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DANIEL L. RYAN v. CITY PHILADELPHIA ET AL. (09/28/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 28, 1983.

DANIEL L. RYAN, FRANCIS J. MULHERN AND OTHERS SIMILARLY SITUATED, APPELLANTS
v.
CITY OF PHILADELPHIA ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Daniel L. Ryan, Francis J. Mulhern and others similarly situated v. City of Philadelphia, William J. Green, W. Wilson Goode, G. Edward DeSeve, Thomas A. Leonard, Gay P. Gervin, School District of Philadelphia and Michael Marcase, No. 3443 December Term, 1981.

COUNSEL

Kenneth E. Aaron, for appellants.

Joseph C. Crawford, Deputy City Solicitor, with him Jill A. Douthett, Deputy City Solicitor, and Mark A. Aronchick, Acting City Solicitor, for appellee, City of Philadelphia.

Eugene F. Brazil, for appellees, School District of Philadelphia and Michael Marcase.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and MacPhail. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 77 Pa. Commw. Page 284]

Daniel L. Ryan and Francis J. Mulhern appeal a Philadelphia County Common Pleas Court order sustaining the City's demurrer. We affirm.

Ryan and Mulhern filed a class action suit*fn1 in equity and for a declaratory judgment to enjoin and invalidate a transfer of $3,000,000 in City general

[ 77 Pa. Commw. Page 285]

    revenue funds to the Managing Director's "purchase of services" allocation.*fn2 The transfer was to cover the costs of busing school children. The City demurred, and the Common Pleas Court sustained the demurrer, dismissing the complaint with prejudice.

Our scope of review is limited to determining whether the lower court abused its discretion or committed an error of law. Quaker City Yacht Club v. Williams, 59 Pa. Commonwealth Ct. 256, 429 A.2d 1204 (1981). In an appeal where a demurrer has been sustained by the common pleas court, we must accept as true all well-pleaded facts set forth in the complaint, but we need not accept as true the legal conclusions contained therein. Monti v. City of Pittsburgh, 26 Pa. Commonwealth Ct. 490, 364 A.2d 764 (1976).

Ryan and Mulhern contend that the trial court erred. They argue that the busing of school children is not a municipal function, and thus the City cannot fund it.*fn3 This argument is unpersuasive.

It is clearly a municipal function of the City to protect its citizens' health, safety, and welfare. See Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A.2d 506 (1969). Since a prime purpose of school busing is to provide safe passage for children to and from school, the City is performing a municipal function

[ 77 Pa. Commw. Page 286]

    in funding school busing. Petitioners contend, however, that under Section 19(a)(2) of the First Class City Public Education Home Rule Act*fn4 (which prohibits the City -- with one exception not here pertinent -- from "regulating public education or the administration thereof") the City is prohibited from funding the busing of students. This contention is without merit. We conclude that the funding of School District busing is not a regulatory function. Moreover, Section 19(a)(2) does not preclude the City from regulating the necessary incidents of public education. See School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277, 207 A.2d 864 (1965). Assuming, arguendo, that the City is "regulating" by funding school busing, it is only regulating a necessary incident of public education, to wit, the passage of children to and from school.

Affirmed.*fn5

[ 77 Pa. Commw. Page 287]

Order

The Philadelphia County Common Pleas Court order, No. 3443 December Term, 1981, dated June 24, 1982, is hereby affirmed.

The Appellants' Motion to Strike and/or Quash Question III in the City of Philadelphia's Counterstatement of Questions Involved is hereby granted.

Disposition

Order affirmed. Motion to Strike and/or Quash Question III granted.


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