davison, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 411 Pa. Page 361]


[ 411 Pa. Page 362]

On November 10, 1961, the Pennsylvania Labor Relations Board (State Board) held a hearing on a petition filed with it by Retail Clerks Union, Local 1436 (Union) requesting a secret ballot to determine whether the Union should be the exclusive bargaining agent for an employee unit composed of the installation and service personnel of Modern Home Appliance Co. (Employer) of Chambersburg, Pa. The State Board granted the petition, conducted the election and a majority of the employees, (i.e., those employees recognized by the Board as eligible to be members of the bargaining unit) voted in favor of representation by the Union. Subsequently, the State Board entered a nisi order certifying the Union as the exclusive representative of the unit and this order was made final on January 28, 1962.

The Employer made timely appeal to the Court of Common Pleas of Franklin County (court).*fn1 The court ordered, inter alia, that "all decisions and orders of the Pennsylvania Labor Relations Board, or the enforcement thereof, heretofore made in this matter [be] stayed" pending hearing of the appeal.

During the pendency of that appeal, the Union filed with the State Board a complaint of discrimination and refusal to bargain collectively against the Employer. The State Board ordered a hearing on this complaint and the Employer then sought and obtained from the court a rule to show cause why a writ of prohibition should not issue prohibiting the State Board from entertaining the complaint.

The court heard argument both on issuance of the writ of prohibition and on the merits of the appeal and handed down two orders; the first order confirmed the issuance of the writ of prohibition and the second order

[ 411 Pa. Page 363]

    set aside the State Board's order of certification. From each order, the State Board now appeals.

The Writ of Prohibition

The issuance of a writ of prohibition is not within the powers of a court of common pleas of this Commonwealth.

This Court reviewed the historical background of the writ of prohibition in Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 61 A.2d 426, noting that it was an extremely ancient writ which issued originally out of King's Bench but later out of Chancery, Exchequer and Common Pleas, that is, out of the High Courts of Westminster. Section XIII of the Act of May 22, 1722, 1 Sm.P.L. 131, establishing a Supreme Court and "County Courts of Common Pleas" for Pennsylvania, invested the Supreme Court with all the powers of the Justices of King's Bench, Common Pleas and Exchequer "at Westminster". Section XXI of that Act gave the courts of common pleas general original jurisdiction within their counties but omitted any reference to the powers of the High Court Justices at Westminster.

Alone of English judicial tribunals, the High Courts of Westminster had the power to issue the great prerogative writs of prohibition, certiorari, mandamus and quo warrantor. These writs, unlike other writs, were not mere formal judicial tools but rather weapons wielded by the judicial arm of the Crown to curb ecclesiastical and baronial encroachments*fn2 and, as such, they were, as a matter of polity, used but sparingly and only when no other remedy savoring less of monarchial arbitrariness was available.

Later Constitutions and statutes of Pennsylvania since 1722 have made the prerogative writs available to our courts of common pleas with the exception of prohibition.

[ 411 Pa. Page 364]

The only court of this Commonwealth, other than this Court, authorized to issue the writ of prohibition is the Superior Court but even that Court can issue the writ only to the extent that an action in prohibition is ancillary to proceedings within that Court's appellate jurisdiction: Act of May 21, 1941, P.L. 47, 17 PS § 181.

While it has been held that the Act of 1836, June 16, P.L. 784, 17 P.S. § 281, conferred upon the courts of common pleas the powers of the English Court of Chancery (Kneedler v. Lane, 3 Grant Cas. 465), it is equally true that in Pennsylvania no court has the full powers of the English Chancellor and such equitable jurisdiction as exists in this Commonwealth is confined to the enumerated powers in equity to be found in the Act of 1836 and succeeding statutes: Alpern v. Coe, 352 Pa. 208, 42 A.2d 542, 161 A.L.R. 1046. Our ...

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