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NATHAN O'LEARY v. JAMES WISECUP (10/13/76)

decided: October 13, 1976.

NATHAN O'LEARY, A MINOR BY JAMES O'LEARY, HIS GUARDIAN, APPELLANT
v.
JAMES WISECUP, INDIVIDUALLY AND AS SUPERINTENDENT OF THE PENN HILLS SCHOOL DISTRICT, JOHN D. BESWICK, INDIVIDUALLY AND AS PRESIDENT OF THE PENN HILLS SCHOOL BOARD, PENN HILLS SCHOOL DISTRICT, APPELLEES. (2 CASES)



Appeals from the Orders of the Court of Common Pleas of Allegheny County in case of Nathan O'Leary, a minor by James O'Leary, his guardian v. James Wisecup, individually and as Superintendent of the Penn Hills School District, John D. Beswick, individually and as President of the Penn Hills School Board, Penn Hills School District, No. G.D. 75-26625.

COUNSEL

Judd F. Crosby, for appellant.

John M. Tighe, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 26 Pa. Commw. Page 539]

Nathan O'Leary (appellant) filed two appeals, consolidated herein, from two orders of the Court of Common Pleas of Allegheny County which refused to grant his request for a preliminary injunction and dismissed his complaint in equity.*fn1

The undisputed facts are that Nathan O'Leary entered a kindergarten in the Wilkinsburg School District (Wilkinsburg) in September of 1975, having been born on October 12, 1970 and so meeting the

[ 26 Pa. Commw. Page 540]

    age requirement for admission to that school in that district. In November of 1975, the O'Leary family moved into the Penn Hills School District (Penn Hills), which required that children be five years old in order to enter kindergarten in September of any particular year. Because Nathan would not have been old enough to have entered its kindergarten in September of 1975, therefore, the District refused to enroll him as a transfer student in November. At that time, of course, he actually was five years old, his fifth birthday having occurred after his admission in Wilkinsburg but before admission was requested at Penn Hills.*fn2

The issue here is whether or not the court below, which denied the preliminary injunction and dismissed the complaint, committed any errors of law. We do not believe that it did.

The appellant presents three grounds upon which we are urged to reverse the lower court: (1) that the Penn Hills' action violated the appellant's rights as guaranteed by the Fourteenth Amendment to the United States Constitution; (2) that the Penn Hills' action violated the Public School Code of 1949*fn3 (Code) and the rules and regulations promulgated thereunder; and (3) that the action of Penn Hills constituted an abuse of discretion. Our scope of review of actions of a school district, acting through its board of school directors, of course, is limited to a determination of whether or not constitutional rights were violated and whether or not an error of law or an abuse of discretion

[ 26 Pa. Commw. Page 541]

    was committed. English v. North East Board of Education, 22 Pa. Commonwealth Ct. 240, 348 A.2d 494 (1975). We have considered the appellant's arguments and must conclude that Penn Hills: (1) has not violated any rights of Nathan O'Leary which are protected by the Fourteenth Amendment to the Constitution of the United States; (2) has not violated the Public ...


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