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SUMMIT SCHOOL v. COMMONWEALTH PENNSYLVANIA (06/29/79)

decided: June 29, 1979.

THE SUMMIT SCHOOL, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT



Original jurisdiction in case of The Summit School, Inc. v. Commonwealth of Pennsylvania, Department of Education.

COUNSEL

Robert L. Franklin, with him Franklin, Grodinsky & Boonin, for petitioner.

John A. Alzamora, Assistant Attorney General, with him Patricia A. Donovan, Deputy Attorney General, for respondent.

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

Author: Crumlish

[ 43 Pa. Commw. Page 624]

A "Petition for Review in the Nature of Mandamus" initiated a request by the Summit School (Summit)

[ 43 Pa. Commw. Page 625]

    that the Pennsylvania Department of Education (Department) be compelled to act upon an application for Department approval of Summit's special education program for socially and emotionally disturbed students. An Answer and Summit's Motion for Judgment on the Pleadings followed.

Summit is a private school for handicapped children licensed by the State Board of Non-Public Schools.*fn1 For a number of years it has had specific licensure for the special education of both learning disabled and brain damaged school-aged children and Department approval as a school entitled to receive state tuition reimbursement for the special education of Pennsylvania resident brain-damaged/learning-disabled children whose enrollment in the school has been approved by the Department.*fn2

Summit has applied for Department approval as a school for the special education of tuition reimbursable emotionally and socially disturbed students. The Department refused to process the application asserting that the statute and regulations impose no duty to so act.

The questions for determination are whether Sections 1372(3) and 1376(a) of the statute*fn3 and Regulation 171.23(a) of the Pennsylvania Code*fn4 require the Department to evaluate all applications by private schools for "approved private school"*fn5 status and give a determination as to their eligibility to receive tuition

[ 43 Pa. Commw. Page 626]

    reimbursements for exceptional children regardless of the Commonwealth's need for these institutions; whether refusal by the Department to evaluate such applications constitutes an abuse of its discretion; whether mandamus may issue to ...


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