Jersey Shore Area School District v. Jersey Shore Education Ass'n

548 A.2d 1202, 519 Pa. 398, 1988 Pa. LEXIS 247

• Court: Supreme Court of Pennsylvania
• Decided: October 17, 1988
• Docket: 26 M.D. Appeal Docket 1987
• Status: Published

Opinions

OPINION OF THE COURT

STOUT, Justice.

This appeal is brought by the members of the Jersey Shore Education Association, which represents the teachers of the Jersey Shore Area School District.¹ In it we are asked to reconcile that provision of the Public Employees Relations Act (PERA), 43 Pa.Stat.Ann. §§ 1101.101-.2301 (Purdon Supp.Pamph.1988), which gives teachers the right to strike,² with that provision of the Public School Code, 24 Pa.Stat.Ann. §§ 15-1501 to 16-1613 (Purdon 1962 & Supp. 1988), which mandates that school districts provide 180 days of pupil instruction. Specifically, PERA provides:

If a strike by public employes occurs after the collective bargaining processes set forth in Sections 801 and 802 of Article VIII of this act have been completely utilized and exhausted, it shall not be prohibited unless or until such a strike creates a clear and present danger or threat to the health, safety or welfare of the public.

43 Pa.Stat.Ann. § 1101.1003 (Purdon Supp.Pamph.1988) (emphasis added). On the other hand, the Public School Code provides: “All public kindergartens, elementary and secondary schools shall be kept open each school year for at least one hundred eighty (180) days of instruction for pupils.” 24 Pa.Stat.Ann. § 15-1501 (Purdon 1962 & Supp. 1988).

On September 10, 1984, after only four days of pupil instruction, the teachers struck against appellee, Jersey Shore Area School District.³ On October 8, 1984, the school district filed for an injunction in the Court of Common Pleas of Lycoming County, in an effort to force the teachers back to work. A hearing was held on October 10,1984, following which the Chancellor issued an injunction ordering the teachers back to work on October ll.⁴ The Association filed for reconsideration and an additional hearing was held on October 23, 1984. The Chancellor refused to lift the injunction. The Association appealed to the Commonwealth Court, which affirmed solely on the basis of the Chancellor’s finding that the school district’s impending inability to schedule 180 days of instruction presented a clear and present danger to the public because of a threatened loss of state subsidies. 99 Pa.Commw. 163, 512 A.2d 805 (1986). See School District of Pittsburgh v. Commonwealth Dept. of Educ., 492 Pa. 140, 422 A.2d 1054 (1980). While we disagree with the Commonwealth Court that the threatened loss of state subsidies alone would support the issuance of an injunction, we nonetheless affirm on the record as a whole.

We must first address the issue of mootness. Because the teachers have long since returned to the classroom, this appeal is technically moot. Yet, the issue it raises is one of important public interest, capable of repetition, which is apt to elude review. Therefore, we shall entertain this appeal. See, e.g., Wiest v. Mt. Lebanon School Dist. 457 Pa. 166, 169 n. 1, 320 A.2d 362, 364 n. 1, cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974). Compare Commonwealth v. Joint Bargaining Comm., 484 Pa. 175, 398 A.2d 1001 (1979) (signing of new contract rendered appeal moot).

Next we turn to the standard of review accorded decisions by an equity court. Myriad ceses have long emphasized that it is narrow. Scientific Living v. Hohensee, 440 Pa. 280, 270 A.2d 216 (1970), cert. denied, 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971); Shapiro v. Shapiro, 424 Pa. 120, 224 A.2d 164 (1966), overruled on other grounds, Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975); Steinmeyer v. Siebert, 190 Pa. 471, 42 A. 880 (1899). Ordinarily, a Chancellor’s findings of fact will not be disturbed absent “an abuse of discretion or a capricious disbelief of the evidence or a lack of evidentiary support on the record for such findings.” Shapiro, 424 Pa. at 127, 224 A.2d at 168. A Chancellor’s conclusions of law bear stricter scrutiny, see id., 424 Pa. at 127, 224 A.2d at 168. This Court has stated that it will not reverse a grant of injunctive relief “unless ... the rules of law relied on are palpably wrong or clearly inapplicable.” Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A.2d 626, 627 (1956) (citations omitted). Bearing in mind this standard of review, we turn to the evidence.

