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GONZALEZ v. PHILADELPHIA SCHOOL DISTRICT (03/06/73)

decided: March 6, 1973.

GONZALEZ, ET AL.
v.
PHILADELPHIA SCHOOL DISTRICT, ET AL.



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Tomayo Gonzalez, by his mother and natural guardian, Florinda Gonzalez, Dennis Thomas, by his mother and natural guardian, Vivian Thomas, and Union of Student Governments, by Susan Bailey, Trustee ad litem, on behalf of themselves and all other students similarly situated, v. School District of Philadelphia, Matthew Costanzo, Superintendent, School District of Philadelphia, on behalf of himself and all other personnel under the School District of Philadelphia, and Louis D'Antonio, principal of John Bartram High School, on behalf of himself and all other school principals in the School District of Philadelphia, Equity Docket No. 2122 December Term 1971.

COUNSEL

Stephen F. Gold, with him Jonathan M. Stein, for appellants.

Alan H. Gilbert, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt.

Author: Per Curiam

[ 8 Pa. Commw. Page 132]

This is an appeal from an Order of the Court of Common Pleas of the County of Philadelphia sustaining the Preliminary Objections of the defendants (as described in said Order, infra). At the argument before this Court, mention was made by the defendants that the appeal should be quashed for the reason that the lower court's Order was interlocutory and not final; but no formal motion was made or presented.

Also at the oral argument, counsel for the plaintiffs stated that plaintiffs did not desire to file an amended complaint on the "third and fourth causes of action" as specifically provided by the lower court Order; and that thereby they were waiving whatever rights they may have had to so amend.

As a result of these developments, counsel for both plaintiffs and defendants seek a final determination on the merits, as a matter of law, concerning the first and second causes of action stated in the complaint.

After submission of briefs, argument and a careful review of the entire record, we conclude that based upon the well-reasoned opinion of the court below, the Order of the Court must be affirmed. That opinion correctly and concisely sets forth the issues and proper rulings and holding. It reads as follows:

"Opinion

"Plaintiffs filed a Complaint in Equity against Defendants seeking injunctive and other equitable relief.

[ 8 Pa. Commw. Page 133]

Preliminary Objections in the nature of demurrers and other asserted grounds were filed by Defendants. Plaintiffs thereupon filed an Amended Complaint in order to meet certain of these Objections and numerous Interrogatories were served upon Defendants. Defendants moved for a Protective Order as to said Interrogatories.

"Stated briefly, Plaintiffs averred that Tamayo Gonzalez, a student over compulsory school age, was expelled from John Bartram High School in Philadelphia for admittedly numerous and unexcused absences. Plaintiff Dennis Thomas, a student of compulsory school age, was suspended from John Bartram High School in December, 1970 for admittedly numerous and unexcused latenesses, and a notation of such suspension appeared in the student's file which was alleged to prejudice his admission to college and future employment. The Amended Complaint further averred the factually unsupported conclusion that sanctions for absences and lateness are imposed with greater frequency against black students and, in addition, that the Defendants are guilty of arbitrary and capricious expulsion or suspension as to students within a given school who have violated on an equal number of occasions.

"Plaintiffs therefore advanced four Causes of Action:

"1. The Pennsylvania Public School Code of 1949, [Act of March 10, 1949, P.L. 30, as amended] 24 P.S. Section 1-101 et seq. (the 'Code') does not authorize suspension or expulsion against students of compulsory school age for unexcused absences or lateness, but rather the only sanction available to the School District is the imposition of a monetary fine to be imposed upon the parents after appropriate proceedings.

"2. Students over compulsory school age have a right to attend school until they attain age 21 and may not be suspended or expelled for unexcused absences or lateness. Plaintiffs argue that if the School District

[ 8 Pa. Commw. Page 134]

    is powerless to expel or suspend students of compulsory school age, it must inevitably follow that the School District of Philadelphia is equally powerless to suspend or expel when the student is not compelled by law to attend school.

"3. Suspension and expulsion for absences and lateness are imposed at a disportionately higher rate in 'predominately ...


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