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PATRICK J. BASIAL v. DUQUESNE UNIVERSITY HOLY GHOST (05/30/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 30, 1980.

PATRICK J. BASIAL, NICHOLAS J. DEMAS, WILLIAM A. DONAHER, NICK S. FISFIS, JOHN L. GEDID, MARGARET K. KRASIK, JOHN J. SCIULLO AND RAYMOND F. SEKULA
v.
DUQUESNE UNIVERSITY OF THE HOLY GHOST, A CORPORATION, HENRY J. MCANULTY AND RONALD R. DAVENPORT. APPEAL OF DUQUESNE UNIVERSITY OF THE HOLY GHOST AND HENRY J. MCANULTY AT NO. 376. APPEAL OF RONALD R. DAVENPORT AT NO. 377

Nos. 376 and 377 APRIL TERM, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. GD 79-3476.

COUNSEL

Paul A. Manion, Pittsburgh, for Duquesne University of Holy Ghost and Henry J. McAnulty.

Daniel H. Shapira, Pittsburgh, for Ronald R. Davenport.

Jack W. Plowman, Pittsburgh, for appellees Basial et al.

Cavanaugh, Hoffman and Van der Voort, JJ.

Author: Hoffman

[ 278 Pa. Super. Page 357]

Appellants contend that the lower court erred in dismissing their preliminary objections to appellees' complaint in equity because the court lacked subject matter jurisdiction. We disagree and, accordingly, affirm the order of the court below.

Appellant Ronald R. Davenport is the dean of the law school of appellant Duquesne University of the Holy Ghost (University). In October of 1978, the University's vice president for academic affairs solicited the views of the full-time law school faculty regarding the reappointment of Dean Davenport. Eight of the fourteen faculty members strongly opposed the reappointment.*fn1 Nonetheless, on January 2, 1979, the University's president, appellant Henry J. McAnulty, reappointed Dean Davenport for a five year term beginning July 1, 1980. Appellees, the eight law school faculty members who opposed the reappointment, then instituted an equity action in the Court of Common Pleas of Allegheny County, seeking, inter alia, an injunction directing the University and President McAnulty to revoke the reappointment and to initiate procedures for the appointment of a new dean. Appellees averred that in reappointing Dean Davenport over the opposition of a majority of the faculty members, the University and President McAnulty violated the American Bar Association Standards for Approval of Law Schools (ABA Standards) and the Association of American Law Schools Bylaws (AALS Bylaws) which were incorporated into appellees' University employment contracts.*fn2 ABA Standard 402(a)(iii) requires law schools to provide "adequate opportunity for effective participation by the faculty in the governance of the law school." Appellees' complaint averred that the ABA has interpreted that standard

[ 278 Pa. Super. Page 358]

    as "mandat[ing] that a dean not be appointed over the objections of a majority of the faculty." The AALS Bylaws provide: "Except in rare cases and for compelling reasons, no decanal or faculty appointment or change in faculty status will be made over the expressed opposition of the faculty (acting as a whole or by a representative portion determined by reasonable criteria)." Art. 6, § 6-1, para. 4(c)(iii). Appellees alleged that President McAnulty's action in reappointing Dean Davenport breached each appellee's employment contract and that an equity action was proper because they did not have an adequate remedy at law.

Appellants filed preliminary objections to the complaint, alleging, inter alia, that the common pleas court did not have subject matter jurisdiction over this case. In support of their contention, appellants alleged that appellees had agreed in their employment contracts to abide by all of the ABA Standards and AALS Bylaws, including provisions establishing internal procedures for resolving disputes such as this one.*fn3 Additionally, appellants contended that the

[ 278 Pa. Super. Page 359]

University has a procedure for resolving internal disputes between faculty members and the University.*fn4

The lower court denied appellants' preliminary objections, and this appeal followed.