At the first hearing the superintendent for the school district testified that he had prepared a revised school calendar. Allowing for six snow days⁵ and two nonmandatory holidays,⁶ the superintendent had concluded that October 15, 1984, would be the last date upon which the teachers could return to the classroom while still ensuring an educationally-sound schedule. In addition, the superintendent testified extensively as to the financial impact of the strike. He stated that the school district stood to lose $26,637.00 per day in state subsidies for each day it fell short of 180 days of instruction. At the time of the hearing the superintendent estimated that the strike had cost the school district $65,944.00 in unemployment compensation, additional salaries and other costs incidental to the strike.

With respect to the students, the superintendent stated that the strike placed the seniors at a competitive disadvantage in terms of SAT testing. Seniors also faced deadlines with respect to scholarship applications and were bereft of guidance counseling services. The longer the strike, the more deleterious its effect on the future of the seniors.

With respect to other grades, students would be at a competitive disadvantage in taking state-mandated tests to determine remedial needs. With only four days of instruction, some students could be placed in remedial courses which they would not otherwise have needed. Moreover, in the event the school district could not administer these tests due to the continuation of the strike, it would lose state funding for the remedial courses themselves.

The superintendent stated that interference with a regular pattern of study, as had occurred in this strike, results in a loss of learning capacity, which increases with the length of the interruption. In support of this hypothesis he cited test scores from a previous year showing a drop in student aptitudes following a strike.

Finally, the superintendent expressed his concern that the strike deprived eligible students of a free, hot lunch, possibly the only such meal they received, while working parents were experiencing difficulties with interim babysitting arrangements.

The school teachers presented the testimony of two experts. The first disputed the superintendent’s interpretation of prior test scores insofar as their reflecting a decrease in pupil learning due to the previous strike. This expert opined that it was inappropriate to compare different student groups for such a purpose. The second expert testified that, as of the date of the hearing, the school district would actually have a net savings in salaries and benefits of $24,199.00 over the potentially lost subsidy.

Having heard this evidence, the Chancellor issued the injunction on the basis of his conclusion that all of the evidence had demonstrated the existence of a clear and present danger to the health and welfare of the community.⁷

At the reconsideration hearing, little additional evidence was presented except that two officials of the Department of Education testified as to departmental policy with regard to withholding subsidies and as to their calculations with regard to the last possible date upon which the teachers would have to return to the classroom in order to ensure a 180-day calendar.⁸ Following this testimony, the Chancellor refused to lift the injunction.

Since this is an issue of first impression for this Court, we shall begin our legal analysis with a brief review of the decisions of the Commonwealth Court that have addressed it. In Armstrong School Dist. v. Armstrong Educ. Ass’n, 5 Pa.Commw. 378, 291 A.2d 120 (1972), Commonwealth Court grappled with the definition of “clear and present danger or threat” in analogizing it to First Amendment, free speech and association cases. Id. at 383, 291 A.2d at 123. The Court concluded:

In this light, the determination of whether or not a strike presents .a clear and present danger to the health, safety of welfare of the public must, therefore, require the court to find that the danger or threat is real or actual and that a strong likelihood exists that it will occur. Additionally, it seems to us that the “danger” or “threat” concerned must not be one which is normally incident to a strike by public employees. By enacting [PERA] which authorizes such strikes, the Legisature may be understood to have indicated its willingness to accept certain inconveniences, for such are inevitable, but it obviously intended to draw the line at those which pose a danger to the public health, safety or welfare.

Id. at 383-84, 291 A.2d at 124. In reversing the issuance of an injunction, the Court stated that the disruption of routine-administrative procedures and the cancellation of extracurricular activities were inconveniences inherent in a teachers’ strike, inconveniences envisioned by the legislature which, if considered a “clear and present danger or threat,” would virtually nullify the right to strike. Id. at 385, 291 A.2d at 124. In dicta the Court also stated that if a strike lasted so long as to make the 180-day calendar an impossibility, and the cessation of subsidies a possibility, it properly could be enjoined.

