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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Greater Nanticoke Area Education Association v. Greater Nanticoke Area School District, Appellant Northwest Area Education Association v. Northwest Area School District, Appellant BEFORE: : : : : : : : : : : : : : : :

No. 1250 C.D. 2007

No. 1251 C.D. 2007 Argued: October 30, 2007

HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge FILED: December 18, 2007

OPINION BY JUDGE SIMPSON

These consolidated appeals raise a single issue: whether the Luzerne County Court of Common Pleas (trial court) had reasonable grounds to issue preliminary injunctions in favor of the Greater Nanticoke Area Education Association and the Northwest Area Education Association (collectively, Associations).1 By separate orders, the trial court enjoined the Greater Nanticoke Area School District and the Northwest Area School District (collectively, School Districts) from withdrawing from a 1999 Agreement and Declaration of Trust Establishing the Northeast Pennsylvania School Districts Health Trust (Trust). The
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By order of July 10, 2007, we consolidated the appeals.

primary purpose of the Trust is to obtain healthcare benefits for its beneficiaries. Enjoining School Districts' from withdrawing from the Trust, the trial court found School Districts' actions presented immediate and irreparable harm to Associations' bargaining power.

Also at this time we consider Associations' motion to quash School Districts' appeals. Associations contend the preliminary injunctions are not final appealable orders pursuant to Pa. R.A.P. 341.2

After careful review, we affirm the trial court's orders issuing preliminary injunctions in favor of Associations and deny Associations' motion to quash. We further remand this matter to the trial court for a permanent injunction hearing.

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Pa. R.A.P. 341, provides: (a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court. (b) Definition of final order. A final order is any order that: (1) disposes of all claims and of all parties; or (2) is expressly defined as a final order by statute; or (3) is entered as a final order pursuant to subdivison (c) of this rule.

Subdivisions (c), (d), and (e) are not applicable here.

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I. By way of brief background, 14 school districts and their labor organizations entered into the Trust in 1999. Reproduced Record (R.R.) at 79a114a. The Trust's primary objective is to purchase healthcare benefits at

reasonable costs for its beneficiaries. Id. at 80a. For our purposes, it is important to note each participating school district and labor organization is represented by a designated Trustee, and each Trustee has one vote. Id. at 90a-92a. A majority vote is required for most actions; however, certain actions require a supermajority, or two-thirds vote, for approval. Id. These actions include: a change in any provision of the Trust; a change or modification to any program or plan of benefits; and, a change in the identity of any insurance carrier. Id.

Particularly relevant here is Section 5.4 of the Trust. It provides, in pertinent part: Section 5.4 WITHDRAWAL OF PUBLIC SCHOOL ENTITY OR LABOR ORGANIZATION FROM PARTICIPATION IN THE TRUST (a) Any public school entity party to this [Trust] may withdraw from the Trust ... provided: (1) on or before June 30, (the "Notice date"), it provides written notice to the Trustees of its intention to withdraw from the Trust ... which withdrawal shall become effective no earlier than twelve (12) months after the aforesaid June 30 "Notice date"; ... (3) the withdrawing public school entity takes such actions as are necessary to prevent a termination or lapse of coverage for the Participants in the Trust ... who are 3

employees of the withdrawing public school entity and their Beneficiaries and dependents whose coverage under the Plan will be terminated as a result of the public school entity's withdrawal from the Trust ... including provisions for securing of a waiver or avoidance of any exclusions from post-withdrawal coverage based [on] a claim of pre-existing illness or injury; and (b) nothing in this Section 5.4 is intended to waive or otherwise render inapplicable any duty to bargain imposed upon any public school entity which is party to this [Trust] with respect to the issue of withdrawal from the Trust ... or to impair any contract provision which requires that the public school entity remain a member of the [Trust]. (c) Nothing in this Trust ... shall be construed to authorize or permit any public school entity to violate its Collective Bargaining Agreement or to unilaterally modify any aspect of the health benefits provided for therein. Id. at 104a-06a. Pursuant to this Section, School Districts timely notified the Trustees of their intention to withdraw from the Trust as of June 30, 2007. Id. at 119a-20a.

Two days before the effective withdrawal date, Associations and School Districts appeared before the trial court. Associations presented the trial court with two substantially similar equity complaints. The complaints include averments that Associations and School Districts are parties to expired collective bargaining agreements (CBA) and no successor agreements have been reached. Id.

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at 5a, 11a.

Each CBA requires School Districts to provide their member

employees with healthcare coverage.3

According to further averments, School Districts and Associations are parties to the Trust; however, School Districts voted to withdraw from the Trust without bargaining with Associations prior to voting. In addition, School Districts failed to present Associations with an alternative to the Trust from which Associations may determine the equivalency of the healthcare benefits. Thus, School Districts violated their respective CBAs. Also of import, Associations averred they filed unfair labor practice charges with the Pennsylvania Labor Relations Board (PLRB).

