Petition for Permission to Appeal from Common Pleas Philadelphia Court, Philadelphia County; Honorable Samuel M. Lehrer Judge.
Barbara W. Mather, with her, David Castro, Pepper, Hamilton & Scheetz, Philadelphia, for appellants.
Stephen P. Gallagher, Stack & Gallagher, P.C., Philadelphia, for appellee, Council of the City of Philadelphia.
Joseph O'Donnell, Philadelphia, for appellees, Valerie Gibson et al.
Crumlish, Jr., President Judge, and Doyle, Barry, Colins, Palladino, McGinley and Smith, JJ., concur. Palladino, J., concurs in the result only.
[ 129 Pa. Commw. Page 504]
The School District of Philadelphia (District), Board of Education (Board), and Constance E. Clayton, Superintendent of Schools, appeal a Philadelphia County Common Pleas Court interlocutory order granting Valerie Gibson, Phyllis Ruffin and the Philadelphia City Council's (Council) motion for peremptory judgment in mandamus.*fn1 We affirm.
In March of 1988, the District submitted to the Council its preliminary "lump sum" statement,*fn2 which included the
[ 129 Pa. Commw. Page 505]
District's current allocation for child day-care programs. The District, subsequently faced with a projected cumulative five-year deficit of approximately $574 million, requested in its operating budget a tax package to fund this deficit. Council passed a tax authorization ordinance (Ordinance 90), requiring that all revenues raised as a result of the authorized tax rate increase be "utilized solely for the purpose of maintaining and increasing services to children, and for no other purpose."
After the enactment of Ordinance 90, the Board adopted a budget which revealed a current surplus of $31,771,500 for Fiscal Year 1989 (FY 1989) as of June 30, 1989. This surplus, if applied to the next fiscal year's operating budget, would leave the District with an anticipated $30 million deficit for that year and satisfied only twenty percent of its projected five-year deficit. Hence, on July 7, 1988, the Board announced that it would close six of its operating day-care centers as part of a series of reductions aimed at alleviating its long-term fiscal crisis. The Board made no claim that the day-care center closings were due to a current budget shortfall.
The Council and Valerie Gibson brought suit in Philadelphia County Common Pleas Court seeking a peremptory judgment in mandamus to compel the Board to maintain and continue to fund all child-care programs through the current fiscal year, FY 1989. The trial court granted mandamus, concluding that day-care center operation is a District-rendered custodial function and the maintenance of such programs is a proper exercise of the City's police power under the Home Rule Charter (Charter).*fn3 The Court required the District to continue to operate the six day-care centers through FY 1989 because the budget submitted to the Council contained a provision for the funding of these ...