Dissenting Opinion by
Judge Mencer:I respectfully dissent. I believe that by this affirmance the majority has almost equated the inability of a school district to offer 180 days of instruction in each school year, because of a teachers’ strike, with a clear and present danger or threat to the health, safety or welfare of the public.
I believe this concept originated from what the majority in Root v. Northern Cambria School District, 10 Pa. Commonwealth Ct. 174, 309 A. 2d 175 (1973), proclaimed as dictum in our case of Armstrong School District v. Armstrong Education Association, 5 Pa. Commonwealth Ct. 378, 291 A. 2d 120 (1972). In Root, we stated: “Citing dictum in our case of Armstrong School District v. Armstrong Education Association, 5 Pa. Commonwealth Ct. 378, 291 A. 2d 120 (1972), to the *473effect that the danger that the district will lose state subsidy by the failure to teach 180 days, if clear and present, would be proper grounds for enjoining a strike, the plaintiff argues that equity should in this, and presumably in every case where it is still possible to provide 180 days, so order.” 10 Pa. Commonwealth Ct. at 180, 390 A. 2d at 178.
Although the majority here expressly explains that more is required than the mere passing of time upon which to foundation the enjoining of a teachers’ strike, nevertheless it is inescapable that a principal basis of the lower court’s decision to enjoin in the present case was stated as follows: “When a strike lasts so long that the 180 days requirement cannot be met, there is a clear detriment to the public welfare and the teachers must be enjoined from continuing it. Armstrong Sch. Dist. v. Armstrong Ed. Assn., et al., 5 Commonwealth Ct. 378, 386 (1973); Bellefonte S. Bd. v. Bellefonte Ed. Ass’n., 9 Pa. Commonwealth Ct. 210, 215 (1973).” (Emphasis supplied.)
How unalterable is the 180-day instruction requirement? Section 1504(a), as amended, of the Public School Code of 1949, Act of March 10, 1949, P. L. 30, 24 P.S. §15-1504(a), provides in part as follows: “Upon request of a board of school directors for an exception to the aforesaid daily schedule [school shall open at nine ante-meridian and close at four post-meridian, with a noon intermission of one hour and fifteen-minute intermissions in the forenoon and afternoon], the Superintendent of Public Instruction may, when in his opinion a meritorious educational program warrants, approve a school week containing a minimum of twenty seven and one-half hours of instruction as the equivalent of five (5) school days, or a school year containing a minimum of nine hundred ninety hours of instruction as the equivalent of one hundred eighty (180) school days.”
*474Here the record discloses undisputed testimony, not adhibited by the lower court, that, by adding one-half hour to each school day, the minimum number of days necessary to achieve 990 instructional hours is 165 days. If one hour were added to each school day, the 990 hours of instructional time would be achieved in 153 school days.
Granted, such reasonable lengthening of the school day may be inconvenient and unfair to the pupils and their families. However, as I noted in dissent in Root v. Northern Cambria School District, supra, the Legislature, not the courts, should alleviate and correct the inequities to pupils which result from the superimposing of the right of school teachers to strike on the specific and mandatory attendance requirements of the School Code.
The court below stated its other principal reason for granting injunctive relief in these words: “It is enough for the Chancellor to find from the evidence, as he does hereby, that the strike has caused incalculable harm to the students, the public at large and, indeed, to the teachers themselves.” (Emphasis supplied.) I do not believe this is the test established by the statute or enunciated by us in Armstrong School District v. Armstrong Education Association, supra.
In Armstrong we stated:
“In order to deal with the problem of public employee labor relations, the Legislature in 1970 enacted Act No. 195. This Act explicitly recognized the right of public employees to organize and to bargain collectively, and it also established specific procedures for collective bargaining which were intended to lessen the possibility of the development of an impasse. The Act provided, however, that if all the procedures have been complied with, and yet an impasse has developed, the right of the employees to strike must be recognized. The public employer is then given the right to seek eq*475uitable relief, including injunctions, in the court of common pleas of the jurisdiction where the strike occurs. Section 1003 of Act No. 195 provides, however, that an injunction may not issue unless ‘. . . the court finds that the strike creates a clear and present danger or threat to the health, safety or welfare of the public.’
“. . . [T]he determination of whether or not a strike presents a clear and present danger to the health, safety or 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 Act No. 195 which authorizes such strikes, the Legislature 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.
....
