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decided: July 21, 1980.


No. 78 May Term, 1979 (Appeal of Department of Education), No. 79 May Term, 1979 (Appeal of Pennsbury School District), Cross-Appeals from Order of Commonwealth Court at No. 708 C.D. 1978, dated November 28, 1979, No. 80-3-487 (Appeal of Pennsbury School District), Appeal from Order of Commonwealth Court at No. 285 C.D. 1979, dated November 28, 1979, dismissing appeal from Order of Secretary of Education dated January 12, 1979.


Donna S. Weldon, Asst. Atty. Gen., Phillip A. Ayres, Asst. Atty. Gen., for Com., Dept. of Ed. in both cases.

Paul L. Stevens, Carlisle, for Pennsbury School Dist. in both cases.

Michael I. Levin, Harrisburg, for amicus curiae.

Edward G. Biester, Jr., Atty. Gen., John Philip Diefenderfer, Newtown, Persifor S. Oliver, Jr., Pittsburgh, for appellee in No. 80-3-487.

Roberts, Justice. Larsen, J., files a dissenting opinion in which Kauffman, J., joins.

Author: Roberts

[ 492 Pa. Page 137]


Like School District of Pittsburgh v. Commonwealth, Department of Education, 492 Pa. 140, 422 A.2d 1054 (1980), these cross-appeals present the issue whether, under section 2502(d) of the Public School Code of 1949, the Commonwealth's Department of Education must compute the state basic instructional subsidy of a school district experiencing a teachers' strike and providing less than the state -- mandated number of days of instruction as though no strike had occurred and the full number of days had been provided.

A teachers' strike during the 1976-77 school year caused appellee Pennsbury School District to provide only 156 days of instruction. Taking into account this reduced number of days of instruction, the Department determined that appellee district is entitled to an instructional subsidy of $3,970,312.20. Appellee district protested, claiming as did appellee district in the Pittsburgh case that the Department should not diminish the state basic instructional subsidy because of reduced instructional days. In appellee district's view, it is entitled to a subsidy of $4,375,452.90, or $405,140.70 more than the Department determined. After a departmental hearing, the Secretary of Education rejected appellee district's calculation. Appellee district then filed a petition for review (in the nature of mandamus) in the Commonwealth Court. On cross-motions for summary judgment, the Commonwealth Court ruled the Department erred in taking strike-related reduced days of instruction into account, but also ruled that because subsidy funds had already been distributed the Department cannot pay appellee district the disputed sum. Thus it ordered the Department to calculate only "future final subsidy payments" without regard to reduced instructional days. These cross-appeals, from the

[ 492 Pa. Page 138]

    order of the Commonwealth Court, 47 Pa. Commw. 428, 408 A.2d 211 at No. 708 C.D. 1978, followed.*fn1

As in the Pittsburgh case, here we hold that the Legislature requires the Department to take into account that appellee district has not provided the full, statutorily -- mandated number of days of instruction. Our reasons for so holding include the "clear implication" of several sections of the Code. See § 2523, 24 P.S. § 25-2523 (Supp.1979); Act of June 1, 1977, P.L. 4, § 1501.1, formerly 24 P.S. § 15-1501.1; Act of April 28, 1978, P.L. 121, § 1501.2, formerly 24 P.S. § 15-1501.2; Act of May 11, 1979, P.L. 26, § 1501.4. See 1 Pa. C.S. § 1924. We are also persuaded that the Legislature did not intend the unreasonable result of granting a district affected by a strike and furnishing less than 180 days of instruction the same amount of subsidy as if it furnished 180 instructional days. Nor is it the Legislature's judgment that such a district providing less than 180 days should receive the same subsidy that districts providing 180 instructional days would receive. See 1 Pa. C.S. § 1922(1). Here as in Pittsburgh "[w]e are satisfied that the Legislature did not intend to favor a strike-affected district with a full subsidy where it provides fewer days of instruction than the number required by state law."*fn2

The sole contention appellee district presents here which has not been presented in Pittsburgh is that the method by which the Department seeks to take reductions in the number of days of instruction into account is invalid for want of compliance with the Commonwealth Documents

[ 492 Pa. Page 139]

Law, Act of July 31, 1968, P.L. 769, § 101 et seq., 45 P.S. § 1101 et seq. (Supp.1979). See also 45 Pa. C.S. § 501 et seq. The Commonwealth Documents Law conditions the validity of administrative regulations on the issuing agency's compliance with prescribed publication requirements. See § 208, 45 P.S. § 1208. See generally Pennsylvania Human Relations Commission v. Norristown Area School District, 473 Pa. 334, 374 A.2d 671 (1977). Here, however, the Department's means of allocating state subsidy funds does not turn upon an administrative regulation. As we noted in the Pittsburgh case,

"the Department admits that its power to 'establish rules of procedure' conferred under section 2501(3) in no respect gives it authority to fashion any averaging device for purposes of strike-related days of instruction. See generally B. Schwartz, Administrative Law § 58 (1976). Rather, as the Department agrees, the averaging device to be employed is determined exclusively by the Legislature's statutory reimbursement scheme. See generally Rose Tree Media School District v. Department of Public Instruction, 431 Pa. 233, 244 A.2d 754 (1968)."

492 Pa. at 147-148 n.5, 422 A.2d at 1058 n.5. Thus this contention, like the contentions considered in the Pittsburgh case, must be rejected.

Order of the Commonwealth Court at No. 708 C.D. 1978 vacated and judgment entered in favor of the Department. Order at No. 285 C.D. 1979 affirmed.

LARSEN, Justice, dissenting.

I dissent for the reasons set forth in my dissenting opinion in School District of Pittsburgh v. Commonwealth, Department of Education, 492 Pa. 140, 422 A.2d 1054 (1980).

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