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EDGAR D. NELSON v. TUSCARORA INTERMEDIATE UNIT NO. 11 (03/16/81)

decided: March 16, 1981.

EDGAR D. NELSON, TRADING AND DOING BUSINESS AS NELSON HOUSE, APPELLANT
v.
TUSCARORA INTERMEDIATE UNIT NO. 11, APPELLEE



Appeal from the Order of the Court of Common Pleas of Huntingdon County in the case of Tuscarora Intermediate Unit No. 11 v. Edgar D. Nelson, Trading and Doing Business as Nelson House, No. 60 Sept. Term, 1975, Civil Action No. 75-1987.

COUNSEL

Bayard M. Graf, Kohn, Savett, Marion & Graf, for appellant.

John R. Miller, Jr., Miller, Kistler & Campbell, Inc., for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 57 Pa. Commw. Page 515]

Appellant Nelson House appeals from a verdict and judgment entered by the Huntingdon County Court of Common Pleas which permitted the appellee Tuscarora Intermediate Unit No. 11 (Tuscarora) to recover $1,687.09 from Nelson House for educational services Tuscarora provided Lawrence Terwilliger (Larry) during the 1973-74 school year.

The facts of this case are not in dispute. During the period relevant to this case, Larry was a mentally retarded minor whose parents resided in New Jersey. In June 1972, Larry's parents and Nelson House, an institution located in Huntingdon County and licensed by the Pennsylvania Department of Public Welfare to provide residential care for mentally retarded children, entered into a private placement arrangement and transferred Larry to Nelson House from the Lochland School, Inc., in Geneva, New York.

Nelson House does not provide educational services. However, for the 1973-74 school year, Tuscarora, pursuant to Section 1306 of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 13-1306, enrolled Larry in its program for trainable mentally retarded children. In July 1975, Tuscarora brought this suit in assumpsit against Nelson House to recover the tuition for educating Larry during the 1973-74 school year. Tuscarora premised its tuition charge for educating Larry on the fact that his parents were not residents of the school district.

[ 57 Pa. Commw. Page 516]

Nelson House first contends that liability cannot be based upon state law, initially claiming that Larry's placement in Nelson House caused him to be a resident within the area serviced by Tuscarora and entitled him to participate in Tuscarora's education program free of tuition.

Section 1302 of the Code, 24 P.S. § 13-1302, precludes us from adopting Nelson House's view as to Larry's residence. Section 1302 provides that a child is considered a resident of the school district in which his parents or guardian reside. Here Larry's parents at all times resided in New Jersey. Moreover, we believe that the word "guardian" as used in Section 1302 contemplates legal guardian, and the record is devoid of any evidence suggesting that Nelson House was anything other than Larry's temporary custodian. Thus, Larry was not a resident within the service area of Tuscarora's education program.

Consequently, Nelson House received Larry from out-of-state and, as the institution entrusted with his care and custody, was responsible for paying his tuition. That responsibility is expressly set forth in Section 1308 of the Code, 24 P.S. § 13-1308, which reads in pertinent part as follows:

If any inmates have been received from outside of Pennsylvania, or if the institution cannot certify as to their residence, their tuition shall be paid by the ...


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