Appellants first contend that the lower court did not have subject matter jurisdiction over this case because appellees' exclusive means for challenging the reinstatement of Dean Davenport was the procedure provided by the ABA Standards, AALS Bylaws, and the University's regulations (non-judicial remedies). Our jurisdiction in this interlocutory appeal is conferred by the Act of March 25, 1925, P.L. 23, § 1, 12 P.S. § 672 (repealed as of June 27, 1980).*fn5 "Under this section, our scope of review is limited to a single question: did the lower court properly determine whether it had jurisdiction?" Wechsler v. Newman, 256 Pa. Super. 81, 87, 389 A.2d 611, 614 (1978). In answering this question, our courts apply the following test:

In Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A.2d 566 [1945], we stated principles which are here applicable, namely that even though a plaintiff have no standing to bring his action, even though his complaint be demurrable, even though he fail to establish its allegations, even though the court should finally conclude that the relief he seeks should not be granted, not any or all of these circumstances would enter into, much less determine,

[ 278 Pa. Super. Page 360]

    the question whether the court had jurisdiction of the litigation. We there pointed out that the test of jurisdiction was the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged, whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case ; that the Act of 1925 was not intended to furnish a short cut to a determination of the issues of law or fact raised by the pleadings and that it was not concerned with matters going to the right of the plaintiff to recover on his cause of action but only with his right to have his cause of action heard and determined.

Witney v. Lebanon City, 369 Pa. 308, 311-12, 85 A.2d 106, 108 (1952) (emphasis in original).

In applying this test, our courts have consistently held that a contractual provision requiring the parties to submit their dispute to binding arbitration does not affect the subject matter jurisdiction of the trial court. See, e. g., Woodward Heating & Air Conditioning Co. v. American Arbitration Association, 259 Pa. Super. 460, 462-463, 393 A.2d 917, 918-19 (1978); Wechsler v. Newman, supra, 256 Pa. Super. at 88, 389 A.2d at 614 (collecting cases). Consequently, without deciding whether, pursuant to their contracts, appellees' non-judicial remedies were the exclusive means of challenging Dean Davenport's reappointment, we hold that the availability of such remedies could not oust the lower court's subject matter jurisdiction over this case.

Alternatively, appellants contend that the lower court cannot have subject matter jurisdiction until appellees first exhaust their non-judicial remedies. "Where . . . an administrative remedy is statutorily prescribed the general rule is that a court-be it a court of equity or a court of law-is without jurisdiction to entertain the action." Lilian v. Commonwealth, 467 Pa. 15, 18, 354 A.2d 250, 252 (1976). See 1 Pa.C.S.A. § 1504. In Brog v. Commonwealth, Department of Public Welfare, 43 Pa. Commw. 27, 401 A.2d 613 (1979),

[ 278 Pa. Super. Page 361]

    the defendant argued that the plaintiffs' failure to exhaust an administrative remedy provided in Department of Public Welfare regulations deprived the court of subject matter jurisdiction. In upholding defendant's argument, the Commonwealth Court reasoned that although the administrative remedy was not specifically provided by statute, the regulations had been adopted pursuant to statutory mandate and therefore have the force and effect of law.

We need not decide whether appellees were contractually required to exhaust their non-judicial remedies before instituting this action. Assuming, arguendo, that they were so required, we conclude that their failure to exhaust those remedies did not oust the lower court's jurisdiction. Unlike the regulations in Brog, supra, the non-judicial remedies in this case were not adopted pursuant to the mandate of any statute. Moreover, we have stated that "private parties cannot contractually alter the rules of jurisdiction which pertain in this Commonwealth." Wechsler v. Newman, supra, 256 Pa. Super. at 90, 389 A.2d at 615. Accordingly, we hold that the lower court had subject matter jurisdiction to entertain this action.*fn6 Because the only question before us

[ 278 Pa. Super. Page 362]

    on this appeal is whether the lower court had jurisdiction, Wechsler v. Newman, supra, we affirm the lower court's order.*fn7

Order affirmed and case remanded for further proceedings.


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