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

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 ...


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