13 Pa. Commw. 464 | Pa. Commw. Ct. | 1974
Opinion by
This is an appeal from an order of the Court of Common Pleas of Lackawanna County granting a preliminary injunction. The injunction required the appellant, Board of Directors of the School District of
Prior to the 1973-74 school year, public schools in Scranton were classified as either elementary or secondary schools. Pupils in grades kindergarten through eighth were assigned to the elementary schools while those pupils in grades nine through twelve were assigned to secondary schools. As a part of the restructure of its educational system which included a building campaign expanding public school facilities, the above classification was changed so that elementary schools accommodated pupils in grades kindergarten through sixth, while the secondary schools encompassed pupils in grades seven through twelve. In order to adequately provide for this secondary school expansion, junior high schools were constructed to educate students in grades seventh, eighth and ninth.
Pursuant to this restructure of the system, the Board adopted, by resolution, on July 9, 1973, a busing policy which provided free transportation for elementary school pupils (kindergarten-sixth). This policy, however, restricted the busing of secondary school students to those occasions in which no adequate public transportation existed and the pupil’s residence was in excess of two miles from the school or for a lesser distance if a certified hazardous condition existed.
The appellees in the instant case are parents of students in the seventh and eighth grades who had previously been classified as elementary school pupils, but who, under the reorganization, have been transferred to a junior high school which is now classified as a secondary school. As the result of the Board’s July 9th resolution, these pupils no longer receive school bus service, but must travel to school over a route that has been certified by PennDOT as hazard-
A brief outline of the reasons behind the Board’s decision not to bus seventh and eighth grade pupils, as heretofore, will serve to illuminate the background of this case. In 1972, the Legislature amended the Public School Code
The scope of review of this Court in reviewing the granting of a preliminary injunction is restricted. In the absence of a manifest error of law, clear abuse of discretion or a lack of reasonable grounds, the decision
The Supreme Court and this Court have repeatedly held that the exercise of a school board’s discretion will not be interfered with unless the action is arbitrary, based on a misconception of the law or ignorance through a lack of inquiry into the facts. Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A. 2d 748 (1972); York v. Montrose Area School District, 9 Pa. Commonwealth Ct. 379, 307 A. 2d 478 (1973). The plaintiff must sustain a heavy burden of proof before a discretionary power of the board will be overturned. York, supra. Furthermore, in a case in which a party requests a preliminary injunction, he must also establish a clear right to the relief, and that the failure to receive same must result in immediate and irreparable injury. McMullan v. Wohlgemuth, 444 Pa. 563, 281 A. 2d 836 (1971).
A review of the lower court’s opinion indicates that there has been no finding that the Board abused its discretion, and consequently the appellees have failed to establish a clear right to the injunctive relief they sought. The court states in its opinion at page 186a of the record: “We believe the evidence at this stage may warrant the conclusion that the Board’s policy against busing was the product of an arbitrary will. . . .” (Emphasis supplied.) A conclusion by the lower court that the Board may have abused its discretion is an insufficient basis on which to grant a preliminary injunction. There can be no clear right on the part of the plaintiff if there is no affirmative finding that the Board abused its discretion.
The lower court has styled its injunction as preliminary; in fact, it is also mandatory. In McMullan,
The Supreme Court has defined status quo as the last actual, peaceable, noncontested status which preceded the pending controversy, Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 52 A. 2d 317 (1947). In the instant case, the status quo is determined either as of the July 9th resolution or the opening day of the 1973-74 school term, September 5, 1973. In either case, the status quo was nonbusing, and thus the lower court has granted a mandatory injunction by requiring that busing be initiated. Having failed to meet the requirements of a preliminary injunction, it cannot meet the more stringent standards necessary to sustain a mandatory injunction.
The appellees also contend that the language of the Board’s July 9th resolution requires that they provide busing because a certified hazardous condition exists. This assertion, however, ignores the Board’s caveat that such service would only be provided in the absence of adequate public transportation. The lower court in its opinion reviewed the evidence as to the adequacy of public transportation but did not make a finding that it was inadequate. If the lower court predicated its injunction on the theory that the Board abused its discretion because a hazardous condition existed and the Board failed to provide bus service, then there would
Accordingly, the decree of the court below granting an injunction is vacated and the case is remanded to the Court of Common Pleas of Lackawanna County for further proceedings consistent herewith.
Act of December 29, 1972, P. D. , No. 372, 24 P.S. §13-1361, amending tbe Act of March 10, 1949, P. L. 30, 24 P.S. §13-1361, (Act No. 372).