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RICHARD WELLS v. PITTSBURGH BOARD PUBLIC EDUCATION. RICHARD WELLS (06/27/77)

decided: June 27, 1977.

RICHARD WELLS, ON HIS OWN BEHALF AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED
v.
THE PITTSBURGH BOARD OF PUBLIC EDUCATION. RICHARD WELLS, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Richard Wells, on his own behalf and on behalf of all those similarly situated, v. The Pittsburgh Board of Public Education, the Pittsburgh Federation of Teachers, Local 400, American Federation of Teachers, and Albert Fondy, individually and in his capacity as President of the Pittsburgh Federation of Teachers, Local 400, American Federation of Teachers, No. GD 76-00399.

COUNSEL

Henry H. Wallace, with him Russell J. Ober, Jr., and Wallace, Chapas & Ober, for appellants.

Robert J. Stefanko, First Assistant Solicitor, with him Justin M. Johnson, Solicitor, for appellee.

Thomas A. Beckley, Bradley S. Gelder, and, of counsel, Beckley & Madden, for amicus curiae, Pennsylvanians for Right to Work.

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

Author: Bowman

[ 31 Pa. Commw. Page 3]

Richard Wells (appellant) appeals from the dismissal on preliminary objections in the nature of a demurrer of Counts I and II of his class action complaint -- said Counts being directed against The Pittsburgh Board of Public Education (Board).*fn1

Preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959). Conclusions of law and unjustified inferences are not so admitted. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). It was thus the task of the court below to examine the complaint and to consider whether a cause of action was stated which, if proved, would entitle appellant to the relief he seeks. If upon such examination there remains doubt as to the propriety of dismissing the complaint, a demurrer must not be sustained. Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971).

The facts as averred are as follows. Appellant and those whom he purports to represent were, at all times pertinent to these proceedings, employed as public school teachers in Pittsburgh but were not members of The Pittsburgh Federation of Teachers, Local 400, American Federation of Teachers.

From December 1, 1975 until a date not to be found in the record of these proceedings, there occurred in Pittsburgh a union-sanctioned strike of public school teachers as defined by Section 301(9) of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.301(9). Appellant

[ 31 Pa. Commw. Page 4]

    avers that at all times throughout the duration of this strike he and other nonunion teachers did not participate in strike activities and were at all times ready, able and willing to work and would have done so but for the decision of the Board to close down the entire school system. Count I of the complaint sounds in common law contract. Count II is based upon Sections 1153 and 1155 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 11-1153, 11-1155.*fn2

The Board's demurrer to both counts invoked Section 1153 for the proposition that a school board is required to pay teachers' salaries notwithstanding a closing, only when such closing is due to contagious disease or destruction of the ...


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