Moss v. School District of Norristown

• Decision Date: 03 February 1966
• Docket Number: Civ. A. No. 32153.
• Citation: 250 F. Supp. 917
• Parties: Edgar E. MOSS, 2nd, Guardian of the Estate of Martha E. Colwell, a minor v. SCHOOL DISTRICT OF NORRISTOWN, Lower Providence Township School District, Lower Providence-Worchester Joint School District, George Romano and Fiorre Romano, partners trading as Romano Bros. School Bus.
• Court: U.S. District Court — Eastern District of Pennsylvania

250 F. Supp. 917

Edgar E. MOSS, 2nd, Guardian of the Estate of Martha E. Colwell, a minor v. SCHOOL DISTRICT OF NORRISTOWN, Lower Providence Township School District, Lower Providence-Worchester Joint School District, George Romano and Fiorre Romano, partners trading as Romano Bros. School Bus.

Civ. A. No. 32153.

United States District Court E. D. Pennsylvania.

February 3, 1966.

Marvin Katz, Specter & Katz, Philadelphia, Pa., for plaintiff.

Joseph H. Foster, White & Williams, Philadelphia, Pa., for defendant School Districts.

LUONGO, District Judge.

This suit by the guardian of a minor against three School Districts and against the operator of a school bus service seeks to recover for personal injuries to the minor from an assault and battery upon her after she disembarked from a school bus. The defendant School Districts have moved for summary judgment on the ground of governmental immunity. Earlier in these proceedings the School Districts sought judgment on the pleadings, asserting the same defense of governmental immunity. Judgment was then refused¹ because it could not be determined from the pleadings whether, in furnishing transportation for the minor plaintiff to and from school, the School District defendants were performing a governmental function, and because the pleadings did not rule out the possibility of a right of action based on breach of contract, a claim as to which the defense of governmental immunity would not be available. The court refused judgment on the pleadings, but without prejudice to the right of the School District defendants to move for summary judgment when matters not incorporated in the pleadings were made part of the record. The deficiencies which existed in the record at the time of the motion for judgment on the pleadings have now been cured and the School District defendants' motion for summary judgment will be granted.

In resisting this motion, plaintiff advances four arguments for the contention that the defense of governmental immunity is not applicable here.

(a) The School District defendants were not performing a governmental function.

(b) Plaintiff has (or may have) a right of action based on breach of contract.

(c) The conduct here complained of constituted a nuisance.

(d) The members of the School Districts failed to carry out duties imposed upon them by statute.

None of these grounds warrants withholding the grant of summary judgment.

(a) Governmental Function.

At the time of the motion for judgment on the pleadings, there was nothing before the court concerning the circumstances under which and the reasons why the defendant School Districts were furnishing transportation to the minor plaintiff. It has now been established, by affidavit and by deposition, that the minor plaintiff resided in Lower Providence Township, a school district of the third class; that Worchester Township was a fourth class school district; that prior to October 1960 Lower Providence and Worchester Townships had combined to form a joint school system; that there was no school at the junior high level available to the minor plaintiff in Lower Providence or within two miles of her residence; that at the time of the occurrence minor plaintiff was attending junior high school classes in the Norristown School District, with the cost of the tuition as well as transportation to and from school being borne by Lower Providence Township. That arrangement was made pursuant to Pa.Stat.Ann. tit. 24, § 13-1331 which provides:

"§ 13-1331. Free transportation or board and lodging

In case there is no public school with the proper grades in session within two miles by the shortest public highway of the residence of any child in a school district of the fourth class, or in a township which is a school district of the third class, or in a borough which has a population of less than five hundred (500) inhabitants to the square mile and which is a school district of the third class, such child shall be furnished proper transportation at the expense of the school district to and from a school with the proper grades. When it is not feasible to provide such transportation, the board of school directors may, in lieu thereof with the approval of the Department of Public Instruction, pay for suitable board and lodging for any such child." (Footnotes omitted.)

