Pittenger v. Union Area School Board

Concurring Opinion by

Judge Wilkinson :

I concur in the result reached by the majority, but in doing so, I do not denigrate or minimize our decision in Root v. North Cambria School District, 10 Pa. Commonwealth Ct. 174, 309 A.2d 175 (1973). I continue to be of the opinion that it is within the discretion of the school board as to whether the school calendar should be altered to make up the days missed. However, in this instance, the Board has abused its discretion. In my opinion, under the facts presented here, the Board is under a clear duty1 to modify the previously established calendar. In this regard, it is not only unnecessary to distinguish Root, much less overrule it, but, indeed, this decision is in entire accord.

*450As the majority opinion points out, Judge Rogers, speaking for the majority in Root, expressly stated that there were circumstances under which a refusal to reschedule would be an abuse of discretion. In my opinion, these circumstances exist here. The rescheduling plan submitted in this case by the Superintendent of Schools, if adopted, would have permitted the five required days to be rescheduled within the time frame of the original schedule. This would have been accomplished by the use of three originally scheduled holidays and two local in-service days. Under such circumstances, the additional advantage of the additional days of in-class instruction far outweighs the inconvenience suffered by the students, teachers, administrators, parents, and the general public.

It seems to be assumed by some that to make up the days is done only because it benefits the teachers and their union. In my opinion, whether it is a benefit or a detriment to the teachers is only to be considered along with the benefit or detriment to the other groups involved. To some teachers, rescheduling might be of benefit and to others a burden. This case was not instituted by or on behalf of the teachers. My position would be the same whether, in this instance, the teachers opposed or approved the rescheduling.

Judges Rogers and Blatt join in this concurring opinion.

. Tn Root, the action was in equity to require rescheduling. There was doubt there as to whether the action should have been in mandamus. Here, the action is in mandamus and there could be doubt as to whether it should be in equity since, under normal circumstances, the action of the school board would be based on discretion. As in Root, the importance of the matter and its doubtful procedural stance dictates that we decide the case at once. Further, since, in my opinion, under these facts, the Board is under a clear duty, mandamus would appear to be appropriate.