May 16, 1977
COMMONWEALTH OF PENNSYLVANIA BY ROBERT N. HENDERSHOT, ACTING SECRETARY OF EDUCATION AND ROBERT P. KANE, ATTORNEY GENERAL, PETITIONERS
MIFFLIN COUNTY SCHOOL BOARD, HAROLD L. DUNMORE, PRESIDENT, MIFFLIN COUNTY SCHOOL BOARD, RESPONDENTS
30 Pa. Commw. 213.
Opinion by Judge Kramer.
[ 30 Pa. Commw. Page 215]
This is an action in mandamus in the original jurisdiction of this Court by which the Commonwealth of Pennsylvania (Commonwealth) seeks to compel the Mifflin County School Board (Board) to amend its calendar for the 1976-77 school year to make up 19 days lost due to a teachers' strike. On April 22, 1977, this Court issued an order denying the Commonwealth's motion for a peremptory judgment. The purpose of this opinion is to explain and support that order.
On May 18, 1976, the Board adopted a school calendar for the 1976-77 school year under which instruction was to commence on September 3, 1976, to end on June 3, 1977, and which provided for exactly 180 days of instruction. During November and December of 1976, a professional employees' strike resulted in the loss of 19 days of instruction. An additional three days were lost due to the natural gas shortage which occurred in early 1977. Presently, there are 19 days, all subsequent to June 3, which remain available for make-up before the statutorily
[ 30 Pa. Commw. Page 216]
mandated end of the school year on June 30, 1977.*fn1 If all 19 days are used, the Mifflin school year will consist of 177 days of instruction.
The Commonwealth contends that the Board has a mandatory duty to provide as close to 180 days of instruction as is possible before the statutory end of the school year under Section 1501 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 15-1501. Section 1501 provides in pertinent part:
All public kindergartens, elementary and secondary schools shall be kept open each school year for at least one hundred eighty (180) days of instruction for pupils.
The Commonwealth further asserts that all doubts as to its right to relief in mandamus in cases seeking compliance with the "180 day rule" were removed by the decision in Pittenger v. Union Area School Board, 24 Pa. Commonwealth Ct. 442, 356 A.2d 866 (1976). Thus, it argues that peremptory judgment is proper and should be granted.
The Board, on the other hand, asserts that it is under the duty to amend its schedule to make up only as many of the lost days as sound educational practice would indicate. It relies primarily on the decision in Root v. Northern Cambria School District, 10 Pa. Commonwealth Ct. 174, 309 A.2d 175 (1973). In its pleadings the Board makes numerous allegations which run to the issue of what is sound educational practice under the circumstances of this case. For example, it is alleged that extending the school year beyond the originally scheduled ending date of June 3 would: (1) interfere with or frustrate job plans and further educational plans of many students; (2) upset family vacation plans; (3) interfere with the performance
[ 30 Pa. Commw. Page 217]
of farming duties of many students; (4) conflict with Bible schooling held in the month of June; (5) cause the loss of such summer programs as those in music and driver education; (6) create a substantial risk of student unrest and disciplinary problems; (7) be of little or no incremental educational value; and (8) result in sparse attendance.
If the Commonwealth's position that Union Area, supra, makes these allegations irrelevant is correct, the peremptory judgment would be proper. But if the principles announced in Root, supra, are applicable, then these allegations raise material issues of fact which, of course, render peremptory judgment improper.*fn2
In order to resolve the dilemma, it is necessary to review briefly Root, Union Area, and a third case, Commonwealth v. Leechburg Area School District, 19 Pa. Commonwealth Ct. 140, 339 A.2d 149 (1975). All three of these cases were heard by the Commonwealth Court sitting en banc.
Root involved an action in equity to compel a school board to reschedule 30 days lost due to a teachers' strike. The lower court dismissed. In a 5-2 decision, the majority affirmed, holding that Section 1501 of the Code does not require a school board to reschedule lost days if this is impossible or impractical; the board must amend its schedule to make up as many
[ 30 Pa. Commw. Page 218]
days as sound educational practice would indicate. 10 Pa. Commonwealth Ct. at 180, 309 A.2d at 178. The lower court had not abused its discretion in dismissing the case.
Leechburg involved an action in mandamus in the Commonwealth Court's original jurisdiction by which the Commonwealth sought to compel a school board to make up four days lost due to a teachers' strike by adding them onto the end of the regularly scheduled school year. The Commonwealth moved for summary judgment. Following Root, the Court, in another 5-2 decision, denied the motion because it could not determine from the pleadings whether the rescheduling of the four days at the end of the originally scheduled school year would be with or without adverse ramifications from the educational viewpoint.
