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BIVINS v. PHILADELPHIA FEDERATION TEACHERS (12/20/71)

decided: December 20, 1971.

BIVINS, APPELLANT,
v.
PHILADELPHIA FEDERATION OF TEACHERS



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, No. 2402, in case of Eugene S. Bivins, III et al. v. Philadelphia Federation of Teachers, Local No. 3, American Federation of Teachers, AFL-CIO et al.

COUNSEL

Peter Hearn, with him James T. Giles, and Pepper, Hamilton & Scheetz, for appellant.

Leonard M. Sagot, with him John J. Poserina, Jr., A. Martin Herring, and Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Per Curiam

[ 446 Pa. Page 20]

Decree affirmed. Each party to pay own costs.

Disposition

Decree affirmed.

Dissenting Opinion by Mr. Justice Pomeroy:

This appeal is from a final decree of the lower court sustaining appellees' preliminary objections to a complaint in equity, and dismissing the complaint. The preliminary objections were based on lack of jurisdiction by reason of non-exhaustion of the internal grievance procedures established by the constitution of the defendant union. For the reasons hereinafter set forth, I believe the lower court had and should have exercised jurisdiction over the cause of action set forth in the complaint. I therefore respectfully dissent from the order of affirmance.*fn1

Plaintiffs, members of Local No. 3 of the Philadelphia Federation of Teachers, filed a complaint in equity*fn2

[ 446 Pa. Page 21]

    seeking to enjoin their local from enforcing certain amendments to its constitution adopted February 5, 1971. These amendments, inter alia, prohibit any member who during the preceding 24 months has refused to participate in strike activity from holding elective office within the defendant organization. They thus apply to appellants, who refused to participate in a strike conducted by defendants in September and October, 1970. From the record*fn3 it appears that union elections were scheduled for the late spring*fn4 and that appellants were anxious to adjudicate their grievances before that time. On February 13, pursuant to the grievance procedure contained in the local's constitution, an appeal was launched with the Public Review Board of the American Federation of Teachers seeking to void the amendments. No action emanated from this body until May 7, when appellants were notified by the chairman that a member of the Public Review Board had been appointed to hear the complaint. As far as the record ...


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