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decided: August 28, 1973.


Appeals from the Orders of the Court of Common Pleas of Cambria County in cases of Benjamin H. Root v. Northern Cambria School District, a quasi-municipal corporation, No. 17 December Term, 1972, and No. 1 March Term, 1973.


Randall C. Rodkey, with him Green, Abood, Rodkey & Eckel, for appellant.

Vasil Fisanick, for appellee.

William Fearen, with him Cleckner and Fearen, for amicus curiae, Pennsylvania School Boards Association.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Judge Kramer concurs in the result only. Dissenting Opinion by Judge Mencer. Judge Blatt joins in this dissent. Dissenting Opinion by Judge Blatt.

Author: Rogers

[ 10 Pa. Commw. Page 176]

Benjamin Root, who describes himself as a resident, property owner and taxpayer of the Northern Cambria School District, appeals from orders of the Court of Common Pleas of Cambria County dismissing, after trial, two complaints in equity by which he sought decrees which would require the Northern Cambria School Board to keep its several schools open for instruction commencing on December 22, 1972 and on each and every weekday thereafter until June 30, 1973, except Thanksgiving Day, Christmas Day, New Year's Day, Good Friday and Memorial Day. It is not entirely clear whether the court dismissed the complaints because it thought equity was without jurisdiction because

[ 10 Pa. Commw. Page 177]

    mandamus was available as a remedy, or because it believed the record did not support its interference with the school board's actions in the premises. Two extensive trials were held and the proceedings, including the court's opinions, demonstrate a patient consideration of the issues. Therefore, although our review might confine itself to jurisdictional and other procedural and technical problems in the litigation, past and present,*fn1 we will consider the matter on the merits because the issues are of public importance and the problems are "capable of repetition, yet evading review."*fn2

The litigation is the result of a lawful strike by the teachers' union of the school district which closed the schools from August 29, 1972 until October 12, 1972. The teachers went back to work on the latter date in compliance with an order of the Cambria County Common Pleas Court. Thirty instruction days were thus lost. When the instant suits were brought, the first in November and the second in December, it was, as plaintiff requested, necessary that school be conducted every weekday through the end of June in order that there be provided 180 days of instruction during the school year 1972-1973. The school board's calendar adopted before the strike provided for a number of days off for holidays and snow emergencies and for the end of instruction on June 1, 1973. The board refused to amend

[ 10 Pa. Commw. Page 178]

    its calendar after the strike and only 150 days of instruction during the 1972-1973 school year were provided for.

Unfortunately, there is more than a suggestion in the record that Mr. Root is really representing the teachers' interest in making up the lost instruction days in order to avoid a loss of salary. Equally unhappily, it appears that the school board refused to amend its calendar because it wanted the teachers to lose salary because of the strike. The histories in the brief and statements of counsel so indicate; more tellingly, however, in fact all items of dispute between the board and the teachers were settled when only seven days of instruction had been lost. The teachers then additionally insisted that the board make up the lost days; the board took the position that this issue was one of inherent managerial policy on which it was not required to bargain but on which it would "meet and discuss" after the teachers went back. Counsel for the board quite frankly stated at argument that the board expected the teachers to reply with the suggestion that three or four of the days might be supplied. The result of this "negotiation" was that the children lost an additional 23 days of instruction. We have, therefore, another case of the type against which Judge Kramer so vigorously inveighed in his concurring opinion in The Bellefonte Area Education Association v. The Board of Education of the Bellefonte Area School Board, 9 Pa. Commonwealth Ct. 210, 304 A.2d 922 (1973), in which the children are aptly described as ". . . pawns in an adult game of economics."

The plaintiff argues that the court below should have ordered the board to keep school every weekday until the end of June because Section 1501 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, ...

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