The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
First Philadelphia Preparatory Charter :
School, Tacony Academy Charter School, :
Memphis Street Academy Charter School :
at J.P. Jones, Lindley Academy Charter :
School at Birney, f/k/a General David B. :
Birney Charter School, A String Theory :
Charter School, f/k/a Philadelphia :
Performing Arts Charter School, :
Philadelphia Charter School for Arts and :
Sciences at H.R. Edmunds, Architecture :
and Design Charter High School d/b/a :
Charter High School for Architecture and :
Design, :
Petitioners :
:
v. : 159 M.D. 2017
: Argued: October 19, 2017
Commonwealth of Pennsylvania, :
Department of Education, Pedro Rivera :
Secretary of Education of the :
Commonwealth of Pennsylvania, School :
District of Philadelphia, William Hite, :
Superintendent of the School District of :
Philadelphia, Tom Wolf, Governor of the :
Commonwealth of Pennsylvania, Josh :
Shapiro, Attorney General of the :
Commonwealth of Pennsylvania, Joseph :
Scarnati, III, President Pro Tempore of the :
Senate of Commonwealth of :
Pennsylvania, Jay Costa, Minority Leader :
of the Senate of the Commonwealth of :
Pennsylvania, Mike Turzai, Speaker of the :
House of Representatives of the :
Commonwealth of Pennsylvania and :
Frank Durmody, Minority Leader of the :
House of Representatives of the :
Commonwealth of Pennsylvania, :
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
SENIOR JUDGE LEADBETTER FILED: February 22, 2018
Background
Petitioners are a group of brick-and-mortar charter schools located in
Philadelphia that are challenging the charter school per-pupil subsidy rates for the
2016-17 school year established by the School District of Philadelphia (District).
Respondents include the Department of Education (PDE), Secretary of Education
Pedro Rivera, Governor Tom Wolf (collectively, Executive Respondents), the
District and District Superintendent Dr. William Hite (District Respondents),
Attorney General Josh Shapiro, and the majority and minority leaders of both houses
of the General Assembly (Legislative Respondents). The focus of Petitioners’
litigation is Section 1725-A of the Charter School Law (CSL),1 which requires that
a school district that has any resident student enrolled in a charter school pay the
charter school for each enrolled student. Section 1725-A(a)(2), (3), (5), and (6) of
the CSL, which we reference throughout this opinion, provides:
(2) For non-special education students, the charter
school shall receive for each student enrolled no less than
the budgeted total expenditure per average daily
membership for the prior school year, as defined in section
2501(20) [of the CSL], minus the budgeted expenditures
of the district of residence for nonpublic school programs;
adult education programs; community/junior college
programs; student transportation services; for special
education programs; facilities acquisition, construction
and improvement services; and other financing uses,
1
Act of June 19, 1997, P.L. 225, as amended, 24 P.S. § 17-1725-A.
2
including debit service and fund transfers as provided in
the Manual of Accounting and Related Financial
Procedures for Pennsylvania School Systems established
by the department. This amount shall be paid by the
district of residence of each student.
(3) For special education students, the charter
school shall receive for each student enrolled the same
funding as for each non-special education student as
provided in clause (2), plus an additional amount
determined by dividing the district of residence’s total
special education expenditure by the product of
multiplying the combined percentage of section 2509.5(k)
[of the CSL] times the district of residence’s total average
daily membership for the prior school year. This amount
shall be paid by the district of residence of each student.
....
(5) Payments shall be made to the charter school in
twelve (12) equal monthly payments, by the fifth day of
each month, within the operating school year. A student
enrolled in a charter school shall be included in the
average daily membership of the student’s district of
residence for the purpose of providing basic education
funding payments and special education funding pursuant
to Article XXV. If a school district fails to make a
payment to a charter school as prescribed in this clause,
the secretary shall deduct the estimated amount, as
documented by the charter school, from any and all State
payments made to the district after receipt of
documentation from the charter school. No later than
October 1 of each year, a charter school shall submit to the
school district of residence of each student final
documentation of payment to be made based on the
average daily membership for the students enrolled in the
charter school from the school district for the previous
school year. If a school district fails to make payment to
the charter school, the secretary shall deduct and pay the
amount as documented by the charter school from any and
all State payments made to the district after receipt of
documentation from the charter school from the
appropriations for the fiscal year in which the final
documentation of payment was submitted to the school
district of residence.
