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BOROUGH CLIFTON HEIGHTS ET AL. v. SCHOOL DISTRICT TOWNSHIP UPPER DARBY ET AL. UPPER DARBY SCHOOL DISTRICT (INCORRECTLY DESIGNATED SCHOOL DISTRICT TOWNSHIP UPPER DARBY) ET AL. (09/09/77)

decided: September 9, 1977.

THE BOROUGH OF CLIFTON HEIGHTS ET AL.
v.
THE SCHOOL DISTRICT OF THE TOWNSHIP OF UPPER DARBY ET AL. UPPER DARBY SCHOOL DISTRICT (INCORRECTLY DESIGNATED SCHOOL DISTRICT OF THE TOWNSHIP OF UPPER DARBY) ET AL., APPELLANTS. (3 CASES)



Appeals from the Orders of the Court of Common Pleas of Delaware County in case of The Borough of Clifton Heights, and Joseph T. Kelly, Jr., and Claudia Fagioli, and Evelyn Hess, and Edward F. Gilligan, and William Cameron, and John W. Goff, and Domenic Marella, and Earl Henninger, and Ray Carlin, and Michael J. Murphy, and William Esbiornson, and Elsie Sederholm, and E. Jack Ippoliti v. Upper Darby School District (incorrectly designated School District of the Township of Upper Darby), and Mary E. Black, and Teresa F. Furey, and L. Robert Juckett, and Edward J. Knorr, and Harry D. McHorney, and Donald E. Salmon, and Walter M. Senkow, and Thomas J. Stanton, and Joseph C. Zoll, Jr., No. 76-7433.

COUNSEL

Kenneth A. Clouse, with him Lewis B. Beatty, Jr., and Butler, Beatty, Greer & Johnson, for appellants.

Barry C. Dozer, with him F. L. Guiliano, for appellees.

Michael I. Levin, with him William Fearen, and Cleckner & Fearen, for amicus curiae, Pennsylvania School Boards Association.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by Judge Wilkinson, Jr. Judge Kramer did not participate in the decision in this case.

Author: Wilkinson

[ 31 Pa. Commw. Page 525]

This case involves three consolidated appeals by the Upper Darby School District.*fn1 The rather narrow question it presents is whether the record established before the Court of Common Pleas of Delaware County supports that court's legal conclusion that the Upper Darby School Board (Board) acted in an arbitrary and capricious manner in the closing of the Clifton Heights Junior High School (Clifton Heights).

On May 27, 1976, the Board adopted two resolutions. These provided for (1) the closing of Clifton Heights effective the 1976-77 school year and the reassignment of its students to one of the two other junior high schools within the district, and (2) a redrafting of the secondary school attendance area boundaries within the district. The Borough of Clifton Heights, its officers in their capacity as such and

[ 31 Pa. Commw. Page 526]

    as taxpayers, and various other taxpayers (Appellees), commenced this action in equity seeking injunctive relief restraining the implementation of these resolutions. The lower court issued an order granting a preliminary injunction and subsequent to a final hearing the injunction was made permanent. The court based its determination upon the conclusion that the evidence reflected such a lack of inquiry by the Board into the facts necessary to form an intelligent judgment that the decision to close Clifton Heights was arbitrary and capricious. We disagree and will reverse.*fn2

Section 1311(a) of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. ยง 13-1311(a) provides:

The board of school directors of any school district may, on account of the small number of pupils in attendance, or the condition of the then existing school building, or for the purpose of better gradation and classification, or other reasons, close any one or more of the public schools in its district. Upon such school or schools being closed, the pupils who belong to the same shall be assigned to other schools, or upon cause shown, be permitted to attend schools in other districts.

This section vests broad discretionary power within school boards with regard to the closing of schools. Such decisions by a board are therefore not reviewable by the courts in the absence of fraud or the ...


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