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HomeMy WebLinkAbout99-6576 equityCONSTANCE C. WEBB, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WEST SHORE SCHOOL DISTRICT, DEFENDANT IN RE: 99-6576 EQUITY TERM PETITION FOR PRELIMINARY INJUNCTION BEFORE BAYLEY, J. OPINION Bayley, J., November 5, 1999:- Stephanie Frye, age 14, born November 19, 1981, is the daughter of Elaine Boyd and Paul Frye. The parents who lived together, never married and separated some time ago, have two sons who are younger than Stephanie. Petitioner, Constance C. Webb, the maternal grandmother of Stephanie, lives at 1191 Letchworth Road, Camp Hill, Pennsylvania. That residence is within the West Shore School District. Stephanie has lived with her maternal grandmother since October 7, 1999. Before then she lived with her mother and brothers in New Cumberland. New Cumberland is in the West Shore School District. Stephanie commenced this school year in the ninth grade at Cedar Cliff in the West Shore School District. Before that she had gone to a middle school in New Cumberland which is in the West Shore School District. Near the beginning of October, 1999, Elaine Boyd was displaced from her residence in New Cumberland. The Cumberland County Children and Youth Service Agency became involved as to the adequacy of her care for her children. In a private 99-6575 EQUITY TERM arrangement, Boyd agreed to transfer legal and physical custody of Stephanie to Stephanie's maternal grandmother which custody the grandmother accepted. The mother later relocated to Dallastown, York County, with her two sons. Dallastown is outside of the city of York and is in the Dallastown School District. The mother and Constance C. Webb entered into a written stipulation, that was joined by Stephanie's father, that is the basis for a custody order entered by consent in this court on October 18, 1999, granting legal and physical custody of Stephanie to Constance C. Webb. Webb works for the Federal Government and Stephanie is now insured under her employer's medical coverage plan. The father had been paying the mother support for their three children but the grandmother is not receiving any of that money, nor is she receiving any money for the support of Stephanie from the mother. After obtaining affidavits from Constance C. Webb and Elaine Boyd, the administration of the West Shore School District excluded Stephanie from school on the basis that she no longer met the residency requirement in Section 13-1302 of the Public School Code of 1949, as amended, 24 P.S. Section 1-101 et seq. Her last day of school was on October 15, 1999. Constance C. Webb filed a complaint in equity seeking Stephanie's reinstatement into the ninth grade at Cedar Cliff. Ancillary to that complaint she filed a petition for a preliminary injunction upon which a hearing was conducted on November 3, 1999. Following the hearing this order was entered: AND NOW, this 3rd day of November, 1999, following a hearing, the petition of plaintiff for a preliminary injunction, IS GRANTED. Defendant, West Shore School District, is prohibited from excluding Stephanie A. -2- 99-6575 EQUITY TERM Frye as a student in the West Shore School District on the basis of residency pending a final resolution of this case. Pursuant to Pa. Rule of Civil Procedure 1531(b)(2) plaintiff shall deposit $1.00 with the Prothonotary upon the conditions set forth in Rule 1531 (b)(1). The Public School Code provides in pertinent part: Section 13-1301. Age limits; temporary residence Every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years, may attend the public schools in his district, subject to the provisions of this act. The board of school directors of any school district may admit to the schools of the district, with or without the payment of tuition, any non-resident child temporarily residing in the district, and may require the attendance of such non-resident child in the same manner and on the same conditions as it requires the attendance of a resident child. (Emphasis added.) Section 13-1302. Residence and right to free school privileges A child shall be considered a resident of the school district in which his parents or the guardian of his person resides. Federal installations are considered a part of the school district or districts in which they are situate and the children residing on such installations shall be counted as resident pupils of the school district. When a resident of any school district keeps in his home a child of school age, not his own, supporting the child gratis as if it were his own, such child shall be entitled to all free school privileges accorded to resident school children of the district, including the right to attend the public high school maintained in such district or in other districts in the same manner as though such child were in fact a resident school child of the district, and shall be subject to all the requirements placed upon resident school children of the district. Before such child may be accepted as a pupil, such resident shall file with the secretary of the board appropriate legal documentation to show dependency or guardianship or a sworn statement that he is a resident of the district, that he is supporting the child gratis, that he will assume all personal obligations for the child relative to school requirements, and that he intends to so keep and support the child continuously and not merely through the school term. (Emphasis added.) -3- 99-6575 EQUITY TERM Based on the testimony of Constance C. Webb, whom we find credible, and all of the other testimony and evidence submitted at the hearing in this court, we find as facts that petitioner (1) lives in the West Shore School District with Stephanie Frye, (2) has legal and physical custody of Stephanie, (3) is supporting Stephanie gratis as if she were her own, (4) has assumed all personal obligations for Stephanie relative to school requirements, and (5) intends to keep Stephanie and support her continuously and not merely through the school term. Accordingly, Stephanie is entitled to free school privileges in the West Shore School District. In T. W. Phillips Gas & Oil Co. v. People's Natural Gas Co., 89 Pa. Commw. 377 (1985), the Commonwealth Court set forth the well-established standards necessary for the issuance of a preliminary injunction: (1) the relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) greater injury will occur from refusing the injunction than from granting it; (3) the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) the plaintiff's right to relief is clear. (Citations omitted.) As to the last standard, the Supreme Court of Pennsylvania stated in Shenango Valley Osteopathic Hospital v. Department of Health, 499 Pa. 39 (1982), that plaintiff must be likely to prevail on the merits. Stated another way by the Commonwealth Court in Franklin Land Company v. Borough of Fox Chapel, 32 Pa. Commw. 478 (1977), plaintiff must establish the prospect of securing a permanent injunction is good. -4- 99-6575 EQUITY TERM Stephanie has not been to school since October 15, 1999. Petitioner has met all of the requirements for the issuance of a preliminary injunction. Accordingly, the preliminary injunction that was granted following the hearing on November 3, 1999, was appropriately entered. (DATE) John W. Purcell, Jr., Esquire For Plaintiff Joanne D. Sommer, Esquire For Defendant Edgar B. Bayley, J. :saa -5-