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JOHN C. PITTENGER v. UNION AREA SCHOOL BOARD (05/11/76)

decided: May 11, 1976.

JOHN C. PITTENGER, SECRETARY OF EDUCATION, AND ROBERT P. KANE, ATTORNEY GENERAL, PLAINTIFFS
v.
UNION AREA SCHOOL BOARD, DEFENDANT



Original jurisdiction in case of Commonwealth of Pennsylvania by John C. Pittenger, Secretary of Education, and Robert P. Kane, Attorney General, Plaintiff v. Union Area School Board, Defendant.

COUNSEL

William J. Atkinson, Deputy Attorney General, with him Howard M. Levinson, Deputy Attorney General, Vincent X. Yakowicz, Solicitor General, and Robert P. Kane, Attorney General, for plaintiff.

Walter A. Kieler, for defendant.

Anthony D. Newman, for amicus curiae, Pennsylvania State Education Association.

William Fearen, with him Cleckner and Fearen, for amicus curiae, Pennsylvania School Boards Association.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Mencer. Concurring Opinion by Judge Wilkinson. Judges Rogers and Blatt join in this concurring opinion.

Author: Mencer

[ 24 Pa. Commw. Page 444]

We are confronted here with the question of whether the Union Area School Board (Board) has the duty to modify its existing school calendar to reschedule 5 pupil-instruction days lost during a strike of school employees. Following argument on March 3, 1976, we entered an order on March 8, 1976, directing the Board to make such a modification to insure that 180 days of instruction for pupils will be provided before the end of the 1975-76 school year. This opinion is filed in support of that order.

The background facts of this action are not in dispute. On February 19, 1975, the Board adopted a school calendar for the school year 1975-76 which provided for classes to commence on September 3, 1975 and to terminate on June 10, 1976. This school calendar provided 180 days of instruction for pupils. A lawful strike by the professional employees of the Union Area School District closed the schools during the period of September 3, 1975 through September 10, 1975.*fn1

By letter of September 30, 1975, plaintiff Pittenger's authorized agent, Frank S. Manchester, Commissioner

[ 24 Pa. Commw. Page 445]

    for Basic Education, requested a letter of assurance from the Superintendent of the Union Area School District, Paul L. Rowland, Jr., that the school district would provide its pupils with 180 days of instruction for the 1975-76 school year. On October 15, 1975, Superintendent Rowland presented a modified school calendar to the members of the Board. This modified calendar provided for rescheduling the 5 days during which the school was closed because of the teachers' strike. On October 22, 1975, the Board voted unanimously to notify the Department of Education that it did not intend to change the school calendar adopted on February 19, 1975.

On November 14, 1975, the Secretary of Education and the Attorney General (plaintiffs) of the Commonwealth of Pennsylvania filed in this Court a complaint in mandamus against the Board seeking entry of a judgment and order requiring the Board to modify its calendar for the school year 1975-76 so as to provide 180 days of instruction for pupils. The Board filed an answer to the complaint, and an evidentiary hearing was held on January 28, 1976. As stated at the outset of ...


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