Appeal from the Order of the Court of Common Pleas of McKean County in case of In Re: Establishment of Independent School District consisting of the Western Portions of Hamlin and Sergeant Townships, No. 183 February Term, 1974.
Michael P. Baker, with him Woods and Baker, for appellant.
Murray R. Garber, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.
[ 22 Pa. Commw. Page 456]
On February 15, 1974, a group of citizens, identifying themselves as a "majority of the taxable inhabitants" of the western portions of Hamlin and Sergeant Townships in McKean County, filed a petition with that County's court of common pleas. Petitioners sought the establishment of an independent school district to be comprised
[ 22 Pa. Commw. Page 457]
of the territory of their residences, for the sole purpose of transferring that territory from the Smethport Area School District to the Kane Area School District. Section 242.1 of the Public School Code of 1949, Act of March 10, 1949, added by the Act of June 23, 1965, P.L. 139, as amended, 24 P.S. § 2-242.1.
Respondent, Smethport Area School District, answered the petition and, as "new matter," alleged that the granting of the petition would adversely affect the educational development of the students remaining within respondent's territory. The common pleas court conducted a hearing. At the close of petitioners' case, the court entertained respondent's motion to dismiss, which motion was based upon the alleged inadequacy of petitioners' evidence to warrant the relief sought. The court's order of November 30, 1974, granting the motion, precipitated the instant appeal.
In an opinion supporting its order of dismissal, the lower court, quoting from an opinion in another case,*fn1 concluded that, as no attack had been made against the educational program of the Smethport Area School District and only distance of travel of pupils was involved, this was insufficient "to call upon the Court to exercise its power to allow withdrawal." It independently concluded that the action of the Secretary of Education in having approved the transfer from an educational standpoint -- a requirement contained in Section 242.1 -- was "ill founded and qualified," and hence, not meeting the requirements of the statute.
Petitioners assert in this appeal that the lower court erred in concluding that the Secretary's approval was insufficient as an approval of the transfer under the statute, and in further concluding that the evidence of petitioners was insufficient to support the prayer of the petition.
[ 22 Pa. Commw. Page 458]
Although not specifically expressed by petitioners, this appeal postures the respective roles of the court and the educational authorities with respect to the post-1963 amendments to the Public School Code of 1949,*fn2 on the subject of the creation of an independent school ...