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December 29, 1956


Appeal, No. 127, March T., 1956, from order of Court of Common Pleas of Allegheny County, April T., 1955, No. 605, in case of School District of Robinson Township v. Vernon Houghton and Ola Gordon, individually and as trustees ad litem for the Taxpayers' League of Robinson Township. Order of supersedeas vacated and appeal quashed.


Louis D. Cooper, with him Cooper, Hunter & Lewis, for appellant.

Franklin Blackstone, Jr., with him Paul, Lawrence & Rock, for appellees.

Before Stern, CJ., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 387 Pa. Page 237]


This case arose in the court below on the petition of the School District of Robinson Township, Allegheny County, for a declaratory judgment. Impleaded as parties defendant were two named individuals in their personal capacity and as trustees ad litem for the Taxpayers' League of Robinson Township. After answer filed, an agreed-upon statement of facts was entered of record in the form of a case stated wherein a right of appeal was reserved to the petitioner and the respondents.

[ 387 Pa. Page 238]

The question of law posed for the court's decision was whether the board of directors of the school district possessed discretionary power to transport in buses of the school district, to the site of the public school, non-public school pupils who, while of compulsory school age, attend schools other than the public school of the district.

The court en banc, consisting of three judges, unanimously held that the plaintiff school district was without power, discretionary or otherwise, to transport non-public school pupils in public school buses since the powers of a school board in cognate relation are derived from statutory authority and the School Code does not authorize a school district's transportation to and from its public schools of any pupils other than public school pupils. See Connell v. Kennett Township Board of School Directors, 356 Pa. 585, 589, 52 A.2d 180, where we affirmed, per curiam, on the lower court's well-considered construction of the pertinent provisions of the School Code relative to the free transportation of pupils to and from public schools.

The suggested distinction between the Connell case and the instant case fails to point a legal difference. It is of no material significance to the principle involved that, in the Connell case, the plaintiff-parent claimed that there was a mandatory duty on the school district to provide his school-age child with free transportation to and from her non-public school while the instant proceeding merely sought court approval of the school board's willingness to transport non-public school pupils in public school buses where that could be accomplished without apparent expense to the school district. The matter of the expense to the taxpayers of the school district for the free transportation of non-public school pupils, which was averred in the

[ 387 Pa. Page 239]

    majority of the court en banc advisedly disregarded it. Orderly judicial procedure requires that nothing more be passed upon by a court than the justiciable question posed for its decision. Beyond that, there is the further familiar principle that a court will not pass on a constitutional question unless it is absolutely necessary to do so in order to decide the case before it: Commonwealth, to use v. Picard, 296 Pa. 120, 124, 145 A. 794; see, also, Sablosky v. Messner, 372 Pa. 47, 60, 92 A.2d 411; Altieri v. Allentown Retirement Board, 368 Pa. 176, 180, 81 A.2d 884. The court below, therefore, correctly refrained from expressing any opinion on the constitutional question which the appellant sought to raise; and we necessarily do likewise. Whether a school district's transportation of non-public school pupils to and from the site of its public school in public school buses would constitute a violation of Article X, Section 2 of the State Constitution cannot properly come before us until the legislature authorizes or permits such a practice and the constitutionality of its action is directly called in question in a due judicial proceeding.

In any event the appeal must be quashed. Paul A. Stinner, the nominal appellant, lacked standing to appeal.

Six weeks after the case had been finally disposed of by the court below, Stinner and one John Macek filed a joint petition seeking leave to intervene in the proceeding, praying, inter alia, that they be accorded the rights reserved to the original parties to the action with respect to taking an appeal from the final order entered in the proceeding. The court below, in asserted reliance on Rule 2327 of the Rules of Civil Procedure, as authority for its action, entered an order as prayed for. The same day, Stinner, acting alone, took

[ 387 Pa. Page 241]

    the instant appeal from the judgment theretofore entered in the proceeding, and the court below, on Stinner's further petition, entered an order of supersedeas to the judgment.

