No. 51 May Term, 1977, Appeal from Order of Commonwealth Court at No. 1202 C.D. 1975, Affirming Adjudication of Pennsylvania Higher Education Assistance Agency
James H. Stewart, Jr., Harrisburg, for appellants.
John D. Killian, Robert W. Barton, Harrisburg, for appellee.
G. Thomas Miller, David B. Disney, Harrisburg, for intervening appellee.
Eagen, O'Brien, Pomeroy, Roberts, Nix, Manderino and Packel, JJ. Eagen, C. J., filed an opinion in support of affirmance in which O'Brien, J., joined. Manderino, J., filed an opinion in support of reversal in which Roberts, J., joined. Pomeroy, J., did not participate in the decision of this case. Nix, J., and Packel, former J., did not participate in the consideration or decision of this case.
The Court being equally divided, the order of the Commonwealth Court is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
The Institutional Assistance Grants Act (IAGA)*fn1 enables an "eligible institution," as defined therein, to receive a grant of up to $400 for each attending student who receives a Pennsylvania State Scholarship and authorizes the Pennsylvania Higher Education Assistance Agency (PHEAA) to determine which institutions are eligible. Section 3 of the IAGA provides the applicable definition:
"'Eligible institution' shall mean an independent institution of higher education located in and chartered by, the Commonwealth, which is neither a state-owned institution, State-related institution nor a community college, which is operated not for profit, which is determined by the agency not to be a theological seminary or school of theology or a sectarian and denominational institution and which is approved by the agency for assistance grants pursuant to the provisions of this act."
24 P.S. § 5183 (Supp.1977-78).
Interpreting this statutory definition, the PHEAA administrator determined that the nursing schools operated by appellant hospitals were ineligible for IAGA assistance and notified them as follows:
"Act 174 defines 'eligible institution' as one which is 'independent.' After review of the Eligibility Determination Survey, the Agency has determined that your institution of higher education is not independently incorporated, since the hospital rather than the educational institution is incorporated and the operations of the educational institution are governed by the board of trustees of the hospital (or medical center, health center, or association) with which the school of nursing is affiliated."
Appeals from these determinations were taken to the PHEAA Board of Directors, and testimony was taken before an independent hearing examiner. The record was augmented by counsel's stipulations of fact and by documents deemed relevant to the legislative history of the IAGA and the administrative determinations of ineligibility. The examiner recommended to the Board that the nursing schools be determined eligible, and PHEAA counsel submitted alternative findings of fact and conclusions of law. Before the Board rendered its decision, the Pennsylvania Association of Colleges and Universities (PACU) sought and received permission to intervene as a party on behalf of those of its members which would be affected by the Board's decision. On July 31, 1975, the Board found the nursing schools in question ineligible for IAGA grants on the ground that they were not independent institutions of higher education.
Timely appeals from the Board's adjudication were then taken to the Commonwealth Court and there consolidated. On April 22, 1976, the Commonwealth Court entered an order dismissing the appeals on the ground that "hospitals operating nursing schools are not institutions of higher education." Commonwealth, Pennsylvania Higher Education Assistance Agency v. Abington Memorial Hospital, 24 Pa. Commw. 352, 356, 356 A.2d 837, 839 (1976). We allowed this appeal.
Appellants argue that they are eligible institutions within the meaning of the IAGA and that a contrary construction of the act unconstitutionally deprives them of equal protection of the law. I would reject both contentions.
Since the only issues presented are questions of statutory and constitutional interpretation, and since the PHEAA is empowered to determine which institutions are eligible for IAGA grants "pursuant to the provision of this act,"*fn2 an appellate court must affirm the PHEAA's adjudication rendering appellants ...