Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Mr. and Mrs. Barry Miller, Mr. and Mrs. Gerald Kallick, Mr. and Mrs. Reuben Shapiro, Mr. and Mrs. Morris Lift, Dr. and Mrs. Victor Slotnick, Mr. and Mrs. William Cronon, Mr. and Mrs. Morris Sewell v. School Board of Lower Merion Township and Henry C. Lucas, Mr. Reeves Lukens, Mrs. Mary L. Packard, Edward Stemmler, M. D., Mrs. William A. Jeffers, Mr. William H. Loesche, Jr., Mr. Henry G. Parkin, Jr., Mr. Nelson W. Ray, Jr., and Mrs. Bernard Shapiro, No. 74-12505.
John C. Bonner, for appellants.
Charles Potash, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
[ 21 Pa. Commw. Page 518]
The appellants, the parents of 13 public school students, filed their complaint in equity in the Court of Common Pleas of Montgomery County seeking a preliminary and permanent injunction restraining the Lower Merion School District from transferring their children from the Merion to the Bala Elementary School. The complaint was filed August 28, 1974 and on the same day Judge Smillie granted an ex parte preliminary injunction requested by the plaintiffs and scheduled a hearing on the continuance of the injunction for September 3, 1974. It appears from the record that school was scheduled to commence in Lower Merion Township on September 4, 1974. Judge Cirillo conducted a hearing on the injunction on September 3, 1974 and on the following day handed down an order dissolving the preliminary injunction. In the same order the judge sustained preliminary objections which had been in the meantime filed by the defendants and dismissed the plaintiffs' complaint. On September 25, 1974 Judge Cirillo handed down a second order dissolving the ex parte injunction and releasing a $200 bond which had been filed by the plaintiffs.
We can find nothing in the record which suggests that the defendants' preliminary objections were ever the subject of argument in the court below. No mention of them was made at the hearing conducted by Judge Cirillo and the briefs and arguments made in this Court addressed themselves solely to the propriety of the dissolution of the preliminary injunction. We conclude, therefore, that the judge's actions sustaining preliminary objections and dismissing the complaint by the order of September 4, 1974 were inadvertant and that we have before us for review only the propriety of Judge Cirillo's action dissolving the ex parte injunction.
[ 21 Pa. Commw. Page 519]
The scope of our review is narrow, as appears by its description in Stander v. Kelley, 432 Pa. 1, 246 A.2d 649 (1968):
"This is an appeal from an Order denying a preliminary injunction. In such a case, the issue before this Court and our scope of review is whether there was a clear abuse of discretion, or palpable legal error, and the merits of the case are not considered or decided: City Line Open Hearth, Inc. v. Hotel, Motel & Club Employees' Union, 413 Pa. 420, 436, 197 A.2d 614; Mc Donald v. Noga, 393 Pa. 309, 311, 141 A.2d 842.
"In McDonald v. Noga, 393 Pa., supra, the Court said (page 311): 'On an appeal from a decree granting or refusing a preliminary injunction, the appellant has a very heavy burden to overcome; such a decree will not be interfered with upon appellate review in the absence of a plain abuse of discretion by the court below: Aldrich v. Geahry, 360 Pa. 376, 379, 61 A.2d 843. . . .'
"In City Line Open Hearth, Inc. v. Hotel, Motel & Club Employees' Union, 413 Pa., supra, the Court said (page 436): 'On an appeal from the grant or refusal of a preliminary injunction, the test in this Court is well settled. We consider and decide, not the merits of the case but only whether there were any apparently reasonable or justifiable grounds for the action of the Court below; and if such exists, the Decree (or Order) will be affirmed unless the record presents palpable legal error: . . . .'
"We place our decision on the well recognized ground that there was no clear abuse of discretion, or palpable legal error." 432 Pa. at 2-3, ...