In Philadelphia Fed. of Teachers v. Ross, 8 Pa.Commw. 204, 301 A.2d 405 (1973), the Court affirmed the issuance of an injunction where the board presented evidence of sharply increased gang activity that necessitated $133,000.00 per day in increased police protection, endemic student underachievement, possible loss of state subsidies, and the disqualification of seniors from entering college. The Court opined:

It is neither possible nor prudent to state with precision that any one or more given circumstances surrounding a strike by school teachers will constitute a threat to the health, safety or welfare of the public. Nor do we decide that any particular number of days of lost instruction caused by a strike produces such a threat.

Id. at 215, 301 A.2d at 411. See also Bethel Park School Dist. v. Bethel Park Fed. of Teachers, 54 Pa.Commw. 49, 52, 420 A.2d 18, 19 (1980) (loss of state subsidies, instructional days, vocational job training, higher education and special education opportunities, counseling, social and health services, extracurricular programs and employees’ work and wage opportunities constituted a clear and present danger to the community).

In Bellefonte Area School Bd. v. The Bellefonte Area Educ. Ass’n, 9 Pa.Commw. 210, 304 A.2d 922 (1973), the Court reversed the issuance of an injunction in concluding that the facts did not support a finding of “clear and present danger or threat.” Since in that case sufficient make-up days remained to replace the thirteen strike days, therefore, the loss of state subsidies was not imminent. Moreover, the possible loss of participation in an educational quality assessment program was not deemed harmful enough to justify the injunction. See also Wilkes-Barre Educ. Ass’n v. Wilkes-Barre Area School Dist., 105 Pa. Commw. 165, 523 A.2d 1183 (1987), appeal denied, 516 Pa. 645, 533 A.2d 715 (1987) (issuance of injunction prohibiting selective strikes resulting in only short periods of lost instruction yet possibly usurping school district’s managerial prerogatives, reversed for insufficient evidence of a threat or danger to the students’ health, safety or welfare). In a vigorous concurring opinion, Judge Kramer inveighed in Bellefonte:

All of the parties to this case and the majority opinion blithely speak of using “summer vacations” or holidays as a means of making up teachers’ strike days to preserve state education subsidy funds. Not one word of concern is expressed for those school students who work on holidays and vacation days to stay in school. Not one word is utilized to protect high school seniors who must attend college summer school to gain admittance to college in the fall. Not one word is devoted to what happens if high school senior’s grades are not ready for timely submission to college for the fall admission. Not one word is said because the school children are not represented. They are pawns in an adult game of economics. If the teachers and the school district agree to use all legal holidays, all weekends and all vacation time to make up for the lost days of a strike, does that mean the students will have no rest? Do they have any rights?

9 Pa.Commw. at 220, 304 A.2d at 926 (Kramer, J., concurring).

In Bristol Twp. Educ. Ass’n v. School Dist. of Bristol, 14 Pa.Commw. 463, 322 A.2d 767 (1974), although the findings of fact reflected lost educational programs, lost salaries, lost community programs and services, disadvantages for college-bound seniors, the deprivation of free lunches to students, and difficulties for working parents, the Court affirmed the enjoining of a twenty-six day strike solely because the Court determined that the potential loss of state subsidies created a danger or threat to the health, safety or welfare of the public.

More recently, in Scanlon v. Mount Union Area Bd. of School Directors, 51 Pa.Commw. 83, 415 A.2d 96 (1980), aff'd, 499 Pa. 215, 452 A.2d 1016 (1982), Commonwealth Court held that the scheduling of 180 days by school districts was mandatory, not discretionary, while stating in dicta that:

We are aware that strike activity might lawfully continue for such a period as to render the provision of 180 instructional days impossible within the terms of the Code defining the school year; in that event, boards must amend their schedules to comply as fully as is possible within the applicable school year.

Id. at 92, 415 A.2d at 100 (emphasis added).

