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SIMON ABRAHAMS ET AL. v. WALLENPAUPACK AREA SCHOOL DISTRICT (11/21/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 21, 1980.

SIMON ABRAHAMS ET AL., APPELLANTS
v.
WALLENPAUPACK AREA SCHOOL DISTRICT, APPELLEE

Appeal from the Order of the Court of Common Pleas of Pike County in the case of Simon Abrahams, Jessica Abrahams, Dara Abrahams, Rebecca Abrahams, Adam Abrahams, minors, by their natural parent and guardian, Judith Abrahams, and Judith Abrahams in her own right, and Veronica Behan, Michael Behan, Patricia Behan, Kathy Behan, Kevin Behan, minors, by their natural parents and guardians, Michael Behan and Helen Behan, and Michael Behan and Helen Behan, in their own right, and Sara Bloom, Suzy Bloom, Michael Bloom, minors, by their natural parents and guardians, Ronald Bloom and Sheila Bloom, and Ronald Bloom and Sheila Bloom in their own right, and James Bohlin, Lisa Bohlin, minors, by their natural parents and guardians, Harold Bohlin and Mary Bohlin, and Harold Bohlin and Mary Bohlin, in their own right, and Michele Ciancio, a minor, by her natural parents and guardians, John Ciancio and Michelina Ciancio, and John Ciancio and Michelina Ciancio, in their own right, and Michael Coleman, Robert Coleman, Dana Stout, Robin Stout, minors, by their natural parent and guardian, Walter J. Coleman, and Walter J. Coleman in his own right, and Vincent Correra, Marc Correra, Vicki Correra, Michael Correra, minors, by their natural parents and guardians, Vincent C. Correra and Anna M. Correra, and Vincent C. Correra and Anna M. Correra in their own right, and Peter Gonzalez, Bernadette Davidowicz, minors, by their guardian, Gertrude Crowe, and Gertrude Crowe in her own right, and Raymond Dieck, a minor, by his natural parents and guardians, Herbert W. Dieck and Kathryn Dieck, and Herbert W. Dieck and Kathryn Dieck in their own right, and Bobby French, Marian French, minors, by their natural parent and guardian, William French, and William French, in his own right, and Frank Friedrich, Joanne Friedrich, minors, by their natural parents and guardians, Anthony Darmiento and Barbara Darmiento, and Anthony Darmiento and Barbara Darmiento, in their own right, and Anne Marie Gaeta, Patrick Gaeta, John Gaeta, Maria Gaeta, minors, by their natural parents and guardians, Paul Gaeta and Mary Jean Gaeta, and Paul Gaeta and Mary Jean Gaeta, in their own right, Kim Hahn, a minor by her natural parents and guardians, Edward Hahn and Patricia Hahn and Edward Hahn and Patricia Hahn in their own right, and Douglas Hall, Andrew Hall, Matthew Hall, minors, by their natural parents and guardians, Robert Hall and Marijane Hall, and Robert Hall and Marijane Hall, in their own right, and Alison Hall, a minor, by her natural parents and guardians, Harold Hall and Ruth Hall, and Harold Hall and Ruth Hall in their own right, and Donna Heck, Joseph Heck, minors, by their natural parents, and guardians, Joseph Heck and Mary Heck, and Joseph Heck and Mary Heck, in their own right, and Rhonda Hesser, Andrea Hesser, Dean Hesser, Amanda Hesser, minors, by their natural parents and guardians, Thomas Hesser and Judith Hesser, and Thomas Hesser and Judith Hesser in their own right, and Karolyn Kussin, a minor by her natural parents and guardians, Fred Kussin and Rosalie Kussin, and Fred Kussin and Rosalie Kussin, in their own right, and Robert LaRossa, Patricia LaRossa, minors, by their natural parents and guardians, Donald LaRossa and Margaret LaRossa and Donald LaRossa and Margaret LaRossa in their own right, and Michele Lequin, Christopher Lequin, minors, by their natural parents and guardians, Stanley Lequin and Loretta Lequin, and Stanley Lequin and Loretta Lequin in their own right, and Lisa Lieto, Janet Lieto, John Lieto, Suzanne Lieto, minors, by their natural parents and guardians, John Lieto and Olivia Lieto, and John Lieto and Olivia Lieto in their own right, and Charles Lisa, Renee Lisa, minors, by their natural parents and guardians, Charles Lisa and Elvera Lisa, and Charles Lisa and Elvera Lisa, in their own right, and John LoDolce, Robert LoDolce, Ellen LoDolce, Michael LoDolce, Susan LoDolce, Joanne LoDolce, minors, by their natural parents and guardians, Robert LoDolce and Joan LoDolce, and Robert LoDolce and Joan LoDolce in their own right, and Harry Marienschek, Frank Marienschek, minors, by their natural parents and guardians, Walter E. Marienschek and Mary Marienschek, and Walter E. Marienschek and Mary Marienschek, in their own right, and Jeffrey Moscovitz, Bonnie Moscovitz, minors, by their natural parents and guardians, Irwin Moscovitz and Gloria Moscovitz, and Irwin Moscovitz and Gloria Moscovitz in their own right, and Daniel S. O'Connor, a minor, by his natural parent and guardian, Pearl L. O'Connor, and Pearl L. O'Connor in her own right, and Shirley Oneschuk, a minor, by her natural parents and guardians, Walter Oneschuk and Tomeko Oneschuk, and Walter Oneschuk and Tomeko Oneschuk in their own right, and Kenneth Paltzer, a minor, by his natural parents and guardians, Norman P. Paltzer and Muriel Paltzer, and Norman P. Paltzer and Muriel Paltzer in their own right, and Lisa Pigott, a minor by her natural parents and guardians, Henry M. Pigott, Jr. and Mildred Pigott, and Henry M. Pigott, Jr. and Mildred Pigott, in their own right, and John Proulx, Theresa Proulx, minors, by their natural parents and guardians, Joseph R. Proulx and Anne M. Proulx, and Joseph R. Proulx and Anne M. Proulx in their own right, and Maryann Roberti, Thomas Roberti, Diane Roberti, James Roberti, William Roberti, minors, by their natural parents and guardians, Thomas Roberti and Arlene Roberti, and Thomas Roberti and Arlene Roberti, in their own right, and Richard Rumpf, a minor, by his natural parents and guardians, Richard Rumpf and Patricia Rumpf, and Richard Rumpf and Patricia Rumpf in their own right, and Jason Sauer, a minor, by his natural parents and guardians, Robert W. Sauer, Jr. and Connie Sauer, and Robert W. Sauer, Jr. and Connie Sauer, in their own right, and Thomas Stiles, William Stiles, minors, by their natural parents and guardians, Frank H. Stiles and Catherine Stiles, and Frank H. Stiles and Catherine Stiles in their own right, and Gregory Warr, Pamela Warr, minors, by their natural parents and guardians, Frank M. Warr and Barbara Warr, and Frank

