Richard S. Campagna, Scranton, for appellants.
James A. Kelly, Scranton, for appellee.
Jones, C. J., and O'Brien, Roberts, Pomeroy and Manderino, JJ. Manderino, J., dissents. Roberts, J., dissents. Eagen and Nix, JJ., did not participate in the consideration or decision of this case.
Appellants were granted a mandatory preliminary injunction by the Court of Common Pleas of Lackawanna County which required the appellee to provide bus transportation
for the children of appellants who are in the seventh and eighth grades and who reside in the Oakmont area of the City of Scranton. These students had been bused to school for the past six or seven years on account of their classification as elementary students; but, because of the opening of the East Scranton Junior High School in the Fall of 1973, approximately sixty students from the Oakmont area were reassigned to the new Junior High School and reclassified as secondary students. The policy of the School Board as announced at a meeting on July 9, 1973, is to provide transportation for resident pupils in grades seven through nine attending elementary or secondary schools if no public transportation is available and the residence of the child is two or more miles from school, or for a lesser distance if a certified hazardous condition exists. The policy was against busing on the basis of hazard alone. Because the two and one-half mile route which the reclassified Oakmont students would have to traverse to and from the new Junior High School was certified as a hazardous traffic area by the Pennsylvania Department of Transportation and because the lower court felt that the School Board "may" have abused its discretion in choosing not to bus the Oakmont seventh and eighth graders, a decree issued requiring the Board to bus these children conditioned upon the entry of security by the appellants. On appeal to the Commonwealth Court, the decree was vacated on the grounds that the lower court had not found the requisite clear abuse of discretion and that the lower court failed to make a finding as to adequate alternative transportation facilities available to the Oakmont students. The Commonwealth Court remanded for a reconsideration of these deficiencies. Board of Directors of the School District of the City of Scranton v. Roberts, 13 Pa. Commw. 464, 320 A.2d 141 (1974). We granted allocatur and hereby affirm the order of the Commonwealth Court.
As a preliminary consideration, we recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor. Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316 (filed April 17, 1975); Credit Alliance Corp. v. Philadelphia Minit-Man Car Wash Corp., 450 Pa. 367, 301 A.2d 816 (1973); Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A.2d 748 (1972). "In order to sustain a preliminary injunction, the plaintiff's right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted." Zebra v. Pittsburgh School District, 449 Pa. at 437, 296 A.2d at 750.
A mandatory injunction which commands the performance of some positive act requires a much stronger case. We have often stated that a mandatory injunction which is imposed to preserve the status quo*fn1
should be issued only in rare cases and certainly more sparingly than one which is merely prohibitory. Zebra v. Pittsburgh School District, supra; McMullan v. Wohlgemuth, 444 Pa. 563, 281 A.2d 836 (1971). Thus, in order for a mandatory injunction to issue, it is essential that a clear right to relief in the plaintiff be established. The ...