Appeal from the Order in the Court of Common Pleas, Civil, of Philadelphia County, at No. 3402 March Term, 1984
Richard H. Harkowitz, Philadelphia, for appellant.
James J. Gillespie, Jr., Philadelphia, for appellees.
Montemuro, Johnson and Cercone, JJ. Johnson, J., files a dissenting opinion.
[ 359 Pa. Super. Page 207]
The National Association of Basketball Referees (NABR), a labor organization and collective bargaining unit, brings this appeal from two orders of May 14, 1985, entered in the Court of Common Pleas of Philadelphia County. The first of these denies appellant's motion for summary judgment; the other denies appellant's motion to dismiss. On the same date the court reaffirmed a prior order (April 5, 1985) granting injunctive and declaratory relief.*fn1
[ 359 Pa. Super. Page 208]
The genesis of this case was a meeting of the NABR membership held March 12, 1984, at which a majority of the members voted (18 to 10) to discharge from his position as retained counsel for the union, Richard G. Phillips, Esq., involuntary plaintiff/appellee herein. Thereafter, on March 19, ten individual members*fn2 filed a complaint in equity seeking injunctive and declaratory relief, claiming Phillips' dismissal to have been violative of certain employment agreements with the union. It was asserted that because of acceleration clauses in these contracts, the breach would occasion such significant money damages as to adversely affect both the future of the union as a whole, and its membership as individuals whose employment would be jeopardized. The court acceded to appellees' requests, by issuing a temporary restraining order, and after a series of hearings, continued operation of the injunction. An Overseer*fn3 was appointed to arrange for and conduct a reprise of the disputed election. This meeting was never convened, as, after a series of attempts at negotiations, the court rescinded its order for a vote on Phillips' employment until after a trial on the merits of the underlying complaint. Appellants filed subsequent motions for summary judgment (December 18, 1984) and to dismiss (January 29, 1985), both of which were denied on May 14, 1985, precipitating this appeal.
Appellant claims that the court erred with respect to all of these orders, positing as its sole supporting theory the impropriety of a declaratory judgment action under the circumstances of this case.
[ 359 Pa. Super. Page 209]
Specifically, it is argued that the outcome of a trial on the merits, that is, whether and to whom liability would accrue from breach of Phillips' contracts, would, in view of the trial court's finding that the original vote was illegal, constitute an advisory opinion only, since there is no discharge unless and until a re-vote on termination is taken. Based on the premise that no controversy exists because Phillips was not in fact fired, appellant suggests that the court has only the alternatives of reinstating the results of the original vote, or vacating prior orders enjoining a new election.
Appellant's argument must fail.
The Declaratory Judgment Act, 42 Pa.C.S.A. § 7533, ...