3
(6) Within thirty (30) days after the secretary makes
the deduction described in clause (5), a school district may
notify the secretary that the deduction made from State
payments to the district under this subsection is inaccurate.
The secretary shall provide the school district with an
opportunity to be heard concerning whether the charter
school documented that its students were enrolled in the
charter school, the period of time during which each
student was enrolled, the school district of residence of
each student and whether the amounts deducted from the
school district were accurate.
24 P.S. § 17-1725-A(a)(2), (3), (5), and (6) (emphasis added).
In their six-count petition for review, Petitioners maintain that they are
entitled to declaratory, mandamus, and injunctive relief.2 Counts 1 and 2 are in the
nature of declaratory relief and do not purport to be against any specific respondents.
In Count 1, Petitioners seek declaratory relief to recognize as void or invalid PDE’s
July 2012 “Guidelines for Form Completion PDE-363, Funding for Charter
Schools” (Guidelines), which PDE developed for the stated purpose of
2
Section 7541 of the Declaratory Judgments Act provides that “[i]ts purpose is to settle and
to afford relief from uncertainty and insecurity with respect to rights, status, and other legal
relations, and is to be liberally construed and administered.” 42 Pa. C.S. § 7541. Appropriate only
where there is an actual controversy, such controversy “exists when litigation is both imminent
and inevitable and the declaration sought will practically help to end the controversy between the
parties.” Chester Cmty. Charter Sch. v. Dep’t of Educ., 996 A.2d 68, 80 (Pa. Cmwlth. 2010).
“Granting or denying a petition for declaratory judgment is committed to the sound discretion of
a court of original jurisdiction.” GTECH Corp. v. Dep’t of Revenue, 965 A.2d 1276, 1285 (Pa.
Cmwlth. 2009).
An extraordinary remedy, a writ of mandamus is “used to compel official performance of a
ministerial act when a petitioner establishes a clear legal right, the respondent has a corresponding
duty, and the petitioner has no other adequate remedy at law.” Tindell v. Dep’t of Corr., 87 A.3d
1029, 1034 (Pa. Cmwlth. 2014). Its purpose is to enforce rights that have been clearly established.
Id.
As for permanent injunctive relief, the following criteria must be established: (1) the right to
relief is clear; (2) the relief is necessary to prevent an injury which cannot be compensated by
damages; and (3) greater injury will occur from refusing the injunction than from granting it.
Mazin v. Bureau of Prof’l & Occupational Affairs, 950 A.2d 382, 389 (Pa. Cmwlth. 2008).
4
implementing Section 1725-A(a) and directed each school district to abide by the
procedures specified therein. See Addendum to Opinion. They aver that the
Guidelines create a binding norm and, therefore, amount to regulations which were
not lawfully promulgated. Alternatively, they aver that the Guidelines improperly
instruct school districts to implement in mid-year recalculated and revised rates
based upon the district’s actual expenditures for the prior school year in violation of
Section 1725-A(a), which provides that charter schools shall be funded by districts
in twelve equal monthly payments, as determined in reference to the district’s
budgeted expenditures for the prior school year. In Count 2, Petitioners request a
declaration that Section 1725-A(a) prohibits the process described in the
Guidelines.3
In Counts 3 through 6, Petitioners seek relief against the District. Count
3 is a request for injunction and seeks a prohibition against adjustment and
retroactive recovery of per-pupil subsidies. Specifically, Petitioners request that this
Court enjoin the District from hereafter reducing charter school per-pupil funding
rates by recalculating those rates based upon actual expenditures for the prior school
year, and compel the District to restore 2016-17 rates to the amounts as they existed
prior to the PDE-mandated calculation of revised rates. Count 4 is in the nature of
mandamus and asserts that the District has a mandatory duty to calculate subsidies
in accordance with the statutory formula, irrespective of the PDE’s invalid
Guidelines. This count requests that we direct the District to make immediate
payment to Petitioners of 2016-17 subsidy payment amounts withheld due to the
recalculation of rates based upon actual expenditures. Count 5 is in the nature of a
mandatory injunction and requests that this Court enter judgment in Petitioners’
3
Petitioners assert that the PDE mandated process, if not enjoined, will deprive Philadelphia
charter schools of more than twenty million dollars in 2016-17 subsidy funding to which they are
statutorily entitled.
