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ROBERT G. SCANLON v. MOUNT UNION AREA BOARD SCHOOL DIRECTORS (11/28/79)

decided: November 28, 1979.

ROBERT G. SCANLON, ACTING SECRETARY OF EDUCATION AND EDWARD G. BIESTER, JR., ACTING ATTORNEY GENERAL, PETITIONERS
v.
MOUNT UNION AREA BOARD OF SCHOOL DIRECTORS, RESPONDENTS



Original jurisdiction in case of Robert J. Scanlon, Acting Secretary of Education and Edward G. Biester, Jr., Acting Attorney General v. Mount Union Area Board of School Directors.

COUNSEL

Paul Schilling, Deputy Attorney General, Susan Forney, Deputy Attorney General, Donna Weldon, Assistant Attorney General, Grace D'Alo, Assistant Attorney General, Norman J. Watkins, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for petitioners.

John R. Miller, Jr., with him Miller, Kistler & Campbell, Inc., for respondent.

President Judge Bowman. Opinion by President Judge Bowman.

Author: Bowman

[ 47 Pa. Commw. Page 411]

Characterizing it as a test case and one which implicitly seeks reconsideration by this Court of its prior decisions, the Secretary of Education and the Attorney General, on February 15, 1979, filed a multi-count petition for review in the nature of mandamus, equity and declaratory judgment against respondent, Mount Union Area Board of School Directors.

The petition for review and the reliefs sought in the several counts are predicated upon alternate legal theories (a) that Section 1501 of the Public School Code of 1949 (Code),*fn1 24 P.S. ยง 15-1501, mandates at least 180 days of instruction for pupils each school year, or (b) that if discretion rests in a local school board to afford less than 180 days of such instruction, respondent has abused its discretion in not doing so in this case. The school year involved is that of 1978-79.

For reasons hereinafter set forth we dismiss the mandamus and equity counts of the petition for review and one declaratory judgment count but perceive the other declaratory judgment count as proper for disposition.

The factual background undergirding petitioners' initial legal theory is uncontested. During the 1978-79 school term, Mount Union Area School District experienced a strike of its professional employees, during which strike period twenty-two (22) instructional days were lost except with respect to trainable mentally retarded pupils and those pupils who attended a vocational-technical school. Upon termination of the strike, a collective bargaining agreement was entered into. The original school calendar as adopted by respondent provided for pupil instruction to begin September 6, 1978 and to end on June 5, 1979. This calendar

[ 47 Pa. Commw. Page 412]

    provided for 180 days of pupil instruction. After settlement of the strike and agreement with its professional employees, respondent on November 21, 1978, adopted a resolution calling for the revision of the original school calendar with these pertinent features: (1) no days already scheduled for Christmas vacation would be rescheduled as days of instruction; and (2) a revised school calendar would not extend beyond June 8, 1979. The original school calendar provided for pupil instruction to end on June 5, 1979. The following day the Department of Education by one of its officials advised respondent in writing of the department's awareness of the strike and days lost thereby and of the need to afford 180 days of pupil instruction notwithstanding days lost by reason of the strike.

On January 8, 1979, respondent adopted a revised school calendar for the school year, which provided for a maximum 165 days of pupil instruction, the final day thereof being June 8, 1979. Upon receiving notice of the respondent's revised school calendar, the department promptly advised respondent that it was not in compliance with the law which the department considered as mandating 180 days of pupil instruction regardless of the disruption of the original calendar caused by the strike. Respondent declined to further revise its school calendar. Hence this suit.

At the time of hearing on the petition for review on May 22, 1979, it was revealed that one of the pupil instruction days provided for in the revised school calendar had been lost because of inclement weather conditions. Whether this day was to be made up was left unsaid, but, in any event, it was not contested that the maximum number of pupil instruction days to be afforded by respondent for the school year in question would be 165 days, with the last day fixed for June 8, 1979.

[ 47 Pa. Commw. Page 413]

After an evidentiary hearing, the parties submitted requested findings of fact and conclusions of law, briefs were submitted and oral argument was heard.*fn2

The relief sought in the mandamus count of the petition for review is an order directing respondent to make up the deficiency in pupil instruction days. Similarly, the count in equity seeks a mandatory injunction to that effect. Respondent's 1978-79 school year terminated on June 30, 1979. As these sought-for reliefs cannot now be afforded, we will dismiss these counts of the petition for review as mooted.

Another count of the petition, characterized as Declaratory Judgment No. 2, poses a somewhat unique problem associated with the present impossibility of making any meaningful declaration concerning the rights, status or other legal relations as between these parties. This particular count of the petition is predicated upon petitioners' second legal theory to the effect that if discretion rests in a local school board to afford less than 180 days of pupil instruction, respondent has abused its discretion in this case. A substantial portion of the evidentiary record in this case is directed to this issue.

In Friestad v. Travelers Indemnity Co., 452 Pa. 417, 421-22, 306 A.2d 295, 297-98 (1973), our Supreme Court broadened the reach of ...


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