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decided: July 28, 1972.


Original jurisdiction in case of Frank Dochenetz, Pete Yerace, Thomas Smith and Anthony Weis v. School District of Bentworth and Pennsylvania State Public School Building Authority.


Stephen I. Richman, with him Greenlee, Richman, Derrico & Posa, for plaintiffs.

Thomas J. Terputac, with him John F. Bell, for defendant, School District of Bentworth.

F. Lee Shipman, with him James Clippinger, for defendant, Pennsylvania State Public School Building Authority.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.

Author: Kramer

[6 Pa. Commw. 173 Page 174]

This case comes within the original jurisdiction of this Court. It is an equity action brought by certain citizens seeking to enjoin their School District from building a new high school.

It comes before this Court as a result of our March 3, 1972 Memorandum Opinion and Order in which we accepted the transfer of this case from the Court of

[6 Pa. Commw. 173 Page 175]

Common Pleas of Washington County. A chronological resume of the numerous and intricate facts and procedural steps herein involved is indispensable to an intelligent understanding and appreciation of the issue.

On November 11, 1966, the defendant school district authorized the preparation of a broad educational survey, which was disclosed publicly and published in local newspapers in June, 1967. On February 3, 1968, the defendant school district authorized the preparation of a Long Range Plan, which was required by the Department of Education (Department) for any school building construction. This plan was made likewise a matter of public record. Both reports recommended the building of a new high school. Architects were retained, and preliminary renderings and specifications were made. Generally, the plans called for a new four-year high school building complex for about 700 students, living in the five municipalities comprising the school district in Washington County. Applications were made to the Department and later to the State Public School Building Authority (Authority) for approval of the project, and after several revisions to the proposal it was approved by both agencies. The land was transferred by deed from the defendant school district to the Authority, and thereafter on January 27, 1970, they entered into a standard agreement and lease, providing for the construction, financing and leasing of the new school. On August 10, 1971, the Authority, after competitive bidding, awarded the construction contract to the lowest responsible bidder, in the amount of $3,242,793. The total amount authorized to be financed was $4,075,268.80.*fn1

[6 Pa. Commw. 173 Page 176]

On August 13, 1971, the four plaintiffs filed in their own behalf and on behalf of the residents, citizens, property owners and taxpayers of the School District of Bentworth, a Complaint For Injunction against the School District of Bentworth (defendant). In their Complaint, plaintiffs alleged, inter alia, that defendant's school directors "have abused their powers, have disregarded their duty, have acted arbitrarily and capriciously, and have acted unlawfully and against the public interest. . . ." The Complaint refers to a decision of defendant's directors to construct a new senior high school to serve students of the defendant school district. The Complaint, inter alia, prayed for the issuance of a preliminary or special injunction "enjoining the defendant school board from commencing or proceeding with the construction of the proposed new Bentworth Senior High School."

The defendant served upon the plaintiffs on August 20, 1971,*fn2 Preliminary Objections to the filing of the Complaint For Injunction, alleging, inter alia, that "[t]he plaintiffs have failed to join an indispensable party to this proceeding, or in the alternative, the suit should have been brought exclusively against the State Public School Building Authority. . . ." On that same day, a stipulation was entered into by the parties permitting the plaintiffs "to amend their Complaint to join the State Public School Building Authority (Authority) as a party-defendant."

An Answer to the Complaint For Injunction as well as New Matter were filed by the defendant school district on August 27, 1971, and on that same day, it filed a "Petition To Dismiss Complaint Or In the Alternative To Require the Filing of A Bond." An Answer to the above Petition was served by the plaintiffs on September 2, 1971, and was filed October 27, 1971. The

[6 Pa. Commw. 173 Page 177]

Authority filed, on August 30, 1971,*fn3 Preliminary Objections wherein it questioned the jurisdiction of the Court of Common Pleas of Washington County to proceed with a case against the Authority.

On September 2, 7, 17 and 22, hearings upon the merits were held by the lower court, during which times only the plaintiffs and the school district defendant were present. The Authority was not present and was not represented at the above four days of hearings. It is to be noted that the Preliminary Objections of the Authority were not ruled upon at any time prior to or during the course of the hearings.

The contractor, William Garlick and Sons, Inc., of Fayette County, the lowest responsible bidder and awardee of the construction contract for the new high school, began excavation and site preparation work on September 27, 1971. The following day, the plaintiffs filed a "Petition For Leave To Amend Complaint Because of Occurrence of New Developments," asking the court to immediately enjoin the defendant school district and defendant Authority from any further acts related to the construction of the new senior high school. On September 28, 1971, the Court of Common Pleas ordered that an emergency conference be convened the following day for the purpose of dealing with the plaintiffs' prayer for immediate injunctive relief. At the conference it was agreed informally between the parties that the status quo would be maintained until October 4th, at which time further consideration and discussion would be held. The October 4th conference yielded no answers.

On October 18, 1971, the Court of Common Pleas of Washington County ordered, inter alia, that "[T]he

[6 Pa. Commw. 173 Page 178]

    case is transferred immediately by this action to the Commonwealth Court," thereby sustaining the August 30, 1971, Preliminary Objections of the defendant Authority. In an Order, dated November 8, 1971, this Court ordered that three issues be argued before it at argument in January 1972. The issues related to the indispensability of the Authority before the lower court, the ouster of the jurisdiction of the lower court and the question of waiver by stipulation of parties to the jurisdiction of the lower court.

During the latter part of September or early part of October, 1971, picketing of the construction site occurred for the purpose of preventing the on-going construction work. The lower court held hearings; however, it issued no injunction. On October 22, 1971, the contractor filed an action in equity praying for injunctive relief from the interference of those picketing. The lower court enjoined both the contractor and the pickets pending the disposition of the case before the Commonwealth Court. No bond was required. Appeal was taken to the Pennsylvania Supreme Court on November 23, 1971. William Garlick & Sons, Inc. v. Elizabeth Lambert, et al., No. 33 March Term, 1972. The Supreme ...

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