Appeal from order of Court of Common Pleas of Lackawanna County, Jan. T., 1968, No. 2, in case of Emil M. Legman v. School District of City of Scranton et al.
Carl Carey, with him M. H. Goldstein, for appellants.
Robert T. Gownley, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Cohen.
Appellee instituted this action in equity to enjoin the school district from paying increased salaries to certain teachers in the Scranton school system who allegedly went on strike in December 1967. The gravamen of his complaint is that such action by the school board (which has already progressed to the point of approving this raise in the 1968 budget) would violate the Strike by Public Employees Act, Act of June 30, 1947, P. L. 1183, § 1 et seq., 43 P.S. § 215.1 et seq. This statute provides that whenever a "public employee" goes "on strike" such employee may return to his previous employment only on the condition that his compensation remain the same as before the walkout for a period of three years. Appellants (a group which now includes as intervening parties the two teachers' unions) filed preliminary objections to the complaint. It is from the dismissal of these objections that appellants lodge this appeal.
Their first contention is that equity has no jurisdiction to hear this case. The argument is based on the proposition that the Strike by Public Employees Act contains the exclusive means for determining whether a violation of the act has occurred. The section relied
upon provides: "Notwithstanding the provisions of any other law, any person holding such a position who, without the lawful approval of his superior, fails to report for duty or otherwise absents himself from his position or abstains, in whole or in part, from the full, faithful and proper performance of his position shall be deemed on strike: Provided, That such person, upon request, shall be entitled to establish that he did not violate the provisions of this act. Such request must be filed in writing within ten days after regular compensation of such employe has ceased. In the case of a public employe who is entitled by law to a hearing upon dismissal or removal, such written request shall be filed with the officer or body having power to remove such employe, and such officer or body shall within ten days conduct a hearing to determine whether the provisions of this act have been violated by such public employe in the manner provided by law, appropriate to a proceeding to dismiss or remove such public employe."
We agree that this part of the statute clearly provides the sole procedure by which it may be determined whether a school employee violated the act. But this conclusion is not dispositive of the issue before this Court. Here we have a taxpayer of the school district complaining that the school board is about to make illegal payments. He seeks to guarantee by restraining the school board that no such payments are made. Thus it is a controversy between the taxpayer and the school board. This type of litigation clearly does not come within the language of section 5 of the Strike by Public Employees Act which directs: "That such person, [public employee allegedly on strike] upon request, shall be entitled to establish that he did not violate the provisions of the act." The section five procedure only comes into play once the school board has determined
that one or more of its employees has been "on strike" and decides that such striking employee or employees are not entitled to increased compensation because of the penalty provision of section 4 of the act.
What the taxpayer in the instant action seeks is to restrain illegal payments by the school board; if successful in obtaining the injunction, the school board will be required to make the initial determination whether or not any of its employees were on strike. Once it decides which, if any, of the teachers were on strike and refuses to pay the increased compensation to those employees because of the section 4 penalty, then section 5 becomes operative. This latter section will provide a procedure by ...