Ciccone v. Palmyra School District

3 Pa. D. & C. 62, 1923 Pa. Dist. & Cnty. Dec. LEXIS 381

• Court: Pennsylvania Court of Common Pleas, Wayne County
• Decided: March 5, 1923
• Docket: No. 19
• Status: Published

Opinion

Searle, P. J.,

The case has been heard upon petition and answer, no replication having been filed to the answer, and from the pleadings we find that the plaintiff is the father of six children, that he resides in Palmyra Township, near to Paupack Township, and has been sending his children to the Paupack Township School, Palmyra Township School District having been paying Paupack Township School District their tuition, as provided by section 1404 of the School Code of 1911.

During the school year of 1921-22, the average daily attendance of the school in Paupack Township which these children were attending fell below ten, and the school was closed, as provided by the Act of July 22, 1919, § 1, P. L. 1117.

Plaintiff claims that this school being closed, and his children living more than one and a-half miles from a school, they are entitled to transportation, to be paid for by the Palmyra District, as provided by section 1406 of the School Code.

We cannot maintain this contention. No school in Palmyra Township was closed and the children of plaintiff did not belong to Paupack Township, as provided by said section 1406. A child belongs in the district where his father resides and pays taxes. In this case the father resides in Palmyra Township, upon a farm, and pays his taxes in that township.

It is to be noticed, that, under section 1406, it states that when a school is closed, “the directors shall provide transportation.” This, we think, is mandatory. Under section 1404, however, which applies to this case, it states “the board of directors may provide free transportation.” This section 1404 leaves it discretionary with the board whether or not they will furnish transportation. See Union Township School District, 26 Dist. R. 870; Jones v. Boulter, 61 Pa. Superior Ct. 73; Franktown Township School Directors, 21 Dist. R. 603; Com. v. Ferguson Township School District, 40 Pa. C. C. Reps. 470.

We, therefore, conclude that plaintiff’s children did not belong to the Paupack Township School which was closed, but did belong to Palmyra Township for school purposes; that no school having been abandoned in Palmyra Township, section 1406 of the School Code does not apply, and under section 1404 of the School Code it is discretionary with the Board of Directors of Palmyra Township to grant free transportation to these children.

This legal proposition is clear to us, and this is a case in which we cannot exercise our discretion.

Now, to wit, March 5, 1923, these proceedings are dismissed, at costs of plaintiffs. Prom A. G. Rutherford, Honesdale, Pa.