School — Transportation of nonpublic school pupils — Public School Code of 1949, Act 1949, March 10, P.L. 30 — Withholding transportation subsidies.
1. Under the Public School Code of 1949, Act 1949, March 10, P.L. 30, the Secretary of Education may properly order a school district providing transportation for public school pupils to provide such transportation for nonpublic school pupils to nonpublic schools within the district or within ten miles thereof, but the Secretary is not empowered to order retroactive withholding of transportation subsidies to a school district which was not previously providing such service to nonpublic school pupils. [72-3]
OPINION BY JUDGE ROGERS, April 21, 1978:
Springfield School District, Delaware County, has filed a Petition for Review of an order of the Secretary of Education requiring it to transport nonpublic school children in accordance with the Secretary's interpretation of Section 1361 of the Public School Code of 1949. The Secretary's order also directed that Springfield School District's transportation subsidies be withheld until the district complied with his order and, in addition, until it reimbursed parents of nonpublic school pupils for past costs of transporting their children.
Act of March 10, 1949, P.L. 30, as amended, 24 P. S. § 13-1361.
Springfield School District challenges the Secretary's interpretation of the Act on grounds identical to those advanced by the School District of Pittsburgh in the case of the School District of Pittsburgh v. Commonwealth of Pennsylvania, Department of Education, 33 Pa. Commw. 535, 382 A.2d 772 (1978); and the Secretary defends his order on the same bases relied on in that case. In School District of Pittsburgh v. Commonwealth of Pennsylvania, supra, we upheld the Secretary's interpretation of the Act and the Act's constitutionality as so interpreted; but we set aside the Secretary's order with respect to the district's transportation subsidy as being without statutory authority.
Being of the belief that we fully explained our view of the law in School District of Pittsburgh v. Commonwealth of Pennsylvania, Department of Education, supra, and observing no material differences in the facts of the cases, we enter essentially the same order in this case, as follows:
ORDER
AND NOW, this 21st day of April, 1978, paragraph 1 of the Secretary of Education's final order dated August 25, 1976, requiring the Springfield School District to "transport all eligible school children beyond the school district boundaries in accordance with the ten mile mandated requirement in Act 372" is affirmed; paragraph 2 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.