Original Jurisdiction in the case of Lincoln Intermediate Unit No. 12 and Tuscarora School District v. Commonwealth of Pennsylvania, Department of Education and Thomas K. Gilhool, Secretary of Education, Robert N. Reynolds, Acting Director of the Bureau of Basic Education and Fiscal Administration of the Pennsylvania Department of Education, and Gary J. Makuch, Director of Special Education of the Pennsylvania Department of Education.
Paul L. Stevens, with him, Andrew E. Faust and Curtin and Heefner, for petitioners.
Mary B. Seiverling, Deputy Attorney General, with her, John G. Knorr, III, Chief Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondents.
Michael I. Levin, with him, Frank P. Clark and Cleckner and Fearen, Amicus Curiae, for Pennsylvania School Boards Association.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig. Judge Bucher's denial of peremptory judgment will be confirmed.
[ 123 Pa. Commw. Page 103]
Lincoln Intermediate Unit (LIU) and Tuscarora School District have moved for peremptory judgment in mandamus, asking this court to compel the Pennsylvania Department of Education (DOE) to comply with statutes and regulations governing special education and to approve or disapprove LIU's plan amendments and budget for the 1988-1989 school year without regard to DOE's funding allocations or other fiscal restraints.
Senior Judge Bucher of this court denied the petitioners' motion for peremptory judgment on September 1, 1988. LIU sought review of Judge Bucher's decision under Pa. R.A.P. 123(e).
[ 123 Pa. Commw. Page 104]
The questions we must address are: (1) whether DOE has failed to comply with the department's regulations and (2) whether DOE may consider its funding allocations in making a decision to approve or disapprove intermediate unit plan amendments and budgets.
LIU submitted plan amendments and estimated costs of implementing LIU's plan for the 1988-1989 school year in March, 1988. At approximately the same time, LIU developed a budget for the 1988-1989 school year. In May 1988, DOE sent to LIU and all other intermediate units a memorandum that assigned to each intermediate unit funding allocations that reflected the overall state funds available for special education.
In that memorandum, DOE included instructions for the submission of plan amendments stating that "prior to submission of budgets to [DOE]", each unit and school district should amend their combined plan "to accommodate 1988-1989 funding resources." The instructions added that "the combined net intermediate unit and member school district budgetary payment requests for state special education funding may not exceed the allocation. . . ."
The memorandum includes a description of the budgetary review process:
PDE [DOE] review of combined budgets of each intermediate unit and its member school districts will determine whether the budgets are, as a whole (a) consistent with the intermediate unit plan, as that plan includes programs for which state funding is being sought, and (b) within the allocations available. If the combined budget fail to satisfy either ...