Characterizing their applications as ex parte, or without notice to School Districts, Associations requested preliminary injunctions enjoining School Districts from withdrawing from the Trust. To support their applications,

Associations averred School Districts' withdrawal from the Trust would cause immediate and irreparable harm by disrupting the labor peace and status quo, and would result in greater injury to Associations than that which would result to

More specifically, the Greater Nanticoke Area School District CBA requires the school board to provide its employees and their dependents a health insurance plan consisting of Blue Cross/Blue Shield Prevailing Fee 100 Plan X or its equivalent, with the association making the determination of equivalency. R.R. at 134a. The CBA was effective September 1, 1998 through August 31, 2005. Similarly, the Northwest Area School District CBA requires the school district to provide association members and their dependents with Blue Cross/Blue Shield/Major Medical or its equivalent. R.R. 166a. The CBA was effective September 1, 2000 through August 31, 2005.

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School Districts if enjoined from withdrawing. Finally, Associations averred they have a clear right to pursue their administrative remedies with the PLRB.

Relying heavily on our decision in Frackville Borough Police Department v. Pennsylvania Labor Relations Board, 701 A.2d 632 (Pa. Cmwlth. 1997), School Districts opposed Associations' applications. They argued

withdrawal from the Trust was not subject to mandatory collective bargaining because School Districts propose only a change in brokers. Under Frackville, a change in brokers is a managerial function not subject to mandatory collective bargaining.

School Districts further asserted that the proposed brokerage change will not affect the current level of healthcare benefits. They identified Elite

Brokerage Services as the designated broker. R.R. at 196a. To support their contention a change in brokers will not affect the current level of benefits, School Districts attached to their trial court brief an affidavit of Elite's vice-president attesting that the Associations' healthcare benefits will not be altered. R.R. at 210a-11a. As further support, School Districts attached several e-mails from Elite employees to unidentified individuals indicating the same. R.R. at 197a-200a.

Executing orders Associations supplied, the trial court issued two nearly identical orders on June 28, 2007. The orders, concluding School Districts' actions would cause immediate and irreparable harm to Associations' bargaining power, enjoined School Districts from unilaterally withdrawing from the Trust. The trial court also set a hearing for the next day. School Districts, however, filed

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an appeal with this Court within hours of the trial court's orders. Consequently, the trial court declined to hold the hearing.

II. At the onset of this appeal, Associations filed a motion to quash School Districts' appeals on the ground the trial court's orders do not finally resolve the cases.4 As such, the trial court's orders are not final appealable orders pursuant to Pa. R.A.P. 341. Claiming that the preliminary injunctions here are

Associations also filed a motion to dismiss the appeals as moot, alleging School Districts committed themselves to remain in the Trust until June 2008. Associations attached to their motion School Districts' June 2007 letters to the Trustees indicating their intention to withdraw in June 2008. As a result, Associations claim no immediate and irreparable harm. Opposing the motion, School Districts aver the 2007 withdrawal notices do not repudiate their 2006 notices, and are necessary to comply with the Trust's notice provisions for withdrawal in 2008. School Districts' answer suggests they will immediately withdraw from the Trust if the preliminary injunctions are dissolved, having given timely notice in 2006 of their intention to withdraw after June 30, 2007. In addition, we note this situation is capable of repetition yet evading review until the PLRB rules on Associations' unfair labor practice charges. Under these circumstances, the matter is not moot. In re Canvass of Absentee Ballots of November 4, 2003 Gen. Election, 577 Pa. 231, 843 A.2d 1223 (2004). In response, School Districts filed two motions of their own. In the first motion, School Districts moved to strike from Associations' motion to dismiss the 2007 withdrawal notices on the ground these documents are not part of the original record. See Pa. R.A.P. 1921. We agree the exhibits should be stricken from Associations' motion to dismiss. McCaffrey v. Pittsburgh Athletic Ass'n, 448 Pa. 151, 293 A.2d 51 (1972) (appellate court is confined to record before it, excluding matters of facts asserted in briefs). In their second motion, School Districts seek sanctions in the nature of attorney's fees for preparing the motion to strike. We deny School Districts' request. Associations filed their motion to dismiss based solely on the belief School Districts committed to remaining in the Trust until June 2008. Assuming they no longer were immediately and irreparably harmed, Associations merely exhibited candor toward the Court regarding their burden of proof. Cf. Pa. R.A.P. 2744 (counsel fees may be awarded where conduct of the party against whom costs are imposed is dilatory, obdurate or vexatious).

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equivalent to non-appealable temporary restraining orders,5 Associations assert Pa. R.A.P. 311, governing interlocutory appeals as of right, is not applicable.

Initially, we note, Pennsylvania does not recognize temporary restraining orders. Bloomingdale's by Mail Ltd. v. Dep't of Revenue, 513 Pa. 149, 153, 518 A.2d 1203, 1205 n.3 (1986); E. Stroudsburg Univ. v. Hubbard, 591 A.2d 1181 (Pa. Cmwlth. 1991). Our functional equivalent is the preliminary injunction granted without notice to the adverse party. Bloomingdale's by Mail Ltd.

Notwithstanding Associations' characterization, the trial court did not grant the preliminary injunctions without notice to School Districts, and Associations' analogy to federal temporary restraining orders disregards our Rules of Civil Procedure.6 emphasis:
See Nutrasweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 689 (3d Cir. 1997) and Vuitton v. White, 945 F.2d 569 (3d Cir. 1991) (the short lived nature of temporary restraining orders ensures prompt merits review on the request for injunctive relief, which is then subject to immediate appellate review under 28 U.S.C.

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