district superintendents have a standard by which to know what is satisfactory.
The ultimate conclusion one must reach concerning tutorial education in Pennsylvania is that, absent definition in the statute itself, and failing supplementary support from regulations promulgated by the Department of Education, the law providing for such education is unconstitutionally vague. All the values of Grayned have been offended. A person of ordinary intelligence cannot reasonably steer between the lawful and unlawful to avoid criminal prosecution. There exists no standards for determining who is a qualified tutor or what is a satisfactory curriculum in any district. Superintendents of school districts, while exercising a legitimate and constitutional function of managing their districts according to the unique character of each district, nevertheless make their decisions on an ad hoc basis which can result in the dangers of arbitrary and discriminatory application. While some circumstances allow the luxury of awaiting judicial clarifications, the threat to sensitive First Amendment freedoms mandates judicial intrusion in the form of declaring the particular provision of the law unconstitutional for vagueness.
In our discussion and analysis, we do not cite Blackwelder v. Safnauer, supra, as precedential. Rather, we refer to it as a case with comparable issues, and in particular for the factors considered by the court which allowed a conclusion precluding a declaration of unconstitutionality where the words of legislation were lacking in precise definition. Be that as it may, we have considered holdings where vagueness either required a declaration of unconstitutionality or warranted its consideration. [ See, Fellowship Baptist Church v. Benton, 620 F. Supp. 308, 318 (D.C. Iowa, 1985), affirmed in part, 815 F.2d 485, 495-496 (8th Cir. 1987). (Term "equivalent instruction" unconstitutionally vague, but remanded for further consideration in light of newly adopted standards by the state); Ellis v. O'Hara, 612 F. Supp. 379 (D.C. Mo., 1985), (Reversed and remanded to consider mootness in light of legislative action); Wisconsin v. Popanz, 112 Wis. 2d 166, 332 N.W.2d 750 (1983), (Term "private school" vague where regulations and statute do not define, and each district administrator compiled a list by his own individual standard); Minnesota v. Newstrom, 371 N.W.2d 525 (Minn. 1985), (Phrase "essentially equivalent" held vague); and Ohio v. Schmidt, 29 Ohio St. 3d 32, 505 N.E.2d 627 (1987), (Majority found no violation of the Free Exercise Clause to the First Amendment based on the central issue of whether delegation of discretionary authority given local superintendents of schools infringed on religious freedom. However, the statute provided for judicial review to measure whether the conduct was arbitrary and capricious.)]. We cite this case because the dissent considered the phrase "person qualified to teach" in reference to the standard applicable to teachers. It was not considered by the majority. The dissent's reasoning, applicable here, held the phrase to be unconstitutionally vague.
The counterclaim of defendants would have us declare that plaintiffs are in violation of the tutorial provisions aforesaid, and that they should be compelled by this court to comply with its provisions. Having concluded that the tutorial provision is unconstitutionally vague, we could not grant defendants relief if this litigation were to continue. Accordingly, as a necessary result of our conclusion as to vagueness, the defendants' counterclaim will be dismissed.
Because there is no alternative statutory provision for tutorial education in Pennsylvania, and since the legislative intent is to permit tutorial education, including such instruction in a home setting, we do not mean for this ruling to end tutorial education under the statute. We do intend by this ruling to grant the requested declaratory relief by holding that the statute is unconstitutionally vague in the particulars discussed earlier. In this context plaintiffs, as well as others, are permitted a legitimate defense to criminal prosecution. Accordingly, in this case, defendants are enjoined from pursuing criminal prosecution of the plaintiffs.
Since we believe the legislative intent for tutorial schooling exists in Pennsylvania, we shall stay the effective date of the order which follows, except for that portion which pertains to the prosecution of the plaintiffs. The stay will be in effect until December 31, 1988, or until the legislature enacts new legislation or the Secretary of Education promulgates regulations consistent with our Memorandum, whichever occurs first.
NOW, this 24 day of August, 1988, it is hereby ORDERED, ADJUDGED AND DECREED that:
 the tutorial provision of the Pennsylvania Compulsory Attendance Law, 24 P. S. 13-1327, as discussed in the accompanying Memorandum is unconstitutionally vague;
 the defendants' counterclaims are dismissed;
 the defendants are enjoined from pursuing criminal prosecution of the plaintiffs under the provisions of the Pennsylvania statute at issue here;
 the effective date of this Order, except for that portion pertaining to the criminal prosecution of plaintiffs, will be stayed until December 31, 1988, or until the legislature enacts new legislation or the Secretary of Education promulgates new regulations, whichever occurs first; either or both events to be consistent with the accompanying Memorandum;
 the right of appeal available to both parties is uneffected by this Order if it is determined that no new enactments will occur or the promulgation of new regulations will not take place; and
 the Clerk of Court will close the case.