necessities of life, and has no income remaining to provide for the transportation of her son and daughter to kindergarten.
7. Diana Moore and Sandra Verbus, and their families live approximately six miles from the school building where their children would attend kindergarten, and their children would not be able to walk to the school throughout the school year without endangering their health, safety and welfare.
8. As a result of the School District's refusal to provide round-trip transportation for kindergarten students, the named and unnamed plaintiffs have been and shall be effectively precluded from attending kindergarten because these indigent parents cannot provide an alternative means of transportation.
9. Children who have had kindergarten need less special education, participate in fewer remedial classes, continue in school longer, perform better on achievement tests and generally progress more rapidly than those who have not had kindergarten.
10. The kindergarten experience involves the use of many and varied teaching aids including games, puzzles, blocks, clay, crayons, records, and cassettes which named and unnamed plaintiffs cannot financially afford to provide for their children at home.
11. Children who are able to attend kindergarten have a definite advantage over those members of the plaintiff class who, because of financial inability, are unable to attend kindergarten.
C. Conclusions of Law
1. The Court concludes that retention of jurisdiction over this matter is necessary to avert undue prejudice to the plaintiffs and for reasons of judicial economy.
2. Transportation for kindergarten children, when provided by the School District, must be provided to each child both to and from their respective school.
3. The Court concludes that it was the intent of the state legislature that "transportation" for public school students, if provided at all, should be provided on a round-trip basis. "Transportation for public school children" is not in fact "transportation," as was intended by the General Assembly of Pennsylvania, unless and until "two-way" or "round-trip" transportation is afforded to all children.
4. In adopting section 1361 of the Public School Code of 1949, the Pennsylvania state legislature contemplated that only two-way or round-trip transportation would be provided for public school children, if in fact any transportation is to be afforded.
5. The School District's scheme of providing only one-way transportation to kindergarten-age school children is invalid as a violation of the explicit language of the state statute regulating free transportation to school children.
6. Equitable relief in the form of an injunction is the only adequate remedy that will preserve the rights of the plaintiffs to round-trip transportation under these factual circumstances.
7. If the School District in the exercise of its discretion provides "transportation" to its kindergarten children, said transportation is not transportation as envisaged by the state legislature, unless it is round-trip transportation.
1. UNDOUBTEDLY, THIS DISTRICT COURT HAS JURISDICTION TO HEAR AND DECIDE THIS PENDANT MATTER
In this case, the plaintiffs' amended complaint alleged as violation of the due process and equal protection clauses of the United States Constitution and the Pennsylvania Public School Code of 1949, a decision by the School Board of Albert Gallatin Area School District to provide free transportation to kindergarten-age children on only a one-way basis, either to or from school. It is obvious that the claims arising under the Pennsylvania statute have the same common nucleus of operative facts as the plaintiffs' federal claim. The plaintiffs' complaint presents a "case where two distinct grounds . . . support . . . a single cause of action . . ., only one of which presents a federal question." United Mine Workers v. Gibbs, 383 U.S. 715, 722, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Clearly, this is a case where the federal district court may permissibly exercise judicial power over a pendant state claim.
Subject matter jurisdiction over pendant state law claims lies in a federal district court, in the sense of judicial power, if the federal claim alleged is substantial. Id. Following Gibbs, courts have taken an expansive view of substantiality of a federal claim. Thus, federal claims are "constitutionally insubstantial only if prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merits do not render them insubstantial . . . ." Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973). Cf. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974).
In this case it is claimed that the unlawful actions of the Defendant School District denies the plaintiff class their right to a kindergarten education. The mere statement of the plaintiffs' position indicates clearly that it is a claim of substance and certainly it cannot be defined in any way as frivolous. Additionally, it should be noted that the Court of Appeals in addressing the federal claim filed by these plaintiffs and based on this very same factual background has held that the plaintiffs' original complaint in this matter alleged a substantial and colorable federal constitutional claim. See Shaffer v. Bd. of School Directors, 687 F.2d 718, 722 (3d Cir.), cert. denied, 459 U.S. 1212, 103 S. Ct. 1209, 75 L. Ed. 2d 449 (1982). See also Mitchell v. Hendricks, 68 F.R.D. 569 (E.D. Pa. 1975).
Dismissal of the pendant claim in this case would run afoul of the Supreme Court's admonition in Gibbs that pendant jurisdiction serve the ends of "judicial economy, convenience and fairness to litigants." Gibbs, supra at 726. These factors weigh decisively in favor of retaining jurisdiction.
Judicial economy and convenience is best served if this Court decides the state law question. The pendant state claim may be resolved upon the evidence previously adduced at hearings before this court thereby avoiding the necessary consequence of retrial in a state court. Weighing the amount of judicial time and energy necessary for the resolution of this case in a new forum, it would be unjust to conclude otherwise. Moreover, the purpose of the doctrine is to "protect the plaintiff against the necessity to shuttle back and forth between federal and state courts . . . ." 3A Moore's Federal Practice para. 18.07[1.- 5] n. 11 (2d ed. 1982).
In addition, as the Court of Appeals noted, because the school year is imminent, retrial in a new forum would unfairly prejudice the plaintiffs. At this stage in the litigation, retrial would entail substantial delay in the ultimate resolution of this case. Such delay may result in the irretrievable loss of access to a kindergarten education for members of the plaintiff class. Once denied, this interest in kindergarten education can never be retroactively restored. Under these circumstances, justice delayed is certainly justice denied. Relitigation of issues disposed of squanders limited judicial resources. By this Court retaining jurisdiction, the burdens of retrial are spared to the parties, the opportunity is granted to other litigants waiting their turn before overburdened courts, and taxes which support the Court system are conserved for better use.
2. THE PENNSYLVANIA PUBLIC SCHOOL CODE REQUIRES THAT DEFENDANT SCHOOL DISTRICT PROVIDE ROUND TRIP TRANSPORTATION "TO AND FROM" SCHOOL IN THE EVENT IT ELECTS TO PROVIDE ANY TRANSPORTATION OF ANY KIND TO ITS KINDERGARTEN PUPILS
This Court is called upon to construe a provision of the Pennsylvania Public School Code of 1949, which provides, in pertinent part:
The board of school directors in any school district may, out of the funds of the district, provide for free transportation of any resident pupil to and from the kindergarten, elementary school, or secondary school in which he is lawfully enrolled, provided that such school is not operated for profit and is located within the district boundaries or outside the district boundaries at a distance of not more than ten miles by the nearest public highway . . . .