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DALY ET AL. v. DARBY TOWNSHIP SCHOOL DISTRICT (04/23/69)

decided: April 23, 1969.

DALY ET AL., APPELLANTS,
v.
DARBY TOWNSHIP SCHOOL DISTRICT



Appeal from decree of Court of Common Pleas of Delaware County, No. 12042 of 1968, in case of Margaret M. Daly et al. v. School District of Darby Township et al.

COUNSEL

Donald J. Orlowsky, with him Stephen S. Smith, and ReDavid, Orlowsky & Natale, and Baile, Thompson & Shea, for appellant.

Joseph A. McNeal and Franklin E. White, with them Norman J. Chachkin, Jack Greenberg and James M. Nabrit, III, for appellees.

Francis K. Risko, for school district, appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Cohen. Mr. Justice Jones joins in this opinion.

Author: Roberts

[ 434 Pa. Page 287]

On September 12, 1968 the School Board of the School District of Darby Township adopted a resolution requiring the integration of its two elementary schools on a ratio of two black pupils to one white pupil, with integration to be accomplished according to a specified pairing system.*fn* On September 19, 1968 appellant, a white taxpayer and parent of a child enrolled

[ 434 Pa. Page 288]

    in one of the affected schools, filed a petition for a preliminary injunction seeking to prevent the implementation of the board's resolution. Appellant claimed that the proposed ratio system constituted a racial classification which violated the Pennsylvania Public School Code and the constitutional rights of appellant's child. A hearing was set for September 24, 1968. On that date, a black taxpayer parent petitioned to intervene on behalf of her children and all others similarly situated, which petition was subsequently granted.

At the initial hearing, the chancellor expressed doubt as to whether the ratio plan was proper, and continued the matter for one week to allow the parties to reach an amicable settlement. On October 4, 1968, at an off-the-record meeting with the chancellor, counsel for the board and the intervenors offered a proposed settlement to which counsel for appellant did not object. As a result, the court below issued an order denying as moot appellant's petition for a preliminary injunction and ordering compliance with the new plan which had been formulated. Now appellant has taken this appeal, claiming that the chancellor should not have issued his order directing compliance after finding the issues raised in appellant's petition to be moot and that, regardless, the Human Relations Commission had exclusive jurisdiction of this controversy.

Appellant's first contention is barred by appellant's participation in the October 4 settlement. Appellant's appeal apparently came as a great surprise to the chancellor, who in his opinion stated that "it was finally agreed (or I thought it was agreed) that the most workable plan would be as follows [the plan and its justification follow]. . . . Our plan did not work. The plaintiff changed lawyers and the new lawyer insists on having the case heard by the Supreme Court." Appellant of course cannot agree to a judicial settlement

[ 434 Pa. Page 289]

    and then claim that because she has new counsel, she may take an appeal from that very agreement. Having made no objection to the chancellor's adjudication implementing the settlement, appellant is now bound by it, since having never objected below to the plan which was finally adopted, appellant cannot raise her objections for the first time on this appeal. See, e.g., ...


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