Appeal, No. 63, March T., 1953, from order of Court of Common Pleas of Westmoreland County, Feb. T., 1951, No. 323, in case of School District of the Borough of Irwin v. School District of the Township of North Huntingdon. Order affirmed.
Elder W. Marshall, with him Walter T. McGough and Louis E. Sensenich, for appellant.
Robert W. Smith, with him Smith, Best & Horn, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The basic legal question involved on this appeal is whether a court of quarter sessions has jurisdiction to impose liability upon one school district in favor of another for the tuition of pupils of the first district attending school in the latter during litigation over a municipal annexation ordinance which is the subject of a complaint in the court of quarter sessions.
On February 20, 1948, the borough of Irwin adopted an ordinance annexing to its corporate area adjacent land lying in the township of North Huntingdon. Both the township and the school district of the township at once challenged the annexation ordinance by filing a complaint in he court of quarter sessions of the county as authorized by Section 1010 of The General Borough Act of May 4, 1927, P.L. 519, as amended by The Borough Code of July 10, 1947, P.L. 1621, 53 PS § 12900. The complaint was originally heard by the president judge and an additional law judge of the county who differed in their conclusions with respect to the validity of the ordinance. Each wrote an opinion both of which were filed on August 24, 1948, by the president judge who directed that the matter be heard on September 21st following by all four members of the court sitting en banc. On August 26th the board of directors of the borough school district, by resolution, advised the residents of the territory (which was the subject matter of
the borough's annexation ordinance) to register their children on September 1st for attendance at the borough schools during the succeeding school year. The next day, the township school district, by public notice, sought to advise residents of the territory that their children should continue to attend the township's schools until the question concerning the validity of the annexation ordinance was finally determined. Even so, 67 children of residents of the territory involved in the proposed annexation were registered on September 1st as pupils in the schools of the borough school district.
On January 7, 1949, the court of quarter sessions, composed of the four judges of the county, sitting en banc, entered a decree (one judge dissenting) adjudging the annexation ordinance to be illegal and void. Three days later (January 10th) upon ex parte representations of counsel for the borough school district, the court entered a supplementary amendment of the decree of January 7th which needs be quoted in full as it constitutes the basis of the present controversy:
"And now, to wit; this 10th day of January, 1949, it appearing to the Court that some children, resident in North Huntingdon Township, have been attending the public schools in the Borough of Irwin and some children, resident in the Borough of Irwin, have been attending public schools in North Huntingdon Township pending the decision of this Court in this matter; it further appearing that no definite arrangements have been made between the parents of the respective children and the Boards of School Directors of the Township and Borough as to the payment of tuition or the reimbursement of the respective school districts for the additional expense thus incurred by them, and it further appearing that the welfare of the respective students in the different schools requires that the children remain in the schools and in the classes or grades, which they have been attending since the opening of school year in
September, 1948, until the close of the school year 1948-1949. Now, therefore, after due and careful consideration, it is ordered, adjudged and decreed that the order and decree of this Court made or issued on January 7th, 1949, shall be supplemented and amended by adding thereto the following: that the children and students resident in North Huntingdon Township and the Borough of Irwin attending the public schools of the Township or Borough outside of the School District of their residence shall be permitted to remain in the class or grade, and attend the public schools of the respective school districts which they have been attending since the opening thereof in September, 1948, until the end of the current school year and that their tuition shall be paid by the School District of their residence providing the said children otherwise comply with the rules and regulations of the school in which they are enrolled; the expense of such tuition to be settled and adjusted between the districts at the end of the school year."
Both the borough and the borough school district appealed to the Superior Court from the decree of the court of quarter sessions of January 7, 1949, declaring the annexation ordinance invalid. The township school district filed exceptions to the January 10th amendment of the decree but did not appeal therefrom. The decree of January 7th and the amendment of January 10th were set forth in full in the printed record on the above-mentioned appeals to the Superior Court and attention was called to the amendment, as well as the decree of January 7th, by the appellants in their history of the case. On July 15, 1949, the Superior Court, in a unanimous opinion, affirmed the decree of January 7th: see Irwin Borough Annexation case (No. 1), 165 Pa. Superior Ct. 119, 67 A.2d 757. Thereafter, the borough school district, in reliance upon the provision contained in the January 10th amendment, billed the township school district from time to time for the tuition of the
township pupils who had attended the borough schools in the school year 1948-1949. The township school district refused to pay.
As a consequence, the borough school district filed a petition in the court of common pleas of the county on January 16, 1951, whereon the court granted a rule on the township school district to show cause why a judgment should not be entered against it in favor of the borough school district "in the sum of $8,662.95, with interest thereon from October 13, 1949, in accordance with said Decree of the Court of Quarter Sessions entered January 10, 1949...." The township school district filed an answer in the nature of a demurrer raising questions of law, and argument was thereafter had on the petition and answer. On September 17, 1951, the court discharged the rule by an order to which the borough school district filed exceptions. After argument before the court en banc, the exceptions were dismissed (one judge again dissenting) in a final order from which the borough school district took this appeal.
In disposing of the petition's contentions, the learned court below held (1) that the court of quarter sessions did not have jurisdiction, in connection with the litigation over the annexation ordinance, to adjudicate liability on the part of the township school district for the tuition of the children of its residents attending school in the borough district during the litigation, (2) that the amendment of January 10, 1949, purporting to impose liability upon the township school district for the tuition of its children attending school in the borough school district was interlocutory at best and, consequently, did not render the amendment of January 10th res judicata upon the Superior Court's affirmance of the decree of ...