In re Employees of Student Services, Inc.

Opinion by

Judge Mencer,

Student Services, Inc. (Employer) appeals from an order of the Court of Common Pleas of Erie County which affirmed a final ordér of the Pennsylvania Labor Relations Board (Board). We reverse.

Employer, a nonprofit organization, operates a bookstore, bowling alley, vending machines, and other services at Edinboro State College. On December 6, 1974, the Retail Clerks Union, Local 1538, filed a petition for representation with the Board and requested, pursuant to Section 603 of the Public Employe Relations Act (PERA),¹ a hearing and an election. After several hearings, an election was held on March 4, 1976, at which time the union prevailed, following which the Board entered a nisi order of certification. Employer challenged both the jurisdiction of the Board and procedural deficiencies in the election process. The Board and the lower court rejected these arguments, and this appeal followed.

Employer’s first argument is that it is not a public employer within the meaning of PERA and that, therefore, the Board was without jurisdiction. We agree. Section 301(1) of PERA, 43 P.S. §1101.301(1), defines “public employer”, in pertinent part, as “any nonprofit organization or institution and any charitable, religious, scientific, literary, recreational, health, educational or welfare institution receiving grants or appropriations from local, State or Federal governments.” In Brownsville General Hospital v. Pennsylvania Labor Relations Board, 15 Pa. Commonwealth Ct. 428, 325 A.2d 662 (1974), we interpreted this section to mean that a nonprofit organization must receive grants or appropriations from local, state, or federal governments in order to qualify as a public employer. Our rationale then was that if all nonprofit organizations were deemed public employers, such an interpretation would have “the unintended result of encompassing many private employers who have chosen the non-profit form of conducting their business and who receive no governmental support.” Id. at 434, 325 A.2d at 665. We see no reason to depart from that rationale.²

It is undisputed that Employer is a nonprofit corporation organized under the laws of the Commonwealth of Pennsylvania. Employer is not a part of the organization of Edinboro State College, receives no contributions from the College or the State, and is not administered by the College. The bookstore, bowling alley, and other services provided by the employer, however, are housed in buildings owned by the Commonwealth, for the use of which Employer pays no rent. There is no written contract regarding rent. The issue, then, becomes whether this lack of rent constitutes a “grant or appropriation” by the Commonwealth, such that Employer is a public employer under PERA.

“‘[T]he word “appropriation”, when used in the constitutional or legislative sense . . . means a designation of money raised by taxation to be withdrawn from the public treasury for a specifically designated purpose.’ ” Commonwealth v. Perkins, 342 Pa. 529, 532, 21 A.2d 45, 48 (1941), aff’d per curiam, 314 U.S. 586 (1942); Brownsville, supra at 434, 325 A.2d at 665. Similarly, a grant requires an active transfer from a governmental unit to another entity. See, e.g., Section 25 of the Local Health Administration Law, Act of August 24, 1951, P.L. 1304, as amended, 16 P.S. §12025; Section 404 of the Flood Plain Management Act, Act of October 4,1978, P.L. 851, 32 P.S. §679.404; Section 6 of the Pennsylvania Sewage Facilities Act, Act of January 24,1966, P.L. (1965) 1535, as amended, 35 P.S. §750.6.

Here, the College is foregoing or waiving a right it may have to collect rent from Employer. Although this results in some benefit to Employer, we do not believe that the legislature meant to include this factual situation within the meaning of “grants or appropriations.”

Order reversed.

Order

And Now, this 6th day of February, 1980, the order of the Court of Common Pleas of Erie County, dated October 3,1977, is hereby reversed.

This decision was reached prior to the expiration of the term of office of Judge DiSalle.

1 Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.603.

2 Although the writer of this opinion filed a dissenting opinion in Brownsville General Hospital v. Pennsylvania Labor Relations Board, supra, we recognize that the holding in Brownsville continues to be applicable to the subject matter"of this lawsuit.