“The disruption of routine administrative procedures, the cancellation of extracurricular activities and sports and other such difficulties are most certainly inconvenient for the public, and especially for students and their parents. But these problems are inherent in the very nature of any strike by school teachers. If we were to say that such inconveniences, which necessarily accompany any strike by school teachers from its very inception, are proper grounds for enjoining such a strike, we would in fact be nullifying the right to strike granted to school teachers by the legislature in Act No. 195.
....
“. . . The fact that students and teachers might have to remain in school later in June than originally planned may be unfortunate, of course, but again it is *476merely an inconvenience inherent in the right of school teachers to strike, a right now guaranteed them by the law.” 5 Pa. Commonwealth Ct. at 382-86, 291 A. 2d at 123-25 (footnote omitted).
Lastly, the lower court concluded that “[sjchool subsidies will most probably be lost as a direct result of this situation.” This conclusion was preceded by the observation, not accepted by this writer, that “ [t] here is now no possibility of the District’s fulfilling the mandate of the School Code that there shall be at least 180 days of school by June 30, 1974, the end of the fiscal year.” We have indicated the alternative of lengthening the school day by a few minutes, and of course there was the unpleasant alternative of shortening or eliminating scheduled vacation periods and rescheduling-some of the lost instructional days in June of 1974. In addition, there was testimony, apparently rejected by the lower court, that in fact the school district would be financially advantaged by fewer days of school with the resulting decrease in expenses and costs, even reflecting the loss of some subsidies.
Here the majority holds that the chancellor correctly determined “that the threatened loss of the subsidies would constitute a danger which required that the strike be enjoined.” I cannot reach that conclusion by a reading of this record.
In conclusion, I would note that nothing written here is intended to be critical of the court below since its role is a most difficult one. The words of the applicable statute and the reported pronouncements of the appellate courts, on the one side, and the exigencies of the situation that confronts him, on the other side, make his moment of decision a most unenviable one. Being the parent of a child enrolled in a school district that as recently as September 1973 experienced the ordeal of a school strike, I am well cognizant of the many *477community pressures,1 added to the assertions of teacher and school board, that center on the chancellor.
My dissent here is based solely on my sincere belief that the chancellor, faced with legal uncertainty in this area, used the wrong legal test in reaching his decision to enjoin the teachers from continuing their legally authorized strike and that our affirmance will serve to further perplex other chancellors when they face similar lonely and demanding moments of decision.
In summary, I do not believe that, where a teachers’ strike prevents a school district from having 180 days of instruction in a school year with a consequence of possible lost state subsidy, there is thereby a clear and present danger or threat to the health, safety or welfare of the public.2 Nor does adding thereto the inherent inconveniences, disruptions, and problems caused students, their parents, and the public which inevitably flow from any strike by school teachers justify the enjoining of such a strike.
We rejected these criteria in Armstrong School District v. Armstrong Education Association, supra, on the reasoning that they would nullify the right to strike granted to school teachers by the Legislature. I would not retreat from that position on this record.
I hold to the view that the substantive evil, which is not the strike itself because legally permitted nor the natural disruptions flowing therefrom, must be extremely serious and the degree of imminent danger ex*478tremely high3 before the courts can utilize the extraordinary remedy of injunctive relief to terminate a strike specifically authorized by statute.
Judge Kramer joins in this dissent.Dissenting Opinion by
Judge Kramer :I join in the dissent of my brother, Judge Mencer ; but I feel constrained to add a few extra words of caution consistent with my prior concurring opinion in Bellefonte Area School Board v. The Bellefonte Area Education Association, 9 Pa. Commonwealth Ct. 210, 219, 304 A. 2d 922, 926 (1973).
As I view these disputes between school districts, teachers, labor unions and taxpayers, no one really represents the interests of the students, who are the beneficiaries or victims of the disputes. In addition to other rights they may have, students have a constitutional right to a thorough and efficient system of public education, as found in Article III, Section 14 of the Pennsylvania Constitution of 1968. Absent adequate safeguards (at the very least representation), I question the validity of statutory procedures which may detrimentally affect these guaranteed rights.
Not the least of which is the burning question of whether the football games will be played as scheduled or forfeited as a result of the strike’s continuing.
If the contrary is true, then it follows that (1) any strike which infringes upon the 180-day requirement is infected with almost presumptive invalidity and (2) the school board is assured that its position in negotiations at the bargaining table, whether fair or unfair, will prevail if only it can hold out long enough to encroach on the 180-day requirement.
Violence or threat of impending violence would he an example of the requisite danger or threat to health, safety or welfare of the public that would justify enjoining a teachers’ strike.