Finally, in Armstrong Educ. Ass’n v. Armstrong School Dist, 116 Pa.Commw. 571, 542 A.2d 1047 (1988), Commonwealth Court, citing the case sub judice, affirmed the issuance of an injunction where a strike threatened to foreshorten the 180-day instructional calendar.

This brief history reflects judicial difficulty, and at times divergence, in reconciling the right to strike with the requirement of 180 instructional days. While some cases have looked at a plethora of factors, including the loss of state subsidies, others have looked only at the loss of state subsidies in determining that it per se creates a clear and present danger or threat. We do not believe that the language of PERA necessitates judicial hand-wringing or hair-pulling. We hold that the loss of state educational subsidies for failure of a school district to schedule 180 days of instruction for pupils, alone, does not constitute a “clear and present danger or threat to the health, safety or welfare of the public.”⁹ In this case the school district demonstrated beyond peradventure the existence of a “clear and present danger or threat to the health, safety or welfare of the public.” Without focusing on any one of the myriad economic and other facts upon which the school board relied, without weighing the interests of seniors as weightier that those of kindergartners, we conclude that, in conjunction, these factors created a school district which, although perhaps able to “make up” a day or two of instruction, could not “make up” the actual, the impending and the ever-increasing harm which was being wrought upon its students. On this record, the health and welfare of the students, who cannot and must not be treated as a category separate from the public at large, was clearly endangered and threatened.¹⁰ The order of the Commonwealth Court is affirmed.

LARSEN, J., files a dissenting opinion in which PAPADAKOS, JJ., joins. ZAPPALA, J., files a dissenting opinion.

1 . The Pennsylvania Federation of Teachers has filed an amicus curiae brief in support of the teachers.

2 . In enacting this legislation, Pennsylvania became but the second state to recognize the right of public employees to strike. This recognition came upon the heels of illegal strikes which precipitated similar enactments in many other jurisdictions as legislatures sought to control and limit illegal strikes. See generally Comment, Striking a Balance in Bargaining with Public School Teachers, 56 Iowa L.Rev. 598 (1971); Comment, Public Employees: No Right to Strike, 38 Tenn.L.Rev. 403 (1971).

3 . The Pennsylvania School Boards Association has filed an amicus curiae brief in support of the school board.

4 . At the conclusion of the hearing, after the Chancellor announced his intention to order the teachers back to work on October 15, 1984, the teachers indicated they would return to the classroom voluntarily on October 11. The Chancellor thereupon amended his decision so as to require the teachers to return to work on October 11.

5 . The superintendent allowed for six snow days because an official at the Department of Education informed him allowance had to be made for the same number of such days as had been needed in the previous year. Six such days had been needed in the academic year preceding the strike. At the second hearing, the superintendent further explained that he scheduled these days because the geographic make-up of the district rendered it more prone to declaring snow days.

6 . The superintendent allowed for these additional holidays because they fell on Mondays preceding Christmas and New Years. In the superintendent's opinion, it would have been educationally unsound to require the students to attend classes sandwiched between Sunday and these statutorily-mandated holidays.

7 . In announcing his decision to issue the injunction, the Chancellor referred primarily to the potential subsidy loss. His opinion, however, makes it clear that he relied equally upon the evidence of harm to the students themselves.

8 . Much ado has been made over whether, in light of this testimony, the operative cut-off date was October 17, 1988, or a few days later, thereby making the injunction premature. Our holding renders this myopic distinction immaterial.

9 . We resist the facile temptation to legislate judicially a 180-day limit to the teachers’ right to strike. We leave it to the legislature, well aware of the requisites of the Public School Code when it enacted PERA, to decide whether such a limit should be imposed. Until that time, we shall consider the length of the instructional calendar and the loss of state funding as but one factor in the proper issuance of an injunction.

10 . It is interesting to note that, even when addressing the issue of the loss of state subsidies, both lower courts focused upon the economic harm to the school district rather than the harm to the more than three thousand students in the district. We are mindful of the words of Chief Justice Earl Warren, who in the landmark decision of Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), wrote for a unanimous Court almost twenty-five years ago: "[Education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” Id. at 493, 74 S.Ct. at 691.