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PENNSYLVANIA BARBER SCHOOLS v. ANTHONY ALFANO (03/20/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 20, 1975.

PENNSYLVANIA BARBER SCHOOLS, INC., PLAINTIFF,
v.
ANTHONY ALFANO, THOMAS C. BIGLER, STANLEY O. THOMAS AND ROBERT V. VAVRO, INDIVIDUALLY AND ACTING AS STATE BOARD OF BARBER EXAMINERS, C/O DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, DEFENDANTS

Original jurisdiction in case of Pennsylvania Barber Schools, Inc. v. Anthony Alfano, Thomas C. Bigler, Stanley O. Thomas and Robert V. Vavro, individually and acting as State Board of Barber Examiners, c/o Department of Professional and Occupational Affairs.

COUNSEL

Benjamin F. Levy, with him C. Max Ivins, for plaintiff.

Robert E. Rains, Deputy Attorney General, with him Robert P. Kane, for defendants.

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

Author: Wilkinson

[ 18 Pa. Commw. Page 55]

This matter is before us in our original jurisdiction. Plaintiff, an incorporated association of barber schools operating in Pennsylvania, filed a petition for declaratory judgment, seeking to have this Court declare Section 3(a) of the Act of June 19, 1931, P.L. 589, as amended, 63 P.S. § 553(a) unconstitutional. The basis of the challenge is that pupils in plaintiff's barber schools are required to serve a substantial apprenticeship, whereas students who attend schools of cosmetology are not so required. We do not reach the merits of this challenge, for the defendants have filed preliminary objections raising the question of

[ 18 Pa. Commw. Page 56]

    whether plaintiff has standing to bring this action. We must sustain the preliminary objections.

This action is instituted under the provisions of the Uniform Declaratory Judgments Act, Act of June 18, 1923, P.L. 840, as amended, 12 P.S. § 831 et seq. Section 2 of that Act, 12 P.S. § 832, provides:

"Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder." (Emphasis supplied.)

The law is quite clear in Pennsylvania that the fact that plaintiff will be generally adversely affected does not in itself put plaintiff in the class authorized to seek a declaratory judgment. The Pennsylvania law with regard to standing to bring an action for a declaratory judgment raising a constitution issue is ably and completely reviewed by then Justice, now Chief Justice, Jones in Kauffman v. Osser, 441 Pa. 150, 271 A.2d 236 (1970).

The plaintiff attempts to avoid the impediments of the existing law by relying on the recent Supreme Court of Pennsylvania decision in Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973). In that case, the issue was the propriety of Rule 301 of the Philadelphia Court of Common Pleas which then prohibited an attorney from representing more than 10 criminal defendants under specified circumstances. The plaintiff, Moore, was an attorney who challenged the Rule, both from his position as an attorney and from the client's right to select an attorney. The Supreme Court of Pennsylvania allowed the action but observed that the right to raise the question of the infringement of the client's rights,

[ 18 Pa. Commw. Page 57]

    without a client joining as plaintiff, was questionable. In particular, Justice Nix, speaking for the majority, specifically stated that this question was not seriously raised or argued:

"It is also significant that respondent registered only a perfunctory one-sentence challenge to petitioner's standing." 451 Pa. at 307, 306 A.2d at 287.

Here, the individuals whose rights are being infringed, if any rights are being infringed, are the students who are required to do the apprenticeship. Unlike Moore, who had a direct interest as an attorney as well as a collateral interest with regard to clients, the plaintiff here has no direct interest but only the collateral interest of the students.*fn1

[ 18 Pa. Commw. Page 58]

Accordingly, we enter the following

Order

Now, March 20, 1975, the preliminary objections of the defendant are sustained and the plaintiff's petition for declaratory judgment is dismissed.

Disposition

Preliminary objections sustained. Petition dismissed.


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