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BABCOCK SCHOOL DISTRICT v. JAMES EDWARD POTOCKI AND DIANE LINDA POTOCKI (02/01/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 1, 1983.

BABCOCK SCHOOL DISTRICT, APPELLANT
v.
JAMES EDWARD POTOCKI AND DIANE LINDA POTOCKI, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF TIMOTHY JAMES POTOCKI, APPELLEES

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of James Edward Potocki and Diane Linda Potocki, individually and as parents and natural guardians of Timothy James Potocki v. Babcock School District, No. GD 81-22985.

COUNSEL

Lee A. Donaldson, Jr., Donaldson & Donaldson, for appellant.

John R. Orie, Jr., for appellees.

William Fearen, with him Michael I. Levin, Cleckner and Fearen, for Amicus Curiae, the Pennsylvania School Boards Association.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 71 Pa. Commw. Page 505]

Babcock School District appeals an Allegheny County Common Pleas Court order dismissing the

[ 71 Pa. Commw. Page 506]

School District's petition to open a peremptory judgment in mandamus.*fn1 We affirm.

The Potockis, Babcock School District residents, transferred their child to a public school in a neighboring district. Later their request to the District to provide their son with free transportation to and from the new school was denied. They then sought relief in mandamus. Next followed a motion for peremptory judgment under Pennsylvania Rule of Civil Procedure 1098*fn2 which, after hearing, was granted. The School District's petition to open the judgment was dismissed.

Where a party appeals a denial of its petition to open a peremptory judgment, our scope of review is limited to determining whether the trial court abused its discretion. See, e.g., Lened Homes, Inc. v. Department of Licenses and Inspections of the City of Philadelphia,

[ 71 Pa. Commw. Page 507386]

Pa. 50, 123 A.2d 406 (1956); City of Greensburg v. Cooper, 14 Pa. Commonwealth Ct. 419, 322 A.2d 152 (1974). An abuse of discretion will be found only where the party has met his burden of showing good cause for the opening of the judgment.*fn3 See Pa. R.C.P. No. 1098.

The School District argues that the trial court abused its discretion in refusing to open the peremptory judgment because it was entered prior to the filing of an answer to the complaint. This contention is without merit. While an abuse of discretion may be found where a trial court has not entered peremptory judgment in accordance with the procedure provided by law, see Hamby v. Stoe, 448 Pa. 483, 295 A.2d 309 (1972), it is not procedurally incorrect to enter judgment following a hearing on the motion for peremptory judgment, and prior to the filing of an answer. See Pa. R.C.P. No. 1098; Philadelphia Suburban Water Co. v. Department of Transportation, 36 Pa. Commonwealth Ct. 8, 387 A.2d 501 (1978).

The School District also argues that the court below abused its discretion because there is no clear legal duty to provide the transportation. We disagree. While a refusal to open a judgment is an abuse of discretion where the entry of judgment was based upon a misapplication or misinterpretation of the law, cf. McKelvey v. Colonial School District, 35 Pa. Commonwealth Ct. 264, 385 A.2d 1040 (1978) (petition to open default judgment),*fn4 this is not the case here. Our Supreme Court has approved this Court's pronouncement

[ 71 Pa. Commw. Page 508]

    that Section 1361 of the Public School Code*fn5 requires school districts which provide any free transportation to resident pupils to provide it to all such pupils attending public or private schools located within the district or a ten-mile radius thereof.*fn6 Springfield School District v. Department of Education, 483 Pa. 539, 397 A.2d 1154 (1979), aff'g, School District of Pittsburgh v. Department of Education, 33 Pa. Commonwealth Ct. 535, 382 A.2d 772 (1978).

The School District also argues that the refusal to open was an abuse of discretion because it pleaded facts demonstrating a meritorious defense. We disagree. To meet its burden of showing good cause for opening a judgment, a party must plead facts in its petition to open which demonstrate a provable, meritorious defense. Cf., e.g., City of Philadelphia v. New Sun Ray Drug, Inc., 39 Pa. Commonwealth Ct. 111, 394

[ 71 Pa. Commw. Page 509]

A.2d 1311 (1978) (petition to open default judgment). The School District simply averred that substantial issues of fact were raised by the Potockis' complaint. This general averment, of itself, does not satisfy the requirement that the facts be pleaded with the specificity necessary to demonstrate the merits of the defense. See Liberty National Bank of Pittston v. Degillio, 406 Pa. 127, 176 A.2d 446 (1962); City of Philadelphia v. New Sun Ray Drug, Inc. The petition contains no other factual basis to support the District's thesis.*fn7

Affirmed.

Order

The Allegheny County Common Pleas Court order of October 5, 1981, in No. GD 81-22985, which dismissed the Petition to Open Judgment is hereby affirmed.

Disposition

Affirmed.


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