*218Dissenting Opinion by
Judge Blatt :It is with great reluctance that I dissent from the ably written and very persuasive opinion of the majority, and it is with equal regret that I find it impossible to agree with the distinguished judge of the Philadelphia Court of Common Pleas before whom the action was brought which is the subject of this appeal and whose order was not only defied after it was issued but promised defiance even before it was handed down. Moreover, I find myself most reluctant to take a position which may seem to favor a group of appellants who continued in open defiance of the lower court’s order even while appealing to this Court for relief. Respect for and compliance with orderly judicial process is essential for responsible self-government.
It is my considered opinion, however, that the majority is in error in two respects: (1) in holding that there was a strike in existence at the time when the original complaint was filed on Thursday, January 4, 1973, and (2) in holding, even if it could be accurately said that a strike did exist when this complaint was filed, that there was a “clear and present danger or threat to the health, safety or welfare of the public” either then or on Thursday, January 11, 1973, when the injunction was issued.
As to the existence of a strike on Thursday, January 4, 1973, the filing date of the complaint, the majority and the lower court judge are in evident disagreement. The lower court judge sustained the preliminary objections of the defendants, which alleged that no strike had yet occurred and that, therefore, none could yet be enjoined. He obviously believed that no strike yet existed, but he retained jurisdiction of the case in the anticipation that a strike would ultimately occur on Monday, January 8, 1973, as it did. The majority holds, on the other hand, that the strike actually began on *219September 5, 1972, was temporarily suspended on September 28, 1972, but was continually in existence up to January 4 and thereafter.
As I read the record, the strike here concerned began on Monday, January 8, 1978, and the lower court had no jurisdiction to entertain a complaint four days prior to that date. As the majority points out, the jurisdiction of a court of equity in Pennsylvania is limited. See Armstrong School District v. Armstrong Education Association, 5 Pa. Commonwealth Ct. 387, 291 A. 2d 125 (1972). As is equally clear, the statutory authority for an injunction in this case is contained in Section 1003 of the Public Employe Relations Act, Act of July 23, 1970, P. L. 563, 43 P.S. §1101.1003 (hereinafter PERA), which permits injunctions only to stop a strike which has already begun. As we stated in Armstrong, supra: “It is clear from a reading of Section 1008 . . . that the court is empowered thereby to grant equitable relief only to end a public employes’ strike.” (Emphasis added.) 5 Pa. Commonwealth Ct. at 392, 291 A. 2d at 128.
A strike, it seems to me, must mean a stoppage of work. “ ‘A strike is a concerted refusal by employees to do any work for their employer . . . until the object of the strike is obtained. . . ” Dydo Unemployment Compensation Case, 189 Pa. Superior Ct. 286, 291, 150 A. 2d 591, 594 (1959). Yet the defendants here were at work regularly from September 28, 1972 to the date of the complaint on January 4, 1973 and, presumably even somewhat beyond that date.1 Employees simply cannot be “on strike” and “at work” simultaneously, not even if, as here, they once previously during the *220school year were on strike and have voted to go on strike again at some later date. Only when they actually leave their Avork Avithout permission, can they be on strike, and, of course, it follows that until such time there is no strike to be enjoined.
The fact that a strike did occur on Monday, January 8, 1973, and that the lower court held a hearing on that day might have justified the granting of an injunction in response to a complaint filed on that day, if, of course, the supporting evidence as to its “clear and present danger or threat to the health, safety or welfare of the public” was sufficient. But it cannot justify the granting of an injunction in response to a complaint which was filed too early, even if jurisdiction was thereafter retained in error.
To the layman, the distinction herein made may Avell seem a distinction without a difference, the defendants having finally done what the plaintiffs charged them with doing before they did it, and, indeed, what they had voted to do. However, the law is clear that “[t]he question of equity’s jurisdiction must be determined on the facts and circumstances existing upon the date the action is instituted. . . .” Brenner v. Sukenik, 410 Pa. 324, 328, 189 A. 2d 246, 248 (1963) (Emphasis added.) To say that a neAV complaint could easily have been filed on Monday, January 8, 1973, is to state the obvious, and, if a new complaint had been filed, no doubt the hearing and the injunction would have proceeded just as they did. The facts here, however, are that a new complaint was not filed on Monday, January 8, 1973, and that the preliminary objections of defendants to the complaint filed on Thursday, January 4, 1973, had been sustained on January 5, 1973, by the court below on the very grounds that the strike had not yet occurred. The lower court’s jurisdiction was determined as of January 4, 1973, the day the complaint *221was filed, and on that day the strike concerned here had not yet begun. As a former Chief Justice of our Supreme Court well said: “No emergency, real or feared, and no alleged hardship to a complaining party, however great, can justify a court’s entertaining and passing upon a subject matter which is not within its jurisdictional competence.” Pennsylvania Railroad Company v. Pennsylvania Public Utility Commission, 396 Pa. 34, 38, 152 A. 2d 422, 424 (1959).
