*1 violation, privi- operating his Section was still
lege had not been restored and Therefore, hold,
considered revoked. reasoning espoused
consistent with the in modi-
Drudy, that the trial court erred
fying two-year the additional revocation 1548(c)(2).
imposed under Section Accord-
ingly, we reverse.
ORDER
NOW, August the order Allegheny
Court Common Pleas
County above-captioned matter
hereby reversed. CROWE, minor, by par
Andrew his guardians, Wayne
ents and CROWE Crowe, Falascino,
and Diane Preston minor, by parents guardians, his
Dominic Falascino and Christine Fa Alyssa Hensel, minor, by
lascino and parents guardians,
her Dennis Mary Hensel,
Hensel and
v.
SCHOOL DISTRICT OF PITTS
BURGH, Thompson, and John W. Su
perintendent, District of Pitts School
burgh, Appellants. Pennsylvania.
Commonwealth Court of
Argued Oct. 2001. Aug. 2002.
Decided *2 Lucas, Jr., Pittsburgh,
R. Russell appellant. Murren, Hill, Camp appel-
Philip J. lees. PELLEGRINI, J.,
Before LEADBETTER, J., JIULIANTE, Judge. Senior Judge BY LEADBETTER. OPINION (Dis- The School District trict) by the an order issued appeals from Allegheny Pleas of Court of Common granted order County. The contin- injunction requiring the District to for children ue service day kindergarten programs. half private follow, we vacate For the reasons of Common Pleas. order of the Court arose when the District dispute This services, elimi- redesigned its Falascino, Alyssa Crowe, Preston half kinder- all but two of its nating equity in the Court filed a suit day long pro- in favor of Hensel programs garten County. change Allegheny program a result of its Pleas of grams.1 As Common schedule, the District discontin- and new two plaintiffs’ complaint, Pursuant of its kin- mid-day bus service for all ued whether held to determine hearings were *3 in- The District dergarten students. granted be plaintiffs should non-public school administrators formed Fa- hearing, first Mrs. injunction.2 At the by letter that: since the District testified that lascino longer will no Pittsburgh Public Schools approx- she drives her son busing, stopped half-day kin- for provide transportation from a twenty minutes to and imately in the 2000-2001 dergarten programs session, she loses morning year. school time, changed her and she has sleeping 372, Act According Pennsylvania to examination, at home. On cross schedule to equitable transportation must her son has not Falascino conceded Mrs. who at- City Pittsburgh residents all transporta- any school because missed we will non-public tend schools. Since testified, Mrs. Crowe also problems. tion day to half longer transport no students has busing stopped she stating that since Schools, Pittsburgh in Public programs logistical problems carpool- experienced transporta- provide half-day we will not to and from young various children ing non-public schools. tion also conceded school. Mrs. Crowe course, your may continue to Of school because not missed her son has half-day programs, and we will offer transportation. lack of a half-day either transport students time, your regular start or school for additionally presented parties your regular from school at dismissal Paserba, Superin- Dr. Robert testimony of make their time. Parents will have to Diocese for the tendent of Catholic Schools mid-day arrangements transpor- own for III, Pittsburgh and Theodore Vasser they tation if choose to enroll their child for the District. Transportation Director of half-day program. in a cur- that the Diocese Dr. Paserba testified kindergarten programs, rently III Non- offers three Letter Theodore R. Yasser Administrators, morning program, in the 49 children dated March with School day. afternoon, in the full 31, and 68 of Pitts- 20 2000. The Catholic Diocese half children posi- the District’s Of the burgh disagreed with that 52 desire Dr. Paserba stated tion, persuade grams, the Dis- attempted Mr. Vasser testified mid-day busing. obligated trict that it was under Section busing mid-day 1361(1) 1949 the District eliminated the Public School Code of district, including 