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decided: September 4, 1975.


Original jurisdiction in case of Pennsylvania Parent Assistance Authority v. Grace Sloan, Treasurer of the Commonwealth of Pennsylvania.


Joseph J. Carlin, for plaintiff.

J. Justin Blewitt, Jr., Deputy Attorney General, for defendant.

Judge Rogers. Memorandum Opinion and Order by Judge Rogers.

Author: Rogers

[ 21 Pa. Commw. Page 155]

The Parent Reimbursement Act for Nonpublic Education Act of August 27, 1971, P.L. 358, 24 P.S. § 5701, provided that 23 per cent of the revenue collected by the State from taxes on cigarettes should be paid into the State Treasury to the credit of a fund to be known as the Parent Reimbursement Fund and appropriated to a body called the Pennsylvania Parent Assistance Authority. This body of five persons appointed by the Governor was given the responsibility for the administration of the program created by the Act. That program was simply the receipt by the Parent Assistance Authority of statements from parents that their children had completed a school year in a nonpublic school and paying such parents $75 for each child attending elementary school and $150 for each child attending secondary school. The first year which could be completed by any child would of course be that commencing in about September 1971 and ending in about June of 1972.

The Act's constitutionality was promptly contested by taxpayers in the United States District Court for the Eastern District of Pennsylvania and, on July 21, 1972, a three-judge District Court upon finding that more than 90% of the children attending nonpublic schools in Pennsylvania were enrolled in religion-related schools, entered judgment for the plaintiffs and perpetually enjoined the State Treasurer from paying any funds of the Commonwealth pursuant to the Act to parents of children attending nonpublic schools. The Supreme Court of the United States affirmed, holding that the Act violated the mandate of the First Amendment against the sponsorship or

[ 21 Pa. Commw. Page 156]

    financial support of religion or religious institutions. Sloan v. Lemon, 413 U.S. 825 (1973). No payments to parents for the 1971-1972 school year had been made at the time the injunction was entered and, of course, none have since been made. We are told that the Parent Reimbursement Fund contained $150,000,000. We are not told whether this money has in fact been transferred to the General Fund as required by the Act No. 18 approved June 28, 1975, hereinafter discussed.

John F. and Rosemary Kennedy, James R. and Monica Melinson and Richard J. and Toni Braemer, parents of children who attended nonpublic schools during the 1971-72 and 1972-73 school years, on their own, and on behalf of other parents similarly situated, commenced an action in this Court to No. 199 C.D. 1975 against the Authority claiming reimbursement for the tuition paid during those school years. The State Treasurer took the position that the three-judge District Court order of July 12, 1972 affirmed by the U.S. Supreme Court precluded the relief sought. By agreement of the parties we stayed that proceeding pending disposition of a petition for declaratory relief seeking modification of the July 21, 1972 order to be filed in the District Court. A joint petition was filed by the parents and the State Treasurer. The position taken therein was that the District Court's order of July 12, 1972 precluded the relief sought in the Commonwealth Court action and that the District Court should consider modifying its order so as to allow payments of tuition for the two school years (1971-72, 1972-73) before the U.S. Supreme Court decision handed down June 25, 1973 because the parents had relied on the validity of the Act in sending their children to nonpublic schools during those years. On July 21, 1975, the three-judge Court which had issued the order of July 21, 1972 denied relief, declaring itself satisfied "that our final order of July 21, 1972 is clear on its face and binding upon the parties and that its meaning and effect would not be made clearer by

[ 21 Pa. Commw. Page 157]

    further explanation," and its belief "that the Supreme Court's affirmance of our final order makes any substantive modification of it inappropriate." We are told that this order has ...

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