The order allowing the petitioners to intervene in the instant case was plainly improvident. Rule 2327 of our Rules of Civil Procedure prescribes that intervention may be had "during the pendency of an action." And, there was no action pending at the time the intervention was allowed. Pendency, in practice, has been said to be "the state of an undetermined proceeding": 70 C.J.S. 420. Black's Law Dictionary, 3rd Ed., p. 1345, defines the term as "the state of an action, etc., after it has been begun, and before the final disposition of it" (Emphasis supplied). In Rea v. Klein, 14 Wash. 82, 83, the court pertinently stated that "In all of the cases which we have examined, in which the right to intervene has been allowed, there was a proceeding pending, with further steps to be taken before this was concluded." The action in the Rea case having terminated in the entry of a judgment whereon execution had been issued, it was held that "There was no proceeding pending, in which the parties could intervene." The correct interpretation of Rule 2327 is, as stated in Standard Pennsylvania Practice, Vol. 2, Parties, § 97, p. 429, that "After adjudication, a petition to intervene is too late", citing Collins v. Martin, 30 Dauph. 33, 34. In that case the petitioner did not offer to intervene until after the proceeding had been adjudicated by the court. The application was consequently held to be untimely. Cf. also De Lucca's Liquor License Case, 124 Pa. Superior Ct. 500, 509, 190 A. 195.

We are aware that each of two commentaries on our Rules of Civil Procedure expresses the opinion that,

[ 387 Pa. Page 242]

    for the purpose of intervening, an action is pending from the moment it is first brought until the record of the action is removed on appeal. Neither cites any authority for the dictum whose inherent error is patent, upon a moment's reflection, and does not require further discussion. In this connection, it is not inappropriate to note that the right of appeal from the action of a lower court is not constitutionally ordained in Pennsylvania. With us, such right is conferred solely by statute and does not otherwise exist.

The petitioners did not, moreover, come within the provisions of Rule 2327, qualification under one of its four categories being a condition precedent to the granting of leave to intervene. They did not have such an interest that they could have joined as original parties to the action and could not have been joined therein within the contemplation of subdivision (3) of Rule 2327 for the very patent reason that they did not have a legally enforceable interest in the subject-matter of the controversy within the intent of subdivision (4) of Rule 2327: see Connell v. Kennett Township Board of School Directors, supra. And, of course, it is too plain for discussion that neither subdivision (1) or(2) of Rule 2327 furnished the petitioners with any basis for intervening.

The undeniable fact is that the litigation initiated by the declaratory judgment petition was conclusively determined by the court below, and a final judgment entered therein before the petition for intervention was ever filed. Intervention was, therefore, no longer allowable. Nor need Stinner be troubled by the thought that, in some future litigation, he may be met with a plea of res judicata on account of the final order entered herein by the court below. Res judicata as is generally known, binds only parties to the conclusive

[ 387 Pa. Page 243]

    proceeding. So long as one is not a party thereto, he need have no fear that he will be concluded thereby. For Stinner now to be effectively excluded from the proceeding - a status which our order will confirm - assures his freedom from any binding effect of the order entered by the court below. See also Section 11 of the Declaratgory Judgment Act of June 18, 1923, P.L. 840, 12 PS § 841.

Mr. Justice BELL would affirm the order of the lower court on that part of the opinion of Mr. Justice JONES which ably deals with the merits of the case.


The order of supersedeas is vacated and the appeal quashed.


The School District of Robinson Township owns seven auto buses which it uses in transporting children from their homes to the public schoolhouses in the Township. In proceeding to their various destinations the buses pass certain points where parochial school children are picked up and taken to other points close to the parochial schools they attend, without deviation from the pre-appointed route of the bus involved. Each school day the buses transport 821 public school children and 43 non-public school children.

Some persons and an organization in the Township having complained that the School District had no authority to heed the requests of waiting children along the path of travel of the school buses, the School District petitioned the Court of Common Pleas of Allegheny County for a declaratory judgment to the effect that "the incidental ...

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