10, 1949, 30, the school (Code), throughout P.L. as Act of March half- amended, remaining public 13-1361(1), busing for the two 24 P.S. foregoing on the day programs. Based further ex- mid-day busing. After several an emer- granted court testimony, the trial Andrew changes negotiations and failed plaintiff-parents were also remaining 2. Several that the two 1. The District asserts However, depositions are deposed. their place because of day programs remain in half Further, only hearing tran- in the record. will problems too logistical was the script part of the record made day programs. No eventually full become 4, October 2000. The hearing held October provided for these two sites. busing service 18, solely in hearing transcript appears 2000 reproduced record. the District’s 694
gency preliminary injunction injunction A mandatory and sched- which com- performance of some hearing. positive uled a second mands requires stronger act much case. hearing, again At the second Vasser Mr. Scranton, Roberts v. Sch. Dist. 462 Pa. regarding testified the District’s (1975) A.2d (quoting 341 Ze- 475 that in policy, stating 1999/2000 Dist., 432, bra v. Pa. Sch. $9,328.00 year spent the District on mid- (1972)).3 296 A.2d Nonethe- schools, day busing compared less, $172,800.00 schools. Although super are not courts presented testimony Plaintiffs of Fa- boards and should not interfere with the Stubna, ther Secretary Kris of Education discretionary exercise of a school board’s Pittsburgh. for the Diocese of Father *4 power, mandatory preliminary injunc- a testified that at a minimum Stubna there interfering tion that is discretion requiring are 50 students a ac- appropriate where school board’s mid-day busing. qualified He that number misconception tion is based on a by indicating that if was law. This Court must therefore exam- available, some students would choose to legal ine the factual and for the bases attend half than full programs rather injunction preliminary issuance of the day programs. foregoing Based on the ap- and determine whether there were in- granted preliminary the trial court parently grounds reasonable for the trial junction, requiring the District to all bus court’s action. non-public school students half- Dist., Save Our Sch. v. Colonial Sch. 156 day kindergarten programs. 671, 1210, Pa.Cmwlth. 628 A.2d 1211-12 (1993) (citation omitted). Finally, any court, appeal On to this the District injunction narrowly such must be tailored plaintiffs asserts that failed to meet the wrong plead proven. the address grant preliminary standard for the of a (Pa.Su- Shea, 346, v. Anchel 762 A.2d 355 injunction, that the trial court erred Lowe, 747 per.2000); Karpieniak v. A.2d 1361(1), interpreting Section and that the 928, (Pa.Super.2000). 931 trial court in ordering perfor- erred the discretionary mance of a act. argues plaintiffs The District the
failed to establish that would suffer begin by noting We the well-es harm if an in- irreparable immediate and applicable junction tablished standards to the issu If plaintiffs were not issued. the injunction, personal harm that preliminary ance of a and this were show case, actually irreparable in is this court’s review of such a decision. agree. would “In in- preliminary order to sustain a junction, plaintiffs right the to relief However, repeatedly as we have clear, must be the need for relief must held, express provision “a violation of an immediate, injury be and the must be harm for per irreparable statute is se injunction grant- injunction.” if the is not irreparable purposes Pub. ed.” Pleasant Hills Constr. Co. Inc. v. wrongful Additionally, quo prior alleged to the 3. we often consider whether as it existed greater refusing Duca, injury will occur from the Cappiello Pa.Super. conduct. v. 449 injunction granting it and whether than the 100, 1373, (1996). 1376 672 A.2d injunction parties returns the to the status
695
Auditorium,
any
act
A.2d
the
of this
or of
Pittsburgh,
any
Auth.
782
68,
(Pa.Cmwlth.2001),
79
Assembly.
rev’d on other
act of
other
(2001)
38,
567
grounds,
Pa.
