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decided: August 7, 1973.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Thomas Keitt; Alex Sherman and Tawana Sherman, by their mother and natural guardian, Dorothy Sherman; Michael Clark and Michelle Clark by their mother and natural guardian, Patricia Clark; Union of Student Governments, by Betty Century, Trustee ad litem, on behalf of themselves and all students similarly situated; Educational Equality League, by Floyd Logan, Trustee ad litem, Philadelphia Welfare Rights Organization, by Viola Sanders, Trustee ad litem; Metropolitan Council of the National Association for the Advancement of Colored People, by Rev. Wycliffe Jangdharrie, Trustee ad litem, v. William Ross; Robert Sebastian; Agustus Baxter; Mrs. Lawrence Boonin; Philip Davidoff; George Hutt; Mrs. Edward Oberholtzer; Arthur Thomas; Alex Waschco, Jr.; individually and as members of the Board of Education, School District of Philadelphia; Matthew Costanzo, individually and as the Superintendent, School District of Philadelphia; George X. Schwartz; William F. Boyle; Edgar C. Campbell; Edward R. Cantor; Beatrice K. Chernock; Thomas M. Foglietta; John B. Kelly, Jr.; Francis C. O'Donnell; Natale F. Carabella, Jr.; William A. Cibotti; Charles L. Durham; Dr. Ethel D. Allen; Joseph L. Zazyczny; Harry P. Jannotti; Joseph E. Coleman; Isadore H. Bellis; and Melvin J. Greenberg, individually and as elected members of City Council; and Frank Rizzo, individually and as Mayor of Philadelphia, No. 2849 September Term, 1972.


Sheldon L. Albert, Chief Deputy City Solicitor, with him Howard D. Scher, Assistant City Solicitor, and Martin Weinberg, City Solicitor, for appellants.

Stephen F. Gold, with him George Gould, Johnathan M. Stein and Laurence M. Lavin, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Judge Crumlish, Jr. dissents. Concurring Opinion by Judge Kramer.

Author: Bowman

[ 10 Pa. Commw. Page 377]

The sole issue in this appeal is whether the Commonwealth of Pennsylvania is an indispensable party to a class action in equity brought by several students, their parents and guardians and several citizen groups against the Board of Education, City Council and named public officials of the City of Philadelphia. The gravamen of the complaint avers that because of the failure or refusal of defendants to perform statutory duties which resulted in deficit and inadequate financing of the public schools for the fiscal year July 1, 1972, to June 30, 1973, the school children will be denied statutorily and constitutionally mandated educational standards.

If the Commonwealth is an indispensable party, this Court has exclusive original jurisdiction over the subject matter and a court of common pleas is without such jurisdiction. Sections 401 and 508(c), Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, 17 P.S. ยงยง 211.401 and 211.508(c); United States Cold Storage Corporation v. Philadelphia, 427 Pa. 624, 235 A.2d 422 (1967); Merner v. Department of Highways, 375 Pa. 609, 101 A.2d 759 (1954).

[ 10 Pa. Commw. Page 378]

The lower court concluded that the Commonwealth was not an indispensable party and dismissed a preliminary objection raising this issue. Speaking through President Judge Jamieson, it said:

"Defendants argue that Rule 2227(a) of the Pa. R.C.P., requires the joinder of the Commonwealth of Pennsylvania as a party defendant. . . .

"Rule 2227 deals with compulsory joinder. Subsection (a) provides: 'Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.' The editorial note to Rule 2227(a) indicates that this rule makes the joinder of parties mandatory only in those cases in which the right or liability in suit is solely joint. If the liability is joint or several, the joinder of all persons in interest is not required.

"Thus, where the obligations of defendants under a contract are clearly joint, all the obligors must be joined as defendants. Joint owners of property causing an injury to plaintiff must be joined as defendants. In proceedings for partition or escheat of specific real or personal property, the joinder of all parties in interest is required. Goodrich Amram, Procedural Rules Service, Commentary 2227(a)(2).

"In equity actions, a party is indispensable when his interest in the proceeding is of such nature that a final decree cannot be made therein without affecting his interest or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and ...

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