COUNSEL

Randolph T. Borden, Borden & Leventhal, for appellants.

Warren D. Utermahlen -- Krawitz & Ridley, P.C., for appellee.

President Judge Crumlish and Judges Blatt and Williams, Jr. sitting as a panel of three. Opinion by Judge Williams, Jr. President Judge Crumlish concurs in the result only.

Author: Williams

[ 54 Pa. Commw. Page 642]

This is an appeal by numerous co-parties from an order of the Court of Common Pleas of Pike County dismissing their complaint in equity for injunctive relief against the Wallenpaupack Area School District. More technically, they appeal from the lower court's dismissal of their exceptions to the decree nisi.

This case was born when the School Board of the Wallenpaupack Area School District (School District) on June 13, 1977, voted to discontinue school bus service on the private, interior roads of a private residential development named "Hemlock Farms."*fn1 As a result of that decision, the school children of Hemlock Farms would, commencing with the fall term of 1977,

[ 54 Pa. Commw. Page 643]

    be picked up and discharged at the entrances to the development. Concerned parents sued to enjoin the School District from discontinuing the previous service on the interior roads, or to obtain mandatory relief for the restoration of the service.

Between 1972 and 1977 the School District had provided such service to Hemlock Farms. However, one of the reasons underlying the School Board's decision to discontinue it was a concern that other private developments in the School District could insist upon equal service, and the School District would be financially unable to comply.

In dismissing the parents' complaint in equity the lower court determined that the School Board had not committed an abuse of discretion or error of law in its decision to discontinue the service, and that no judicial intervention was warranted. We agree.