AND this 26th First, the order of the Court of Common the diocesan schools have County in Allegheny Pleas the above “regular established school hours” for captioned and the matter is VACATED students, these but have offered a menu proceed- matter REMANDED for further options kindergartner’s such that each ings foregoing opin- accordance with the parents. school hours is set his To be ion. entitled to accordance with its District,
schedule rather than that of the relinquished. Jurisdiction a non-public believe school must set Dissenting Opinion by Judge Second, regular providing school hours. PELLEGRINI. multiple trips round to and from each *6 school to accommodate individual majori- choices I respectfully dissent from the ty’s of schedules is not identical to the trans rationale that 1361 of the Pub- Section (School Code)1 lic portation kin School Code of 1949 public offered the school not require does the School District of the dergartners upgraded, is an deluxe —-it (School District) City to con- version of what have. To accord busing non-public tinue school to students to all meaning of Section 13- morning kindergarten both and afternoon 1361, provides we hold that if the District morning and after- classes when its own trip one round each to its kinder noon session had been ex- gartners, provide trip it must one round panded full-day programs. to If private kindergartners. to school a hours, 1361(1) non-public regular school has Section the School Code2 morning, day, provides or all that once a school district whether afternoon transportation any requires provide § 4. 22 the free Pa.Code 11.3 hours mini- for 2'k per day kindergar- pupil kindergarten, mum instruction time for resident to and from the school, elementary secondary ten students. or school in enrolled, lawfully provided which he is that 30, amended, 1. Act of March P.L. as is not for and is such school 13-1361(1). 24 P.S. or located within the district boundaries a outside the district boundaries at distance 1361(1) provides pertinent part: 2. Section in exceeding by pub- ten miles the nearest highway provision by lic ... When is made The board of school directors in school district, transpor- may, out the a board school directors the district funds District all kinder- by at the vided the School to implements busing kindergarten, level, it elementary secondary students, or school 1361 specifically garten Section transportation also must identical to the School District to adhere required non-public to schools with- services located calendar and not its the in the school or within ten-mile district establishing busing in schedules. own the required radius of school district. As trial purportedly affirming the While 1361(1) Code, the by Section of the School injunction grant of a court’s provided busing School District services agreeing the School District’s and attending for students both and “iden- position, majority the states that the non-public half-day kindergarten sessions. 1361(1) provision” only in re- tical Section the Prior to commencement of the 2000- to non- quires a school district year, however, 2001 school the Dis- School kindergarten students with public school to its expand half-day trict chose kinder- full-day transportation same it sessions, garten programs full-day and students, it has its own and because vides by memorandum dated March mid-day transportation services eliminated private parochial informed and schools students, those services provided for its all of its mid-day busing services parochial also be private and schools must suspended would be as a result of majority eliminated. The determined memorandum, In expansion. 1361(1) although require did not Section District it only School noted that would parochial schools follow the private kin- transport attending half-day students in busing School District’s exact schedule dergarten programs either to at the eligible to be ser- order regular start time or from at the vices, “regular it was set regular dismissal time. consisting round-trip school hours” of one Parents of half- children of busing options rather than multitude day kindergarten in programs private and not offered the School District at their (Parents) parochial schools filed suit own schools. equity the Court of Common Pleas majority places great reliance on (trial court) Allegheny County seeking a private parochial fact that schools preliminary injunction enjoin the School half-day kindergartens that have have not discontinuing District from mid-day its when, “regular school established hours” Finding services. the School *7 fact, recognized half-day programs 1361(1) by District was of required Section “regular school horn’s”were not even as mid-day continue the School Code to its subject dispute of until the School District private parochial service and schools, half-day programs. to eliminate its the trial decided subsequently grant- court effect, injunction. majority saying is Parents’ court In what the is ed trial their change schools public determined that once free that when was from public nonpublic operated to and pupils school not tation of for di- session, such schools ... the board of school regular according to the school is in rectors provision shall make also identical by officially adopted calendar the directors of transportation pupils who provisions free of the same accordance nonpublic kindergarten, ele- regularly attend of school shall law. The board directors mentary high and schools transportation so provide such whenever profit to and such ... Such from schools act any this attending nonpublic transportation pupils Assembly. or of other act of regular provided during schools shall be added). 13-1361(1) (Emphasis 24 P.S. periods hours dates and on such hours,” “regular private so must all parochial
and if they schools want their
students to be able avail themselves of
transportation contrary, services. To the 1361(1) requires
Section that non-public
school students transportation op- receive
portunities are identical
schools. What “identical” means is that it no moment as to what time of the provided
these services are or that provided
are at day, various times of the long
as private as both
parochial provided school students are service, i.e.,
with the same
to and from kindergarten. I
Accordingly, dissent.
NILO, INC.
v. LIQUOR
PENNSYLVANIA
CONTROL BOARD.
Allegheny Steak & Pasta Grill
v.
Pennsylvania Liquor Control Board.
Appeal HTA, Inc. d/b/a Factory.
The Pizza Pennsylvania.
Commonwealth Court of
Argued May 2002. Aug.
Decided 2002. Hadley, R. City, appel-
Michael Oil ^an^- Mercer, Cline, appellee,
Jack W. Al- Grill, legheny Steak & Pasta Inc.