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decided: June 24, 1971.


Appeal from order of Commonwealth Court, No. 310 C. D. of 1971, in case of American Federation of State, County and Municipal Employees, AFL-CIO by its Trustee ad litem, Gerald W. McEntee et al. v. The Honorable Milton J. Shapp et al.


Israel Packel, Special Assistant Attorney General, with him Peter W. Brown, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellants.

Gilbert A. Cornfield, with him Kleiman, Cornfield and Feldman, Pepper, Hamilton & Scheetz, and Wilderman, Markowitz & Kirschner, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Dissenting Opinion by Mr. Justice Barbieri. Mr. Justice Jones and Mr. Justice Pomeroy join in this dissenting opinion.

Author: Bell

[ 443 Pa. Page 530]

The plaintiffs in this case are (1) three individuals who at the time the action was brought were employees

[ 443 Pa. Page 531]

    of the Department of Transportation*fn1 of the Commonwealth of Pennsylvania (hereinafter referred to as D.O.T.), and (2) an AFL-CIO labor union which, although not formally certified as the collective bargaining agent, purports to represent in excess of 5,000 persons who are employed by D.O.T. but are not covered by Civil Service. The defendants are Milton Shapp, Governor of the Commonwealth of Pennsylvania, and Jacob Kassab, Secretary of Transportation of the Commonwealth, who was appointed to that office by Governor Shapp.

The plaintiffs, anticipating that they and many additional thousands of D.O.T. employees who had been appointed and employed by the State under the prior Administration were to be discharged (as they later were: see infra) because of their Republican political sponsorship or patronage, filed a complaint in the Commonwealth Court on April 21, 1971, seeking an injunction against their discharge and other equitable relief. Simultaneously with the filing of the complaint, the plaintiffs filed a motion in the Commonwealth Court, asking for a special injunction to restrain mass firings by the Governor of D.O.T. employees solely for political reasons. Thereupon defendants filed preliminary objections in the form of a demurrer.

Plaintiffs' basic theory is that the employees in this Department, even though admittedly appointed for political reasons, should be entitled to notice and a hearing before discharge, and that political affiliation is not a proper or lawful basis or ground for discharge.

The Commonwealth Court heard argument on the motion for an injunction but refused to issue the injunction without an evidentiary hearing, which it listed for May 10, 1971. In the interim, some two thousand employees of D.O.T. (including the three individual plaintiffs) had been fired and replaced by other persons.

[ 443 Pa. Page 532]

At the conclusion of the evidentiary hearing on the plaintiffs' complaint and on their motion or petition for an injunction, the Commonwealth Court set a further hearing date of June 3, 1971 to consider the defendants' aforesaid preliminary objections in the form of a demurrer, and also issued an Order to maintain the status quo pending that hearing. The Commonwealth Court's Order to maintain the status quo also provided (1) that there be no more terminations or discharges of non-policy-making employees in and from D.O.T. without notice and a hearing, and (2) that all such employees in that Department whose employment had been terminated since April 21, 1971 must be given an opportunity for rehiring if and when vacancies arise in the affected job classifications, prior to the disposition of this suit. This was in effect an Order granting a preliminary injunction.*fn2

The first question raised in this appeal is whether the Commonwealth Court abused its discretion in issuing the aforesaid preliminary injunction.

Ordinarily, three prerequisites are essential to justify the issuance of a preliminary injunction. First, the issuance of the preliminary injunction is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, greater injury would result by refusing the preliminary injunction than by granting it; third, until a final determination can be made, the decree preserves the status quo and

[ 443 Pa. Page 533]

    the rights of the parties as they existed immediately prior to the allegedly wrongful conduct. Alabama B. & C. Corp. v. Pa. Ind. Chem. Corp., 410 Pa. 214, 189 A.2d 180.

Moreover, there must also be some apparently reasonable grounds, as well as pertinent legal principles, to support the preliminary injunction. In Community S., Inc. v. Denver R. Rock., Inc., 429 Pa. 565, 240 A.2d 832, the Court said (page 569): "We start with the proposition, now firmly established, that 'on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable: . . .' Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, ...

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