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BUTLER EDUCATION ASSOCIATION v. BUTLER AREA SCHOOL DISTRICT (03/03/78)

decided: March 3, 1978.

BUTLER EDUCATION ASSOCIATION, PETITIONER
v.
BUTLER AREA SCHOOL DISTRICT, RESPONDENT



Appeal from the Order of the Court of Common Pleas of Butler County in case of Butler Area School District v. Butler Education Association, Order dated January 26, 1978.

COUNSEL

Ronald N. Watzman and Daniel R. Delaney, for petitioner.

Charles E. Dillon, with him Dillon, McCandless, King & Kemper, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle.

Author: Per Curiam

[ 34 Pa. Commw. Page 144]

On January 26, 1978, the Court of Common Pleas of Butler County entered a decree enjoining a work stoppage by the Butler Education Association. The court below found that the work stoppage created a clear and present danger or threat thereof to the health, safety or welfare of the public. (See Section 1003 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1003). The court also specifically held "[t]he strike provisions

[ 34 Pa. Commw. Page 145]

    of PERA [Public Employe Relations Act] relating to public school teachers cannot be reconciled with the Public School Code and the Constitution of Pennsylvania. The portion of PERA legalizing strikes by public school teachers is unconstitutional." Defendants have filed exceptions to the decree which are presumably awaiting disposition below.

The defendants thereafter presented a motion to the court below whereby defendants requested the court to amend its decree to provide a statement that:

This Court is of the opinion that its Order involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from this Court Order may materially advance the ultimate determination of the matter.

This language is as required by Section 501(b) of the Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.501(b). On February 21, 1978, the motion to amend was denied.

The Butler Education Association then filed in this Court a petition for interlocutory appeal by permission pursuant to Section 501(b) of the ACJA and Pa. R.A.P. 1301 et seq. The Association has also filed a petition for review and an application for supersedeas and stay.

Addressing first the Association's petition for interlocutory appeal by permission, we conclude that we are without authority to grant the same as the court below has refused to amend its decree to provide the requisite statement for an interlocutory appeal by ...


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