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PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION v. GREATER JOHNSTOWN SCHOOL DISTRICT AND NEIL WALKER (08/03/83)

decided: August 3, 1983.

PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC., APPELLANT
v.
GREATER JOHNSTOWN SCHOOL DISTRICT AND NEIL WALKER, NATURAL GUARDIAN OF HIS SON, MICHAEL WALKER, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Cambria County in the cases of Greater Johnstown School District and Neil Walker, Natural Guardian of his son, Michael Walker v. Pennsylvania Interscholastic Athletic Association, No. 1981-4773, dated January 6, 1982 and February 25, 1982.

COUNSEL

William M. Young, Jr., with him Rod J. Pera, McNees, Wallace & Nurick, for appellant.

Myron I. Markovitz, with him John J. Kuzmiak, Gleason, DiFrancesco, Shahade & Markovitz, for appellees.

President Judge Crumlish, Jr. and Judges MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 76 Pa. Commw. Page 67]

Two appeals by the Pennsylvania Interscholastic Athletic Association (PIAA) from orders of the Court of Common Pleas of Cambria County have been consolidated for our disposition. A brief review of the procedural posture of this case is necessary to clarify which order or orders are before us for disposition.

Greater Johnstown School District (GJSD) and Neil Walker as natural guardian for his son Michael Walker (collectively Appellees), filed a "Motion for a Preliminary Injunction Without a Hearing"*fn1 which the trial court granted on December 4, 1981. No underlying complaint in equity was filed. Rule No. 1501 of the Pennsylvania Rules of Civil Procedure states that except as otherwise provided, actions in equity will be in accordance with the rules relating to assumpsit. Pa. R.C.P. No. 1007 states that an action may be commenced by a praecipe for a writ of summons, a complaint or an agreement for an amicable action. None of these were filed in the instant case.

In its order granting the ex parte preliminary injunction, the trial court directed that a hearing be held and fixed bond. Hearings were held on two different dates. At the outset of the first hearing, Appellees stated that the matter for hearing was their request for a "permanent injunction". PIAA protested that the hearing was really for a preliminary injunction. The trial judge indicated that he would receive the testimony "and permit either party to

[ 76 Pa. Commw. Page 68]

    either move to dismiss or move to make the injunction permanent or move to continue the present order". The trial court subsequently filed its "Findings, Opinion and Adjudication" in support of an order dated January 6, 1982 which stated, inter alia, that:

[T]he preliminary injunction now in effect by order of this court be and hereby is made permanent. . . .

It appears to us that Pa. R.C.P. No. 1531(e) restricts the trial court in such circumstances to dissolving, continuing or modifying a preliminary injunction previously entered without hearing.

In any event, PIAA filed an appeal to this Court from the trial court's order of January 6, 1982*fn2 and, on the same date, filed exceptions with the trial court to its adjudication. Appellees filed an answer to PIAA's exceptions and extensive briefs were filed with the trial court. On February 25, 1982, the trial court dismissed the exceptions because it said it no longer had jurisdiction in view of the appeal to this Court. PIAA has appealed from that order as well.*fn3

We note initially that with certain exceptions not here relevant, where an appeal is taken, the trial court may no longer proceed further in the matter. Pa. R.A.P. 1701. While it was appropriate for the trial court to note its lack of jurisdiction in its order of February 25, 1982, it was not authorized to dismiss PIAA's exceptions. No harm has come from this procedural error, however, since PIAA fully protected itself by filing appeals from both orders.

It is necessary for this Court to determine which appeal is now before it since ...


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