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PENNSYLVANIA STATE EDUCATION ASSOCIATION AND EDWARD MISCAVAGE v. COMMONWEALTH PENNSYLVANIA (08/12/82)

decided: August 12, 1982.

PENNSYLVANIA STATE EDUCATION ASSOCIATION AND EDWARD MISCAVAGE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE ET AL., RESPONDENTS



Original jurisdiction in case of Pennsylvania State Education Association and Edward Miscavage v. Commonwealth of Pennsylvania, Department of Public Welfare, et al.

COUNSEL

Catherine C. O'Toole, for petitioners.

Maura A. Johnson, Deputy Attorney General, with her David H. Allshouse, Mary Frances Grabowski and Richard D. Balnave, Deputy Attorneys General, Allen C. Warshaw, Chief, Special Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish and Judge Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge MacPhail.

Author: Macphail

[ 68 Pa. Commw. Page 280]

Before us*fn1 are the preliminary objections of the Department of Public Welfare (DPW) and Luzerne County Child and Youth Services (Respondents) in the nature of a demurrer*fn2 to an amended petition for review filed by the Pennsylvania State Education Association and Edward Miscavage (Petitioners).

The factual background of this case relates to a report of suspected child abuse filed against Petitioner Miscavage, a public school teacher, in September of 1980, pursuant to the provisions of the Child Protective Services Law (CPSL), Act of November 26, 1975, P.L. 438, as amended, 11 P.S. §§ 2201-2224.*fn3

[ 68 Pa. Commw. Page 281]

Petitioners filed their amended petition for review in the nature of an action for declaratory judgment and injunctive relief.*fn4 Essentially, Petitioners seek a declaratory judgment stating the public school teachers are not subject to the provisions of the CPSL or the pertinent DPW regulations (Regulations), 6 Pa. B. 836 (1976), promulgated thereunder, and an injunction which would prohibit Respondents from exercising any jurisdiction over Petitioner Miscavage or any other public school teacher under the provisions of the CPSL or the Regulations. Respondents, of course, contend that public school teachers are included within the purview of the CPSL and the Regulations.

Since all well pled factual matters in the amended petition for review are admitted for the purpose of our ruling on the demurrer, Burgerhoff v. Pennsylvania State Police, 49 Pa. Commonwealth Ct. 49, 410 A.2d 395 (1980), we will proceed to address the issue raised by the demurrer, mindful of the case law which instructs us that a demurrer may be sustained only where the law says with certainty that no recovery is permitted and that if there is any doubt about sustaining a demurrer, that doubt should be resolved in favor of overruling it. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

Both Respondents and Petitioners seem to hinge their respective arguments on opposite interpretations of the statutory language "a person responsible

[ 68 Pa. Commw. Page 282]

    for the child's welfare" as found in Section 3 of the CPSL, 11 P.S. § 2203, which defines, ...


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