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ROBERT G. SCANLON v. MOUNT UNION AREA BOARD SCHOOL DIRECTORS (04/29/80)

decided: April 29, 1980.

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



Original jurisdiction in case of Robert G. Scanlon, Acting Secretary of Education and Edward G. Biester, Jr., Acting Attorney General v. Mount Union Area Board of School Directors, Petition for review in the Commonwealth Court of Pennsylvania in the nature of mandamus, equity and declaratory judgment to compel scheduling of required instructional days.

COUNSEL

Paul Schilling, Deputy Attorney General, with him Susan Forney, Deputy Attorney General, Donna Weldon, Assistant Attorney General, Allen Warshaw, Chief, Civil Litigation, and Edward G. Biester, Jr., Attorney General, for petitioners.

John R. Miller, Jr., of Miller, Kistler & Campbell, for respondent.

Michael I. Levin, with him William Fearen, Cleckner and Fearen, for Pennsylvania School Boards Association, Amicus Curiae.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge Craig. Dissenting Opinion by Judge Rogers. Judge Wilkinson, Jr., joins in this dissent. Judge Williams, Jr., joins in this dissent.

Author: Craig

[ 51 Pa. Commw. Page 84]

This case is before us on exceptions taken by the Secretary of Education and the Attorney General (petitioners) to the November 28, 1979 order and opinion of our late President Judge James S. Bowman, which

[ 51 Pa. Commw. Page 85]

    dismissed petitioners' multi-count petition in the nature of mandamus, equity and declaratory judgment against respondent Mount Union Area Board of School Directors. Scanlon v. Mount Union Area Board of School Directors, 47 Pa. Commonwealth Ct. 409, 408 A.2d 555 (1979).

On the basis of Judge Bowman's opinion, we affirm his dismissal of the mandamus and equity counts, and the count characterized as Declaratory Judgment No. 2, as moot. We also concur in his reasoning and decision that the remaining declaratory judgment count is proper for disposition.

We are unable to improve on Judge Bowman's concise statement of the factual basis of this contest, which we quote:

The factual background . . . 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 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.

[ 51 Pa. Commw. Page 86]

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.

47 Pa. Commonwealth Ct. at 411-12, 408 A.2d at 556-57.

The declaratory judgment count which we do address asserts that Section 1501 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. ยง 15-1501, mandates a minimum of 180 days of instruction for pupils in each school year. Section 1501 provides:

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. No days on which the schools are closed shall be counted as days taught, and no time shall be counted as a pupil session for any activity to which admission is charged. Unless otherwise provided by this act, the board of school directors in any

[ 51 Pa. Commw. Page 87]

    district or joint board may keep such other schools or departments as it may establish open during such time as it may direct.

Our decisions on this question are few, and have been ably summarized in the opinion of Judge Bowman in this case and by the late Judge Kramer in Commonwealth v. Mifflin County School Board, 30 Pa. Commonwealth Ct. 213 (1977). Hence, ...


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