As to whether or not the strike which did finally begin on January 8, 1973, constituted a “clear and present danger or threat to the health, safety or welfare of the public,” the majority is, of course, correct when it holds that the scope of review by this Court is limited and that we must find manifest error or abuse of discretion on the part of the lower court if we would reverse its findings. But, even within these narrow limits, it seems clear that, giving the fullest possible weight to the testimony received, there simply was not enough credible evidence of a clear and present danger or threat to the health, safety or welfare of the public either on Monday, January 8, 1973, when the hearing was held, or on Thursday, January 11, 1973, when the injunction was issued.
These dates are highly significant, for they indicate that the strike complained of had been in existence for only one day at the time of the hearing and only four days at the time of the granting of the injunction, measuring the time very generously in each case. The problems cited by the plaintiffs at the hearing were of an anticipated nature, and necessarily so, for the hearing Avas held Avhen the schools had actually been closed for only a few hours. It was claimed, for example, that the large percentage of under-achievers in the Philadelphia school system would be progressively harmed as the strike continued, but the extent of that harm Avas *222never very clearly described and was certainly not proved. It was also claimed that the City and/or the plaintiffs would be burdened by excessive security expense, but there was no testimony as to the exact security actually required to keep order, as to the current need for such security, or as to what its cost in the future might be. These and many other problems might well have been expected to arise in a strike of any duration, of course, but, at the time concerned here, this strike had hardly begun. The testimony offered, therefore, could be nothing but an estimate of potential danger or threat, not evidence of a danger or threat that was clear and present.
Certainly the General Assembly of Pennsylvania knew when it enacted PERA, and when it gave teachers and other public employees the right to strike under certain circumstances, that any strike by any public employees would necessarily involve some expenses and some inconvenience, some danger and some threat to the public health, safety or welfare. Clearly it knew that any strike of school teachers in any school district in the state would necessarily involve some expense and some inconvenience, some danger and some threat for the students, their parents and the public in general. Surely it knew that Philadelphia and certain other school districts have large percentages of under-achieving students and that school security in cases of strike might well be a problem in any district and, perhaps, a special problem in large urban districts such as Philadelphia. The General Assembly, however, made no exception in the Act for any such allegedly exceptional districts. Nor may this Court. And, if exceptions seem desirable, as the plaintiffs have argued and as may well be true, providing them is the job of the General Assembly, not of the courts. The General Assembly has laid down the rule in PERA that, in all cases where *223a strike by public employees is to be enjoined, there must be found “a clear and present danger or threat to the health, safety or welfare of the public,” and that “danger or threat” must be clear and present, not merely anticipated. Armstrong School District v. Armstrong Education Association, 5 Pa. Commonwealth Ct. 378, 291 A. 2d 120 (1972). Moreover, it seems obvious to me that the words “clear and present” as used here, must be understood to modify both the word “danger” and the word “threat,” and one must be as “clear and present” as the other.
As the majority has stated, any decision in cases of this kind must be confined to the special facts of the particular case concerned. It must also be remembered that an injunction is an extraordinary remedy and should be used sparingly. In this case, however, both the majority here and the court below have found a strike to exist, which constituted a clear and present danger or threat to the health, safety or welfare of the public, when, as I read the record, neither condition was clearly proved as of the date in each case required. If the complaint had been filed later, and if, at a hearing on a timely filed complaint, there had been substantial evidence presented on which the court below might reasonably have found a clear and present danger or threat to the health, safety or welfare of the public existed at that time, I would agree that an injunction might readily have been issued then. On January 11, 1973, however, and under the circumstances of this case, it is my opinion that the issuance of an injunction was premature.
Judge Mencer joins in this dissent.
There is no evidence in the record that the defendants did not work on both Thursday and Friday, January 4 and 5, which were normal school days, or that any who were required to perform any duties on Saturday and Sunday, January 6 and 7, did not do so.