Crowe Ex Rel. Crowe v. School District of Pittsburgh

805 A.2d 691, 2002 Pa. Commw. LEXIS 664
CourtCommonwealth Court of Pennsylvania
DecidedAugust 26, 2002
StatusPublished
Cited by3 cases

This text of 805 A.2d 691 (Crowe Ex Rel. Crowe v. School District of Pittsburgh) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crowe Ex Rel. Crowe v. School District of Pittsburgh, 805 A.2d 691, 2002 Pa. Commw. LEXIS 664 (Pa. Ct. App. 2002).

Opinions

OPINION BY

Judge LEADBETTER.

The School District of Pittsburgh (District) appeals from an order issued by the Court of Common Pleas of Allegheny County. The order granted a preliminary injunction requiring the District to continue busing service for children attending private half day kindergarten programs. For the reasons that follow, we vacate the order of the Court of Common Pleas.

This dispute arose when the District redesigned its kindergarten services, elimi[693]*693nating all but two of its half day kindergarten programs in favor of day long programs.1 As a result of its program change and new schedule, the District discontinued mid-day bus service for all of its kindergarten students. The District informed non-public school administrators by letter that:

Pittsburgh Public Schools will no longer provide transportation for half-day kindergarten programs in the 2000-2001 school year.
According to Pennsylvania Act 372, we must provide equitable transportation to all City of Pittsburgh residents who attend non-public schools. Since we will no longer transport students to half day programs in Pittsburgh Public Schools, we will not provide half-day transportation to non-public schools.
Of course, your school may continue to offer half-day programs, and we will transport half-day students either to school for your regular start time, or from school at your regular dismissal time. Parents will have to make their own arrangements for mid-day transportation if they choose to enroll their child in a half-day program.

Letter by Theodore R. Yasser III to Nonpublic School Administrators, dated March 31, 2000. The Catholic Diocese of Pittsburgh disagreed with the District’s position, and attempted to persuade the District that it was obligated under Section 1361(1) of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1361(1), to provide mid-day busing. After several further exchanges and failed negotiations Andrew Crowe, Preston Falascino, and Alyssa Hensel filed a suit in equity in the Court of Common Pleas of Allegheny County.

Pursuant to plaintiffs’ complaint, two hearings were held to determine whether plaintiffs should be granted a preliminary injunction.2 At the first hearing, Mrs. Fa-lascino testified that since the District stopped busing, she drives her son approximately twenty minutes to and from a morning kindergarten session, she loses sleeping time, and she has changed her schedule at home. On cross examination, Mrs. Falascino conceded her son has not missed any school because of transportation problems. Mrs. Crowe also testified, stating that since busing stopped she has experienced logistical problems in carpooling various young children to and from school. Mrs. Crowe also conceded that her son has not missed any school because of a lack of transportation.

The parties additionally presented the testimony of Dr. Robert Paserba, Superintendent of Catholic Schools for the Diocese of Pittsburgh and Theodore Vasser III, Director of Transportation for the District. Dr. Paserba testified that the Diocese currently offers three kindergarten programs, with 49 children in the morning program, 20 in the afternoon, and 68 in the full day. Of the children attending half day programs, Dr. Paserba stated that 52 desire mid-day busing. Mr. Vasser testified that the District eliminated mid-day busing throughout the school district, including busing for the two remaining public half-day programs. Based on the foregoing testimony, the trial court granted an emer[694]*694gency preliminary injunction and scheduled a second hearing.

At the second hearing, Mr. Vasser again testified regarding the District’s busing policy, stating that in the 1999/2000 school year the District spent $9,328.00 on midday busing for public schools, compared with $172,800.00 for non-public schools. Plaintiffs presented the testimony of Father Kris Stubna, Secretary of Education for the Diocese of Pittsburgh. Father Stubna testified that at a minimum there are 50 kindergarten students requiring mid-day busing. He qualified that number by indicating that if transportation was available, some students would choose to attend half day programs rather than full day programs. Based on the foregoing the trial court granted a preliminary injunction, requiring the District to bus all non-public school students attending half-day kindergarten programs.

On appeal to this court, the District asserts that plaintiffs failed to meet the standard for the grant of a preliminary injunction, that the trial court erred in interpreting Section 1361(1), and that the trial court erred in ordering the performance of a discretionary act.

We begin by noting the well-established standards applicable to the issuance of a preliminary injunction, and this court’s review of such a decision.

“In order to sustain a preliminary injunction, the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.”
A mandatory injunction which commands the performance of some positive act requires a much stronger case.

Roberts v. Sch. Dist. of Scranton, 462 Pa. 464, 469, 341 A.2d 475 (1975) (quoting Zebra v. Pittsburgh Sch. Dist., 449 Pa. 432, 437, 296 A.2d 748, 750 (1972)).3 Nonetheless,

Although courts are not super school boards and should not interfere with the discretionary exercise of a school board’s power, a mandatory preliminary injunction interfering with that discretion is appropriate where a school board’s action is based on a misconception of the law. This Court must therefore examine the factual and legal bases for the issuance of the preliminary injunction and determine whether there were apparently reasonable grounds for the trial court’s action.

Save Our Sch. v. Colonial Sch. Dist., 156 Pa.Cmwlth. 671, 628 A.2d 1210, 1211-12 (1993) (citation omitted). Finally, any such injunction must be narrowly tailored to address the wrong plead and proven. Anchel v. Shea, 762 A.2d 346, 355 (Pa.Super.2000); Karpieniak v. Lowe, 747 A.2d 928, 931 (Pa.Super.2000).

The District argues that the plaintiffs failed to establish that they would suffer immediate and irreparable harm if an injunction were not issued. If the plaintiffs were required to show personal harm that is actually irreparable in this case, we would agree.

However, as we have repeatedly held, “a violation of an express provision of a statute is per se irreparable harm for purposes of a preliminary injunction.” Pleasant Hills Constr. Co. Inc. v. Pub. [695]*695Auditorium, Auth. of Pittsburgh, 782 A.2d 68, 79 (Pa.Cmwlth.2001),

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chipman v. Avon Grove School District
841 A.2d 1098 (Commonwealth Court of Pennsylvania, 2004)
Crowe Ex Rel. Crowe v. School District of Pittsburgh
805 A.2d 691 (Commonwealth Court of Pennsylvania, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
805 A.2d 691, 2002 Pa. Commw. LEXIS 664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowe-ex-rel-crowe-v-school-district-of-pittsburgh-pacommwct-2002.