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decided: October 24, 1986.


Original Jurisdiction in case of Woodland Hills School District v. Commonwealth of Pennsylvania, Department of Education.


Patrick J. Clair, with him, William C. Andrews, Goehring, Rutter & Boehm, for petitioner.

Ernest N. Helling, Assistant Counsel, with him, Mary M. Rogers, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 101 Pa. Commw. Page 508]

Woodland Hills School District (District) and the Department of Education (Department) have filed cross motions for summary judgment seeking a declaratory judgment as to the School District's obligation under Section 1374 of the Public School Code of 1949 (Code)*fn1 to provide midday transportation to gifted,*fn2 nonpublic school students.

For the 1982-83 school year, the District organized its special education program for gifted students*fn3 to provide elementary school students instruction one-half day per week in one of the District's public school buildings. The transportation program included nonpublic school students. However, in the 1983-84 school year, the District reorganized its gifted student program. Instruction was offered in each public school and itinerant teachers traveled to each school on the scheduled days, thus eliminating transportation for the nonpublic school students.*fn4

[ 101 Pa. Commw. Page 509]

Parents of these nonpublic school students filed complaints contending that their children's rights to special education were violated. Upon investigation, the Department found the District to be in violation of state law and directed*fn5 the District, or alternatively the Allegheny Intermediate Unit, to provide midday transportation to the nonpublic school students. The District and the Department seek by summary declaratory judgment to determine their respective obligations to provide midday transportation to these students.

Summary judgment is properly entered only when the moving party establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Kane v. Hilton, 78 Pa. Commonwealth Ct. 629, 468 A.2d 1160 (1983). To determine

[ 101 Pa. Commw. Page 510]

    whether to enter a summary judgment, a court must view the record in the light most favorable to the nonmoving party. J. Berman & Sons, Inc. v. Department of Transportation, 21 Pa. Commonwealth Ct. 317, 345 A.2d 303 (1975). The moving party's burden to prove that its right to a summary judgment is clear and free from doubt is a heavy one. Zeck v. Balsbaugh, 66 Pa. Commonwealth Ct. 448, 445 A.2d 253 (1982).

The mentally gifted nonpublic school pupils who are the subject of this action have a right to be identified and to be provided an education program designed to meet their needs. Centennial School District v. Department of Education, 94 Pa. Commonwealth Ct. 530, 503 A.2d 1090 (1986). Accordingly, when the district developed and offered its special education program to resident pupils, it also gave nonpublic school students the opportunity for "dual enrollment."*fn6

The only dispute, therefore, is whether the District has an obligation to provide midday transportation to the nonpublic school students. The Department argues that Section 1374, governing transportation of exceptional children, controls; the District contends that its only transportation obligation to gifted students arises out of the more general Section 1361*fn7 to provide identical

[ 101 Pa. Commw. Page 511]

    transportation services to public and nonpublic school students. We disagree with the District's contention.

When a general provision in a statute is in conflict with a special provision in the same or another statute, the special provisions shall prevail, and the two shall be construed, if possible, so that effect may be given to both. 1 Pa. C.S. ยง 1933. This is a fundamental rule of statutory construction.

Our review of the statutory provisions compels us to agree with the Department that the controlling provision for the transportation of exceptional students is the more specific section, Section 1374 of the Code, which provides:

Any exceptional child, who is regularly enrolled in a special class that is approved by the Department of Public Instruction, or who is enrolled in a regular class in which approved educational provisions are made for him, may be furnished with free transportation by the school district. When it is not feasible to provide such transportation the board of school directors may in lieu thereof pay for suitable board and lodging for any such child. If free transportation or board and lodging is not furnished for any exceptional child who, by reason thereof, is unable to attend the class or center for which he is qualified, the intermediate unit shall provide the transportation necessary.

[ 101 Pa. Commw. Page 512]

Nonpublic elementary school students are included in Section 1374 because they are mentally exceptional children and are regularly enrolled in an approved special class operated by the District. Pursuant to Section 1374, the District*fn8 must furnish either free transportation or board and lodging to these students.*fn9 We hold that the District cannot escape this express duty by relying on the general transportation obligation found in Section 1361.

In Pires v. Department of Education, 78 Pa. Commonwealth Ct. 127, 467 A.2d 79 (1983), we examined Section 1374 of the Code and held that an exceptional child enrolled in a Department-approved special class or in a regular class with approved special education provisions is entitled to free transportation by the school district or the intermediate unit.*fn10

[ 101 Pa. Commw. Page 513]

We disagree with the District's interpretation that Section 1374 merely requires that exceptional children be transported when the need for transportation arises as a direct consequence of the child's exceptionality. The District's interpretation would deny any exceptional child who does not suffer from a mental or physical handicap which requires transportation the opportunity for dual enrollment. Such a denial is not only contrary to the provisions of the Code*fn11 but also is a result never intended by the legislature. See Zimmerman v. O'Bannon, 497 Pa. 551, 442 A.2d 674 (1982). The parents' election to have their children attend a nonpublic school and to be dually enrolled in the District's gifted program should not impose on them the choice between a duty to provide midday transportation or in the alternative forego their children's right to gifted special education.

Accordingly, we grant the Department of Education's motion for summary judgment and deny Woodland Hills School District's motion.


The Department of Education's motion for summary judgment is granted and the Woodland Hills School District's cross-motion for summary judgment is denied.


Motion of petitioner denied. Motion of respondent granted.

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