From the foregoing it is clear beyond question that in furnishing transportation to the minor plaintiff, the defendant School Districts were carrying out a duty under legislative mandate and that they were performing a governmental function for which they were entitled to immunity from liability for negligence of servants, agents and employees. Shields v. Pittsburgh School Dist., 408 Pa. 388, 184 A.2d 240 (1962); Supler v. North Franklin Township School Dist., 407 Pa. 657, 182 A.2d 535 (1962); Kesman v. Fallowfield Township School Dist., 345 Pa. 457, 29 A.2d 17 (1942); Goldstein v. Philadelphia School Dist., 329 Pa. 71, 196 A. 863 (1938). And see: Stouffer v. Morrison, 400 Pa. 497, 162 A.2d 378 (1960); Anderson v. City of Philadelphia, 380 Pa. 528, 112 A.2d 92 (1955).

I find it hard to understand plaintiff's citation of Landerman v. Churchill Area School Dist., 414 Pa. 530, 200 A.2d 867 (1964) as authority that the furnishing of transportation is not required. That suit involved a section of the School Code² under which the furnishing of transportation was discretionary whereas under Pa.Stat.Ann. tit. 24, § 13-1331 here involved, it was mandatory. Equally puzzling is plaintiff's reliance on Morris v. Mount Lebanon Township School Dist., 393 Pa. 633, 144 A.2d 737 (1958) against defendant School Districts' governmental immunity claim. Of course, the governmental immunity defense is not available for a proprietary function. That is what was involved in Morris in which the injury was sustained during the operation of a summer day camp, not required by statute, attendance at which was open to the general public and for which a fee was charged.

(b) Cause of action based on breach of contract.

In successfully resisting the motion for judgment on the pleadings, plaintiff contended that the contract between the School Districts and the bus operator might well afford the basis for a cause of action for breach of contract with the minor plaintiff as a third-party beneficiary. Since no copy was attached to the pleadings, the contract was not then before the court. Now, through answers to plaintiff's interrogatories, a copy of the agreement between Lower Providence-Worchester Joint School System and Romano Brothers has been made part of the record. Although he has had almost a year to study it, plaintiff has pointed to no provision in that contract evidencing an intention on the part of the contracting parties to confer thirdparty beneficiary rights upon the minor plaintiff. The court has independently examined the terms of that contract and finds none. In that respect the contract here is unlike that in Thompson v. Harry C. Erb, Inc., 240 F.2d 452, 453 (3d Cir. 1957) where the contract obligated the contractor to pay damages to persons injured "`irrespective of whether or not such injuries or damage be due to negligence or to the inherent nature of the work.'" And Brinton v. School Dist. of Shenango Township, 81 Pa.Super. 450 (1923) relied on by plaintiff, is of no help. All that case holds is that a state agency or instrumentality may be liable for breach of contract. Here, of course, there is no contract between plaintiff or minor plaintiff and School Districts, consequently there is no basis for a direct breach of contract claim, nor has plaintiff been able to point to any contract between School Districts and others conferring third-party beneficiary rights upon plaintiff or minor plaintiff.

Apparently realizing that the contract between School Districts and the bus operator affords him no ground for relief, plaintiff now asks the court to withhold the grant of summary judgment because he might be able, through discovery, to come up with something on which to base a breach of contract claim. He has not suggested the source from which such contract might be discovered, or who the contracting parties might be, or in what manner such contract might afford to plaintiff the basis for a claim of breach of contract. The incident complained of here occurred more than five years ago, on October 27, 1960. Suit was instituted October 5, 1962, more than three years ago. Plaintiff has had full opportunity during all that time to discover all relevant contracts. The only contract which has been discovered to date does plaintiff no good and he has given me no cause to believe that further discovery will likely unearth any which would. To withhold action at this late date on such speculation and conjecture would be unwarranted.

(c) Nuisance.

In a further effort to get over or around the hurdle of governmental immunity, plaintiff asserts that governmental immunity is not a defense to a claim for damages arising from nuisance. In that aspect of his argument, plaintiff asks that I withhold action on the motion for summary judgment until he has had full opportunity, by discovery, to demonstrate a course of conduct constituting a...