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ZEBRA v. SCHOOL DISTRICT CITY PITTSBURGH (03/01/72)

decided: March 1, 1972.

ZEBRA, ET AL.
v.
SCHOOL DISTRICT OF THE CITY OF PITTSBURGH



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Robert Zebra, Myles M. Bishop, Edward W. Clegg, Dush Kosanovich, Bernard J. Majeski, Kenneth R. McDonald, Robert M. Wilkinson, William F. Bell, John Lazor, Kenneth E. Asbury, Leo J. Bakalarski, William J. Kasten, Wendell Papp, James Roy Cummings, Charles W. Davis, Sr., Mathew Dawida, Ronald H. Freudenberg, George T. Leary, Jr., Michael J. Manko, James J. Montgomery, Theresa B. Potenziani, August J. Rostek, Ralph E. McGee, William F. Besselman, Jr., Edward J. Schimmel, James W. Everitt, Henry G. Huebner, Andrew Veri, Jr., Joseph P. Chesney, Michael Czarny, John J. Soroka, Eugene A. Woods, Harry J. Moslander, Donald J. Wislich, Joseph G. Dusch, William A. Knetzer, Bogdan Mural, Raymond Sager, John A. Strazdins, Frank S. Haines, George S. Eberman, Paul D. Graham, William G. Harrer, George Maravich, William L. Rust, Joseph F. Studnichi and Donald A. Miller v. School District of the City of Pittsburgh, No. 433, January Term, 1972.

COUNSEL

Justin M. Johnson, Solicitor, with him Bernard Markovitz, Assistant Solicitor, and Thomas J. Cox, Jr., Assistant Solicitor, for appellant.

Paul G. Kachulis, with him John V. Adams, Jr., and Kachulis, Copetas, Adams & Hillen, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Rogers. Judges Wilkinson and Blatt join in this opinion.

Author: Mencer

[ 4 Pa. Commw. Page 645]

On June 15, 1971, the Board of Public Education of the School District of Pittsburgh adopted a School Reorganization Plan affecting numerous public schools within the school district. Under the plan, which was to be effective at the beginning of the 1971-1972 school year, all seventh grade students promoted from Concord Elementary School in June of 1971 were to attend Knoxville Junior High School (Knoxville) in September, 1971, instead of Overbrook Elementary School. Under the reorganization plan, the total enrollment at Knoxville was 835, of which number approximately one-third consisted of white students.

School opened on September 7, 1971, and the seventh grade students who had previously attended the Concord Elementary School were enrolled and in attendance at Knoxville. Soon thereafter incidents occurred of extortion, threats, physical assaults, intimidation and harassment, involving the students coming from Concord Elementary School. On September 23, 1971, a power failure occurred in the area of the city in which the Knoxville school is located and there were rumors that there might be a riot. The next day, a Friday, there was a false fire alarm. The parents of the Knoxville seventh grade students residing within the Concord subdistrict withdrew their children from the Knoxville school on September 24, 1971. The following Monday,

[ 4 Pa. Commw. Page 646]

September 27, 1971, the parents gathered at the Overbrook Elementary School and demanded that their children be enrolled in the seventh grade of that school.

On September 28, 1971, and on subsequent days of that week, there were discussions held between representatives of the parents and school officials in an endeavor to understand what had happened at Knoxville during the first three weeks of the school year and to decide where the students from the Concord subdistrict were to be assigned in the future. These discussions culminated with a public meeting held on October 2, 1971, when nine school directors, along with the Acting Superintendent and other staff members, listened to complaints and heard of specific incidents involving the students who had been withdrawn from Knoxville by their parents. More than 350 parents and members of the Concord community were in attendance at this public meeting.

On October 8, 1971, the school directors met, discussed the situation at Knoxville and authorized the Acting Superintendent to take whatever steps were necessary to insure the safety and welfare of all the children attending Knoxville. On October 13, 1971, the principal of Knoxville sent a letter to each of the families whose children had been withdrawn from the school. The letter requested the parents' cooperation in returning their children to Knoxville on the first school day following receipt of the letter. The same day a complaint was filed, with 47 parents or guardians of children residing within the Concord Elementary School subdistrict as plaintiffs and the School District of the City of Pittsburgh as defendant.

A hearing was held on October 19, 1971 and October 20, 1971 upon the prayer in the complaint for a preliminary injunction. On October 26, 1971, the Court of Common Pleas of Allegheny County filed an order enjoining

[ 4 Pa. Commw. Page 647]

    the defendant from requiring the children of the 47 plaintiffs to attend Knoxville and directing that defendant provide other school facilities for these children. On October 28, 1971, preliminary objections to the complaint were filed by defendant, to which plaintiffs filed an answer and objections on November 29, 1971. This appeal from the lower court's order of October 26, 1971 was timely brought and is in accordance with the Act of February 14, 1866, P.L. 28, § 1, 12 P.S. § 1101. This Court now has jurisdiction under the Act of July 31, 1970, P.L. 673, No. 223, Art. IV, § 402(4), 17 P.S. § 211.402(4). See Pittsburgh Fire Fighters v. Pittsburgh, 444 Pa. 616, 281 A.2d 637 (1971).