Finally, Union Area was another mandamus action in the Court's original jurisdiction which sought to compel a school board to make up five days lost due to a teachers' strike. Evidence adduced at the hearing showed that after the strike ended on September 10, 1975, there were sufficient available holidays so that all five days could be rescheduled without extending the school year beyond its slated June 10 ending date. The school superintendent had so recommended, but the school board rejected his proposal. The board's only defense to the plaintiff's action was the argument that rescheduling the lost days would result in unlawfully compensating teachers for days when they were engaged in a strike.*fn3
[ 30 Pa. Commw. Page 219]
By a 6-0 decision the Court granted the requested relief (Kramer, J., did not participate). However, as to the rationale for this result, the Court divided evenly. Judge Mencer's opinion, joined by President Judge Bowman and Judge Crumlish, concluded that mandamus was the proper action under the facts of the case and that the plaintiffs had established their right to the relief sought. Moreover, the opinion stated, "[W]e are of the view that Root can be fairly distinguished from the instant case. However . . . if there is any inherent conflict between our holding in Root and today's decision, our holding here prevails and any inconsistent portions of Root are overruled." 24 Pa. Commonwealth Ct. at 448, 356 A.2d at 869.
However, Judge Wilkinson's concurring opinion, joined by Judges Rogers and Blatt, stated the following:
I concur in the result reached by the majority, but in doing so, I do not denigrate or minimize our decision in Root v. North Cambria School District, 10 Pa. Commonwealth Ct. 174, 309 A.2d 175 (1973). I continue to be of the opinion that it is within the discretion of the school board as to whether the school calendar should be altered to make up the days missed. However, in this instance, the Board has abused its discretion. In my opinion, under the facts presented here, the Board is under a clear duty to modify the previously established calendar. In this regard, it is not only unnecessary to distinguish Root, much less overrule it, but, indeed, this decision is in entire accord. (Footnote omitted.)
24 Pa. Commonwealth Ct. at 449, 356 A.2d at 870.
If the principle set forth in Root and Leechburg remains viable after Union Area, the Court is of the opinion that the present case is controlled by the decision
[ 30 Pa. Commw. Page 220]
and opinion in Leechburg and that the Commonwealth's motion for peremptory judgment must be denied. As in Leechburg, and unlike Union Area, the Board could not make up the lost days within the time-frame of the originally scheduled school year. As in Root and Leechburg, and unlike Union Area, the Board has by numerous allegations raised the possibility that rescheduling the lost days would be dysfunctional from the educational viewpoint. In sum, as between Union Area on one hand and Root and Leechburg on the other, the Court concludes that the allegations in the present case bring it within the principles of the latter.
The key question remaining for resolution is whether and to what extent Union Area has overruled Root and, by implication Leechburg. The posture of Union Area forces the Court to conclude that Root and Leechburg remain undisturbed by Union Area, despite statements to the contrary in Judge Mencer's opinion. As noted previously, only three of the six participating Judges were of the opinion that Root had to be overruled insofar as it was inconsistent with the result reached in Union Area. The other three participating Judges were of the view that the result reached was wholly in accord with the principles set forth in the opinion in Root. Because less than a majority of the participating judges voted for the opinion announcing the judgment of the Court, the opinion is not decisional on the disputed points. Commonwealth v. Lasch, 464 Pa. 259, 263, 346 A.2d 547, 549 (1975); Commonwealth v. Davenport, 462 Pa. 543, 559 n. 3, 342 A.2d 67, 75 n. 3 (1975); Commonwealth v. Silverman, 442 Pa. 211, 218 n. 8, 275 A.2d 308, 312 n. 8 (1971). Thus, Root and Leechburg remain undisturbed as precedent in cases under Section 1501 of the Code. Under those decisions, where the pleadings raise questions of fact as to the educational soundness
[ 30 Pa. Commw. Page 221]
of rescheduling lost days, such questions are material. Such material questions of fact are raised by the pleadings in the present case and these require the denial of the Commonwealth's motion for peremptory judgment, as was done in the order of this Court on April 22, 1977.
In concluding, we note that the Board has yet to prove at trial its allegations relating to the adverse educational impact of rescheduling the 19 lost days. Nothing in this opinion is to be taken as indicating any view of this Court on the merits of the Board's contentions on that subject.