Original Jurisdiction in case of Chester Upland School District, The Board of School Directors of Chester Upland School District, Donald Tonge and Peggy Charleston v. The Commonwealth of Pennsylvania, The Honorable Richard Thornburgh, Governor of Pennsylvania, The Honorable LeRoy Zimmerman, Attorney General of Pennsylvania, The Pennsylvania Department of Justice, Pennsylvania Department of Education, and The Honorable Robert Wilburn, Secretary of Education.
Leo A. Hackett, with him, Michael C. Duke, Fronefield & deFuria, for petitioners.
Joel M. Ressler, Deputy Attorney General, with him, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.
Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
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Chester Upland School District and its board of directors filed this original jurisdiction action for declaratory judgment, challenging the constitutionality of a 1981 amendment to section 1106 of the Public School Code of 1949,*fn1 24 P.S. § 11-1106, which prohibits any school district, except those in the first class and first class A categories,*fn2 from requiring its employees to reside within the school district as a condition for appointment or continued employment.*fn3 The petitioners filed an amended petition including
[ 90 Pa. Commw. Page 466]
two taxpayers from the Chester Upland School District as intervening petitioners, and naming the Commonwealth of Pennsylvania, the Departments of Justice and Education, Governor Thornburgh, Attorney General Zimmerman, and former Secretary of Education Wilburn as respondents.
Presently before us are the respondents' preliminary objections, which raise jurisdictional questions and a demurrer, and the petitioners' motion for summary judgment. Because we conclude that this matter does not present an actual case or controversy, we do not reach the other issues and must dismiss the petition.
Chester Upland is a school district of the second class, and is therefore subject to the residency requirement prohibition in the 1981 amendment to section 1106 of the Code. Before 1981, Chester Upland adopted a policy of requiring non-professional school district employees to reside within the district. Chester Upland alleges that, since enactment of the 1981 amendment, it has taken preliminary action to discharge certain non-professional employees for failure to reside within the school district, and that those employees have threatened to bring legal action against the school district if they are terminated, claiming protection under the 1981 amendment. Those employees are not named in the school district's petition.
Chester Upland challenges the constitutionality of section 1106 on two grounds: (1) it violates the equal protection and due process clauses of the federal and state constitutions, as well as the uniformity clause of the Pennsylvania constitution because there is no rational basis for affording different treatment to school districts of different classes; and (2) section 1106 violates the federal and state constitutions because it discriminates against the residents of second, third, and fourth class school districts.
[ 90 Pa. Commw. Page 467]
Additionally, Chester Upland seeks a declaration that section 1106 applies only to "professional" employees, and therefore does not proscribe the school district's residency requirement which ...