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decided: April 20, 1972.


Appeal from decree of Court of Common Pleas of Dauphin County, No. 3043 of 1970, in case of Walter Balsbaugh et al. v. James H. Rowland, Sr. et al.


William H. Naugle, with him Naugle & Sullivan, for appellants.

James W. Evans, Solicitor, for Harrisburg School District, appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones concurs in the result.

Author: Pomeroy

[ 447 Pa. Page 425]

This case comes to us on appeal from the order of the court below sustaining a demurrer to appellants' complaint in equity. Appellants, citizen taxpayers of the City of Harrisburg, brought this action on behalf of themselves and all other taxpayers in the Harrisburg City School District (the District), seeking declaratory relief and to enjoin the District's Board of School Directors (the Board) and its Superintendent of Schools from implementing "A Plan for Quality Desegregated Education for the Harrisburg City School District" (the Plan), which would, among other things, correct a racial imbalance in the District.

We learn from the briefs that the challenged Plan was the culmination of a two-year effort by the school board to devise an acceptable method of improving its educational program by balancing the racial composition of the District's schools. The effort apparently

[ 447 Pa. Page 426]

    stemmed from a finding by the Pennsylvania Human Relations Commission that significant racial imbalance existed in the District's schools, and that steps should be taken to correct it.

In 1968 and again in 1969, plans were submitted by the Board to the Commission, but found to be unsatisfactory. Thereafter, the Board retained the services of a non-profit educational consulting service known as Research for Better Schools, Inc., of Philadelphia to "prepare and present to the Board for its consideration a written plan for the systematic racial desegregation of the Harrisburg Public School System." In April of 1970 the consulting firm presented a proposed plan to the Board, which duly adopted it. We are told that the Plan and its implementation was later approved by the Department of Public Instruction of the Commonwealth and by the Human Relations Commission.

Within a few weeks after the Plan was adopted by the Board, appellants filed their complaint in equity, naming as defendants the members of the school board and the superintendent of schools. After a hearing, appellants' application for a preliminary injunction was denied. Appellees then filed preliminary objections in the nature of a demurrer to the complaint, which were sustained by the court en banc, President Judge Kreider dissenting. This appeal followed.*fn1

[ 447 Pa. Page 427]

A demurrer, of course, is an assertion that the complaint does not set forth a cause of action upon which relief can be granted. It admits, for the purpose of testing the sufficiency of the complaint, all properly pleaded facts, but not conclusions of law. Engel v. Page 427} Parkway Co., 439 Pa. 559, 266 A.2d 685 (1970); Robinson v. Philadelphia, 400 Pa. 80, 82, 161 A.2d 1 (1960); Fawcett v. Monongahela Co., 391 Pa. 134, 137 A.2d 768 (1958); Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491 (1955); Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895 (1953).

The factual averments of the complaint before us may be summarized as follows: (1) The Board adopted the Plan of desegregation and reorganization on May 8, 1970, pursuant to a Board resolution of February 13, 1970. By this resolution the Board "re-affirm[ed] its policy of developing integrated quality education in the District", and to that end "adopt[ed] as a policy the reorganization of all elementary units for the school year beginning September 1970, so that the student enrollment in each school will reflect within ten percent (10%) the racial composition of the total public school population."*fn2 (2) By reason of the Plan the 1970-71 school year budget as tentatively adopted by the Board on May 22, 1970, contained proposed expenditures of $1 1/2 million more than those for the preceding school year. (3) The Plan requires daily cross-city busing of approximately 28% of the students enrolled in the District schools in order to establish racially balanced school attendance patterns. (4) The proposed budget for 1970-71 placed the cost of busing, school bus monitors, and a school lunch program for transported children at more than $500,000 but made no provision for certain other unstated costs involved in the program, estimated at an additional $300,000 to $500,000. (5) The Plan resulted from the desegregation directive given

[ 447 Pa. Page 428]

    to the Board by the Pennsylvania Human Relations Commission. (6) No segregation has ever existed within the Harrisburg Public School system nor has the Board ever embarked on any "Plan of Segregation". (This averment is arguably a conclusion of law.)

Following the recitation of these facts, the complaint states the legal conclusion that the adoption of the Plan was "unconstitutional and unreasonable". Three ...

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