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decided: January 30, 1975.


Original jurisdiction 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 Jangharrie, Trustee ad litem, v. William Ross; Robert Sebastian; Agustus Baxter; Mrs. Lawrence Boonin; Phillip Davidoff; George Hutt; Mrs. Edward Oberholtzer; Arthur Thomas; Alex Waschco, Jr.; individually and as members of the Board of Education, School District of Philadelphia; Mathew Costanzo, individually and as 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, v. The Honorable Milton Shapp, Governor of the Commonwealth of Pennsylvania; Israel Packel, Attorney General of the Commonwealth of Pennsylvania; John C. Pittinger, Secretary of Education of the Commonwealth of Pennsylvania; Grace Sloan, State Treasurer; Kenneth Lee, Speaker of the House of the Commonwealth of Pennsylvania; Martin L. Murray, President pro tempore, State Senate of the Commonwealth of Pennsylvania; and the General Assembly of Pennsylvania.


Stephen F. Gold, with him Jonathan M. Stein, George Gould, Lawrence M. Lavin and Harold I. Goodman, for plaintiffs.

Louis F. Hinman, III, Assistant City Solicitor, with him James M. Penny, Jr., Assistant City Solicitor, Raymond Kitty, Deputy City Solicitor, Sheldon L. Albert, City Solicitor, and Vincent J. Salandria, for defendants.

Burton D. Morris, Deputy Attorney General, with him Lawrence Silver, Deputy Attorney General, and Israel Packel, Attorney General, for additional defendants.

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

Author: Bowman

[ 17 Pa. Commw. Page 186]

This case is once again before this Court for a decision on preliminary procedural questions and not on the merits. The involved history of this case prior to the current transfer to this Court by order of the Court of Common Pleas of Philadelphia County is adequately reported in our prior decision and it would be repetitious to restate it. Ross v. Keitt, 10 Pa. Commonwealth Ct. 375, 308 A.2d 906 (1973). In Ross we held that the Commonwealth was not an indispensable party to plaintiffs' complaint in equity, and therefore, affirmed the lower court.

Following our decision in Ross, the defendants filed a third party complaint against the Honorable Milton Shapp, Governor, Israel Packel, Attorney General, John C. Pittenger, Secretary of Education, and Grace Sloan, State Treasurer, among others (hereinafter collectively referred to as additional defendants) to join them as additional defendants. Preliminary objections were filed to this complaint challenging the jurisdiction of the lower court to entertain the case in view of Section 401(a)(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.401(a)(1), which arguably vests exclusive original jurisdiction of suits

[ 17 Pa. Commw. Page 187]

    against the Commonwealth in the Commonwealth Court. Additional preliminary objections in the nature of a motion to strike the complaint were also filed, but not decided by the lower court.

The preliminary objection as to jurisdiction was sustained by the lower court and by order the case was transferred to this Court pursuant to Section 503(b) of the ACJA, 17 P.S. § 211.503(b). The additional defendants filed preliminary objections in this Court challenging the jurisdiction of this Court, which objections were consolidated by Order of this Court with the remaining preliminary objections undisposed of by the lower court prior to its transfer.

In view of our decision that this Court does not enjoy exclusive original jurisdiction, we will not dispose of the preliminary objections filed in the lower court, but will ...

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