The legal consideration that is central to this case is Section 1361 of the Public School Code of 1949.*fn2 In pertinent part that section states:

The board of school directors in any school district may, out of the funds of the district, provide for the free transportation of any resident pupil to and from the kindergarten, elementary school, or secondary school in which he is lawfully enrolled. . . . (Emphasis added.)

The power granted to school districts under this section is plenary, absent a showing of bad faith or abuse of discretion. Roberts v. School District of Scranton, 462 Pa. 464, 341 A.2d 475 (1975).

Courts will not interfere with a school board's exercise of its discretionary power unless the action was based on a misconception of law, ignorance through lack of inquiry into the facts necessary for an intelligent

[ 54 Pa. Commw. Page 644]

    judgment, or unless the action is the result of arbitrary will or caprice. Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A.2d 748 (1972); Hibbs v. Arensberg, 276 Pa. 24, 119 A. 727 (1923).

The appellants assert that the School Board's decision to stop serving the interior roads of Hemlock Farms was based on a misconception of law. Specifically, the appellants argue that the Board was incorrect in its opinion that constitutional and other legal considerations would compel the School District to provide equal service to other private developments. In order for us to conclude that the school authorities were incorrect in that opinion, we would have to decide the constitutional ramifications of the School District's not providing the same service to all private developments. Neither the record nor the briefing of this case, in its present posture, would enable this Court to properly decide that question. Therefore, it cannot be declared that the School Board's opinion was incorrect or a misconception of law. In that regard, we cannot be unmindful of the vast stream of litigation and decisions concerning the classifications governmental units may follow in allocating benefits and services to citizens. For the School Board to mold its action in light of that legal realty does not constitute bad faith or an abuse of discretion.

It is only where a school board transcends the limits of its legal discretion that it is amenable to the injunctive process of a court of equity. Roberts, supra; Landerman v. Churchill Area School District, 414 Pa. 530, 200 A.2d 867 (1964); Spann v. Joint Boards of School Directors, 381 Pa. 338, 113 A.2d 281 (1955). The burden of showing such an abuse is a heavy one and rests with the party seeking the injunction. Zebra, supra; Landerman, supra. The appellants' generalized disagreement with the School Board's conception of constitutional law does not satisfy that burden, especially

[ 54 Pa. Commw. Page 645]

    when that conception is at least facially reasonable.

The appellants also assert that it is mandatory for the School District to provide the bus service here in question, by force of Section 1362 of the Public School Code.*fn3 That assertion follows from their allegation that the interior roads of Hemlock Farms present a hazard to the safety of the school children.

In pertinent part, Section 1362 provides as follows:

The free transportation of pupils, as required or authorized by this act, or any other act, may be furnished by using either school conveyances, private conveyances, or electric railways, or other common carriers, when the total distance which any pupil must travel by the public highway to or from school, in addition to such transportation, does not exceed one and one-half (1 1/2) miles, and when stations or other proper shelters are provided for the use of such pupils . . . and when the highway, road, or traffic conditions are not such that walking constitutes a hazard to the safety of the child, as so certified by the Department of Transportation. . . . (Emphasis added.)

To construe Section 1362 itself as imposing any obligation on a school board would require us to ignore the word "may." This Section of the Public School Code is a complement to other sections which permit or require the provision of free transportation. Section 1362 does no more than enumerate the means of transportation which a school board may employ under certain circumstances. In sum, Section 1362 does not mandate free bus service on the interior roads of Hemlock Farms. Furthermore, even if the "hazard" clause of Section 1362 did create such a duty, that duty would

[ 54 Pa. Commw. Page 646]

    not arise unless the hazard was certified by the Department of Transportation. There has been no such certification in this case.

Finally, the appellants attack the Board's decision as being based on ignorance through a lack of inquiry into the facts necessary to form an intelligent judgment. The record refutes that contention. The record indicates that, in addition to the legal issue of supplying the bus service to Hemlock Farms, the School Board additionally considered such factors as costs, traveling time, and conditions on the roadways in the School District. As we pointed out in Allen v. Uniontown Area School District, 4 Pa. Commonwealth Ct. 183, 285 A.2d 543 (1971), the process leading to the actual exercise of discretion cannot be unending.

For the reasons set forth, we affirm the order of the court below.

Order

And Now, the 21st day of November, 1980, the order of the Court of Common Pleas of Pike County entered May 31, 1979, at No. 5 of May Term 1977, is affirmed.

President Judge Crumlish concurs in the result only.

Disposition

Affirmed.


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