Opinion
Argued September 12, 1978
October 25, 1978.
Schools — Transportation of non-public school children — Constitutionality — Public School Code of 1949, Act 1949, March 10, P.L. 30.
1. Provisions of the Public School Code of 1949, Act 1949, March 10, P.L. 30, requiring a school district to transport eligible non-public school children to schools outside the boundaries of the school district are constitutional, but the Secretary of Education is not empowered thereby to recover past subsidies paid to school districts violating those statutory requirements. [291-2]
Argued September 12, 1978, before President Judge BOWMAN and Judges WILKINSON, JR., MENCER, ROGERS, BLATT, DiSALLE and MacPHAIL. Judges CRUMLISH, JR. and CRAIG did not participate.
Appeal, No. 934 C.D. 1977, from the Order of the Acting Secretary of Education in case of In the Matter of the Administrative Hearings Under Act 372 — McKeesport and Kiski Area School Districts, File No. 1974-5 and 1974-6.
School districts ordered by Acting Secretary of Education to transport certain school children and to repay transportation subsidies. Districts appealed to the Commonwealth Court of Pennsylvania. Held: Order requiring transport of children affirmed. Subsidy refund order vacated.
Lewis J. Nescott, with him Ruby, Nescott and Taylor; Andrew G. Uncapher; Andrew G. Uncapher, Jr.; and Uncapher Uncapher, for petitioners.
Patricia A. Donovan, Deputy Attorney General, for respondent.
Philip J. Murren, with him William B. Ball and Joseph G. Skelly, for intervenors.
McKeesport Area School District and Kiski Area School District have filed a petition for review of the order of the Acting Secretary of Education requiring them to transport school children in accordance with the Secretary's interpretation of Section 1361 of the Public School Code of 1949. No issue of law or fact distinguishes this case from earlier cases decided by this Court and upholding the Secretary's interpretation of the Act and the Act's constitutionality as so interpreted. We will therefore enter an order essentially the same as the one made in those cases, which are: School District of Pittsburgh v. Commonwealth Department of Education and Joseph Scott, 33 Pa. Commw. 535, 382 A.2d 772 (1978); Springfield School District v. Commonwealth Department of Education, 35 Pa. Commw. 71, 384 A.2d 1049 (1978); Pequea Valley School District v. Commonwealth Department of Education and Fabio Pini, 36 Pa. Commw. 403, 387 A.2d 1022 (1978).
ORDER
AND NOW, this 25th day of October, 1978, paragraph 3 of the Secretary of Education's final order dated April 11, 1977 requiring the respondent districts to "transport all eligible non-public school children beyond the school district boundaries in accordance with the ten mile mandated requirement in Act 372" is affirmed; paragraph 4 thereof is vacated in its entirety, without prejudice to the Secretary's right to take future action with regard to subsidy as provided by law.