Our consideration of this appeal must be with the realization that a preliminary injunction is a temporary matter. A final hearing is yet to be held where the lower court will have time to carefully consider the case and reach a final determination. The scope of appellate review in this type of proceeding is well settled. It is expressed succinctly by the Supreme Court in Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 48, 159 A.2d 681, 683 (1960), in these words: "'Our uniform rule is that, on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable.'"

This standard of review was reaffirmed in the recent case of McMullan v. Wohlegemuth, 444 Pa. 563, 570, 281 A.2d 836, 840 (1971), where it was stated that "[i]t has long been the law of this Commonwealth that appellate courts will not inquire into the merits of disputes on appeal from the grant or refusal of a preliminary

[ 4 Pa. Commw. Page 648]

    injunction, and that we will look no further than a determination of whether reasonable grounds appear for the granting of the preliminary injunction."

An injunction will only issue when the rights of the plaintiff are clear, there is an urgent necessity to avoid injury which cannot be compensated for by damages, and greater injury will be done by refusing it than by granting it. Berman v. Philadelphia, 425 Pa. 13, 228 A.2d 189 (1967).

We further recognize that the preliminary injunction granted here is in part mandatory in that it requires the defendant to provide other school facilities for the children whose parents and guardians are the plaintiffs here. The rule is that mandatory preliminary injunctions should be granted even more sparingly than those that are merely prohibitory. A mandatory preliminary injunction should only be granted where exceptional circumstances compel the granting to prevent irreparable injury and where the rights of the parties are entirely clear.

Under the instant facts we conclude that the plaintiffs' right appeared clear at the preliminary hearing and that the injury to the children was imminent and, if allowed to be committed further, would be irreparable. An examination of the record discloses that the conditions existing at Knoxville were a serious threat to the health and safety of all the plaintiffs' children. We believe that the lower court fairly described the existing conditions in these words: "There were repeated attempts by the other students to extort money from them. They were repeatedly threatened that if any reports were made to the school authorities, physical retaliation would be made. There was a general lack of discipline in the classrooms and a great deal of confusion and noise existed during classes, making it impossible for conscientious students to concentrate or to

[ 4 Pa. Commw. Page 649]

    make full use of the learning processes. Food was thrown about in the cafeteria, striking other students. Many of the former Concord students became ill, developed nervous conditions, required medical treatment, were afraid while attending Knoxville and remain afraid to return. None of these emotional problems antedated the enrollment of these students at Knoxville."

The record also discloses, without refutation by the school officials, that the following specific incidents occurred at Knoxville between the period of September 7, 1971 and September 24, 1971, which were indicative of the situation that confronted the plaintiffs' children. During a class session, a twelve-year-old boy was stabbed in the back with scissors. A twelve-year-old girl was physically attacked in the girls' lavatory by another student who demanded her choker-type necklace. Her purse was grabbed on another occasion and during classes another student repeatedly knocked her books to the floor. A twelve-year-old boy was knocked into a jigsaw during an instruction period, resulting in a head wound. On another occasion he was slapped by another student, causing him to fall down the stairs, and a book was taken from him and a page ripped out. In a science class, a girl student threw a padlock at him, narrowly missing him and other students. While another twelve-year-old girl was in her English class, a boy pulled her hair, put gum in her hair, spat upon and kicked her. In the cafeteria line, she was threatened with a beating and, in the girls' lavatory, eight girls who were engaged in smoking opened her stall door while she was using the toilet facilities and, against her wishes, attempted to force her to use a sanitary napkin and only ceased their demands on her after she submitted to their insistence to observe for themselves that she was not menstruating.

An eleven-year-old girl was hit and knocked down, requiring that she be taken to the school nurse. The

[ 4 Pa. Commw. Page 650]

    next day she was threatened for reporting the incident and she was thereafter a victim of extortion attempts and had a necklace and books stolen from her. Another student was accosted between classes by two girls who pushed her against a locker, causing her to fall, with other students encouraging one assailant to kill her. One girl was shoved, kicked and her hair was pulled, following numerous attempts to extort money from her. When she reported these incidents to school personnel, another student threatened to kill her if any of her girlfriends were suspended. A fourteen-year-old boy was repeatedly threatened, had his money taken, was tripped and ganged up on by other students.

An eleven-year-old boy, while waiting in the hall for the school bus, had a cup of human urine thrown upon him by another student. He observed children being beaten in the halls, thrown down steps and having money taken from them, all of which took place in front of teachers who did nothing to stop or prevent such happenings. On another occasion his tennis shoes ...


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