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WEST HOMESTEAD BOROUGH SCHOOL DISTRICT v. ALLEGHENY COUNTY BOARD SCHOOL DIRECTORS (10/09/70)

decided: October 9, 1970.

WEST HOMESTEAD BOROUGH SCHOOL DISTRICT
v.
ALLEGHENY COUNTY BOARD OF SCHOOL DIRECTORS, APPELLANT



Appeal from decree of Court of Common Pleas of Allegheny County, April T., 1969, No. 1284, in case of School District of Borough of West Homestead v. Allegheny County Board of School Directors.

COUNSEL

John B. Nicklas, Jr., with him McCrady & Nicklas, for appellants.

Aaron Cohen, with him Cohen & Popiel, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Pomeroy concurs in the result. Mr. Chief Justice Bell dissents and would quash the appeal.

Author: Jones

[ 440 Pa. Page 114]

The basic issue raised on this appeal is whether the Court of Common Pleas below had jurisdiction to entertain the action.

[ 440 Pa. Page 115]

In 1968, the Supplemental Reorganizational Act [Act]*fn1 was passed to supplement the Public School Code of 1949.*fn2 The Allegheny County Board of School Directors [County Board], pursuant to Section 2(a) of the Act,*fn3 held hearings to aid in its preparation of a plan for the organization of administrative units. Thereafter, the County Board adopted a plan under which the School District of the Borough of West Homestead [appellee] was placed in Unit 21. Unit 21 included the School Districts of West Homestead, Homestead and Munhall. Dissatisfied with being placed in Unit 21, appellee petitioned the State Board of Education [State Board] to review the County Board's decision,*fn4 and a date was set for a hearing before the State Board.

Eight days prior to the scheduled hearing date, the appellee instituted an action in equity, in the Court of Common Pleas of Allegheny County, against the County Board. Appellee sought two types of relief in this equity action: first, that a mandatory injunction be issued, directing the County Board to provide findings of fact and conclusions relative to the Allegheny County plan; and, second, that the County Board be restrained from participating in any State Board hearings on the County Plan, until such time as the findings and conclusions would be served on the appellee.*fn5

[ 440 Pa. Page 116]

Preliminary objections were filed to appellee's complaint, wherein the appellants challenged the jurisdiction of the court below on the basis that the Act provided an exclusive statutory administrative remedy which was still available and open to the appellee. The court below ruled that it did have jurisdiction and issued an order dismissing the preliminary objections. The County Board has now appealed from that order.

Initially, we will consider whether this appeal should be dismissed as having been taken from an interlocutory order. The right of the County Board to appeal from the lower court's dismissal of the preliminary objections has not been questioned by the appellee. Nevertheless, the Supreme Court only has "such jurisdiction as shall be provided by law." Pa. Const. art V, ยง 2(c). We cannot acquire jurisdiction to entertain an appeal either by the consent of the parties or by our own acquiescence, if such jurisdiction is not provided by law. Commonwealth v. Bey, 437 Pa. 134, 262 A.2d 144 (1970). Accordingly, we deem it appropriate to raise this issue sua sponte. See Calabrese v. Collier Twp. Mun. Auth., 430 Pa. 289, 293, 240 A.2d 544, 546 (1968).*fn6

[ 440 Pa. Page 117]

An order dismissing a party's preliminary objections is interlocutory and, therefore, generally not appealable. Philadelphia Redevelopment Auth. Appeal, 413 Pa. 339, 340 n. 1, 196 A.2d 376, 377-8 n. 1 (1964); Grosso v. Englert, 381 Pa. 351, 354, 113 A.2d 250, 252 (1955). Unless the instant order is within the following scope: a statute, or special rule of law, which obviates the general rule, the instant appeal is premature and must be quashed. Caplan v. Keystone Weaving Mills, Inc., 431 Pa. 407, 246 A.2d 384 ...


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