Albert v. School District of Pittsburgh, 10185.
| Decision Date | 12 April 1950 |
| Docket Number | No. 10185.,10185. |
| Citation | 181 F.2d 690 |
| Parties | ALBERT v. SCHOOL DISTRICT OF PITTSBURGH et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Hymen Schlesinger, Pittsburgh, Pa., for appellant.
Mortimer B. Lesher, Pittsburgh, Pa., for appellees.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
The appeal at bar was taken from an order, orally made,1 by the court below refusing to grant a temporary restraining order to restrain a hearing to be conducted by the defendants or by some of them, in particular by "The Board of Public Education" of Pittsburgh on the question as to whether or not the appellant's, Dorothy Albert's, contract and tenure as a professional employee of the School District of Pittsburgh should be permanently terminated or ended because she has been charged with being a Communist or because she is a member of the Civil Rights Congress. This, it is alleged, has been designated as a Communist front organization by Attorneys General of the United States and the Committee on Un-American Activities of the House of Representatives of the United States Congress. By a resolution adopted March 28, 1950, the Board recited the allegations to which we have referred and resolved "That the contract with Miss Dorothy Albert as a professional employee of the School District of Pittsburgh be terminated in accordance with section 11222 of the Public School Code of 1949 which reads in part as follows: `The only valid causes for termination of a contract heretofore or hereafter entered into with a professional employe shall be * * * participating in un-American or subversive doctrines * * * on the part of the professional employe * * *'" and "that the date for a formal hearing on these charges against the appellant as provided in section 1127 of the Public School Code of Pennsylvania of 1949 be set for Tuesday, April 11, 1950 at 4 P.M."
On April 6, 1950 the appellant filed her complaint in the court below, seeking the interposition of a three-judge statutory court, to be constituted pursuant to the provisions of Section 2281, Title 28, United States Code Annotated, and for a temporary restraining order pursuant to Section 2284(3), alleging in substance that the action taken by the Board and the hearing contemplated by it, based on Sections 1122 and 11273 of the School Code of Pennsylvania of 1949, Laws of Pennsylvania, Volume 1, 1949, 24 P.S. § 1 — 101 et seq., were in derogation of the appellant's constitutional rights guaranteed to her by the First and Fourteenth Amendments to the Constitution of the United States. On April 7, 1950, when the court below, after hearing, denied appellant's application for a temporary restraining order, Albert appealed. The Board of Public Education of Pittsburgh and the other defendants to the action have moved, inter alia, to dismiss the appeal.
On April 8, 1950 the present writer, having received a certification from District Judge Gourley, to whom application was made, that there was a substantial federal question requiring the interposition of a Section 2284(1) court, designated the members of such a court in accordance with the statute.
The appeal at bar must be dismissed. We pass by the issue as to whether or not this court, as distinguished from the Supreme Court, has jurisdiction to entertain it, notice of appeal having preceded the making of the order constituting the three-judge statutory court. Cf. Sections 1253, 1291, 1292, 2281, and 2284, Title 28, United States Code; Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606 and Diggs v. Pennsylvania Public Utility Commission, 3 Cir., 180 F.2d 623. In the view that we take of the case it is not necessary for us to decide this question.
The appeal at bar is an interlocutory one, and, under the circumstances of the instant case and for reasons which will be set out hereinafter, what was stated in Morgenstern Chemical Co., Inc., v. Schering Corporation, 3 Cir., 181 F.2d 160, is apposite. Judge Hastie said of the order in the Morgenstern case that it lacked "* * the potential of drastic and far reaching effect on the rights of the parties which is characteristic of orders which decide the propriety of granting or refusing injunctions." In Cohen v. Beneficial Loan Corporation, 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, the Supreme Court said that Section 1292 indicates "* * * the purpose to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties." See also the authorities cited in the 12th paragraph of Judge Hastie's opinion in Morgenstern. Cf. Maxwell v. Enterprise Wall Paper Co., 3 Cir., 131 F.2d 400, 402. The order appealed from in the instant case is analogous to the decree in the Morgenstern case as distinguished from the judgment which was before the Supreme Court in Cohen v. Beneficial Loan. It does not possess the characteristics of an appealable interlocutory order for the reasons set out hereinafter. In so stating we do not exclude the possibility that appeal may lie from a temporary restraining order or an order denying temporary preliminary relief under other circumstances.
The appellant has, in effect, been suspended, though the resolution of the Board uses the word "terminated". The word "discharged" is used in the Public School Code to indicate the complete and final separation of the employee from the service. See Section 1130. Sections 1126 and 1127 provide for a hearing for the accused teacher, a professional employee, before the School Board (Board of School Directors). Section 1128 provides for the subpoenaing of witnesses both by the Board and by the accused teacher. Section 1129 states that a vote of two-thirds of the members of the Board is required to effect a discharge. Section 1130 provides for notice of discharge and also for the physical expunging of the charge itself from the records of the Board if the decision is in favor of the professional employee. The same section states that there shall be no abatement of salary or compensation if the decision is...
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