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HOWARD H. v. DR. JACOB WENTZEL (03/21/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 21, 1977.

HOWARD H., APPELLANT
v.
DR. JACOB WENTZEL, ET AL.

Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Howard H., a minor by his parents and next friends, Marlin and Jerene H. v. Dr. Joseph Wentzel, individually and in his official capacity as Superintendent, West Shore School District, and Jon F. Lafaver, individually and in his official capacity as President of the Board of School Directors of the West Shore School District, and M. Jack Smith, individually and in his official capacity as First Vice President of the Board of School Directors of the West Shore School District and Robert F. Duguay, Robert J. Grenoble, Robert E. Hazen, George R. Law, Donald P. Lenker, Jr., Albin W. Simokat, Jean Rowland, individually and in their official capacities as Members of the Board of School Directors of the West Shore School District, No. 41 Equity 1975.

COUNSEL

Janet P. Stotland, with her Irene Solet, Stephen C. Miller, and Steven S. Goldberg, for appellant.

Harold E. Sheely, for appellees.

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

Author: Blatt

[ 29 Pa. Commw. Page 363]

On February 26, 1975, Howard H. (appellant) was a ninth grade student in the Red Land High School of the West Shore School District. On that date, he

[ 29 Pa. Commw. Page 364]

    was suspended from school for the alleged possession and attempted delivery of a small quantity of marijuana. The juvenile probation office in York County was notified of the incident but the complaint was handled informally and no proceedings were instituted. On March 10, 1975, following a hearing by a committee of the District School Board, the appellant was permanently expelled from school pursuant to Section 1318 of the Public School Code of 1949,*fn1 24 P.S. § 13-1318. No appeal was taken from this action.*fn2 The efforts of the appellant's parents to place him in another school district were unsuccessful, however, and, when they finally requested that their son be readmitted to the West Shore School District, they were informed by a letter from the District Supervisor that the expulsion order remained the District's official position.

Howard H. and his parents filed a complaint in equity in the Court of Common Pleas of Cumberland County seeking to enjoin the West Shore School District, its Supervisor and Board of Directors, from failing to provide the appellant with educational services within the District. The complaint alleged that the defendants had wrongfully failed to provide the plaintiff with educational services in violation of 22 Pa. Code § 12.6(h), a regulation duly adopted by the State Board of Education. The lower court denied the request for an injunction, holding that the requirement of readmission set forth in the regulation was beyond the power of the State Board and therefore unenforceable. This appeal followed.

[ 29 Pa. Commw. Page 365]

We have held that the State School Board regulations entitled "Student Rights and Responsibilities" found at 22 Pa. Code §§ 12.1-.15, of which the regulation herein questioned is a part, are invalid for want of statutory authority to support them and therefore unenforceable in Girard School District v. Pittenger, 29 Pa. Commonwealth Ct. 176, 370 A.2d 420 (1977). We must, therefore, affirm the order of the lower court.

Order

And Now, this 21st day of March, 1977, the order of the Court of Common Pleas of Cumberland County dated February 23, 1976 denying the plaintiff's request for an injunction is hereby affirmed.

Disposition

Affirmed.


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