Burton D. Morris, Deputy Atty. Gen., for appellants.
Louis F. Hinman, III, Fort Washington, for appellees, elected members of city council and mayor, only.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Nix and Manderino, JJ., joined.
This lawsuit involves a class action in equity filed in the Court of Common Pleas of Philadelphia by parents and children of the City of Philadelphia against the Board of Education of Philadelphia to compel the board to perform its funding responsibility to the education system of Philadelphia. The City filed preliminary objections alleging that the Commonwealth of Pennsylvania was an indispensable party to the lawsuit, and its failure to be joined divested the Court of Common Pleas of jurisdiction. The preliminary objections were dismissed and an appeal was taken by the board to the Commonwealth Court. The Commonwealth Court affirmed the Court of Common Pleas, holding that the Commonwealth was not an indispensable party and, therefore, need not be joined. See Ross v. Keitt, 10 Pa. Commw. 375, 308 A.2d 906 (1973). Thereafter the board filed a third party complaint in the Court of Common Pleas of Philadelphia against the Commonwealth.
The Commonwealth, as an additional defendant, filed preliminary objections alleging that since it was being sued, the proper forum is the Commonwealth Court.
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) provides in part:
"(a) The Commonwealth Court shall have original jurisdiction of:
"(1) All civil actions or proceedings against the Commonwealth or any officer thereof, acting in his official capacity, except (i) actions or proceedings in the nature of applications for a writ of habeas corpus or post-conviction relief not ancillary to proceedings within the appellate jurisdiction of the court, and (ii) proceedings under the Eminent Domain Code."
The Court of Common Pleas, accepting the argument of the Commonwealth, transferred the case to the Commonwealth Court. The Commonwealth Court, in an opinion and order by President Judge Bowman, held that since the Commonwealth was not an indispensable party under the Commonwealth Court's previous decision in the case, the Commonwealth was not a true "party" defendant within the meaning of § 401(a)(1); that the case should be heard in the Court of Common Pleas; and that the case should be transferred back to the Court of Common Pleas of Philadelphia. The Commonwealth then filed papers in this court entitled "Appeal from an Order of the Commonwealth Court".
In our opinion, the order of the Commonwealth Court does not entitle the Commonwealth to an appeal to this court as a matter of right. Section 211.203 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. ...