5
favor and direct the District to make immediate payment to them of any and all
amounts owed for the 2016-17 school year. In Count 6, Petitioners assert a
procedural due process violation under Section 1983 of the United States Code, 42
U.S.C. § 1983, averring that the District has implemented a process which deprives
them of their protected property interests in per-pupil funds without providing them
with prior notice and an opportunity to be heard. Petitioners seek reimbursement
from the District of all amounts withheld as a result of the PDE mandated
recalculations for the current and all prior school years, as well as court costs and
counsel fees.
Following a July 2017 hearing, Petitioners’ motion to preliminarily
enjoin the District from reducing future payments in accordance with the Guidelines
was granted until further order of this Court.4 The Court observed that all school
districts had followed the statutory mandate set forth in the CSL until about 2012,
when PDE changed its Guidelines to the ones at issue. It further noted that the
District neither disputed that the Guidelines were patently inconsistent with the CSL
nor even attempted to reconcile that discrepancy as a matter of law. In concluding
that Petitioners established a clear right to relief, the Court determined:
Evidence was presented that the Guidelines were
implemented to prevent school districts from devising
artificially low budgets, depriving their charter schools of
subsidies to which they should have been entitled.
Apparently some districts, not Philadelphia, had engaged
in such practices in the past. Clearly, basing the subsidies
on actual school district spending in the prior year is a fair
and appropriate vehicle to insure that all charter schools
throughout the state receive their fair share of funding.
Nonetheless, however salutary the Department’s policy, it
is beyond the authority of the Department to mandate
4
It was further ordered that Petitioners file a $5000 bond on or before July 31, 2017, and
Petitioners did so.
6
subsidy calculations inconsistent with the statutory
formula. To ameliorate the problems perceived by the
Department is the sole prerogative of the General
Assembly.
(July 19, 2017, Leadbetter, S.J., Memorandum Opinion (Op.) at 8.)
In addition, even though Petitioners had an existing statutory remedy in
Section 1725-A(a)(5) and (6) of the CSL by which they could seek to recoup the
District’s underpayment of subsidies and at least one of the Petitioners had pending
appeals before PDE, the Court agreed that the process was slow and inefficient
thereby rendering it inadequate. (Id. at 6.) Further, observing that violation of an
express provision of a statute is per se irreparable injury,5 the Court nonetheless
determined that Petitioners showed the requisite harm.6 Finally, it concluded that
the District produced neither evidence of harm if the injunction were granted nor any
negative impact on the public. See Chester Cmty. Charter Sch. v. Dep’t of Educ.,
996 A.2d 68, 78 (Pa. Cmwlth. 2010) (holding that, “as between the school district
and the charter school, the legislature has decided that more harm will befall a charter
school that is not paid . . . accurately than upon a school district that may experience
delay in the receipt of the state subsidy to which it is entitled.”).
Now before us for disposition are four sets of preliminary objections
from the respective respondents, as well as the application to strike Petitioners’
answer to preliminary objections filed by Executive Respondents and the application
for sanctions filed by Legislative Respondents. We turn first to the objections of
5
Wyland v. West Shore Sch. Dist., 52 A.3d 572, 583 (Pa. Cmwlth. 2012).
6
The Court credited the testimony of Mr. Gerald Santilli, who “testified that a mid-year
reduction in funding that was budgeted at the beginning of the school year can cause a school
district to face the Hobson’s choice of laying off needed staff or making other spending cuts that
harm the educational quality of programs, or of dipping into their surplus or equity, endangering
their bond rating and, in some situations, their ability to continue as a viable entity.” (July 19,
2017, Memorandum Op. at 9.)
7
those parties that claim to have been improperly joined (Attorney General,
Governor, Secretary, Superintendent, and Legislative Respondents), which will
enable us to focus on the remaining matters that are ripe for review.7
Whether any Claim is Stated Against the Attorney General, Governor,
Secretary, Superintendent and Legislative Respondents
In Count 1, Petitioners aver that PDE, the Secretary, and the Attorney
General are “charged with representing the general public and those charter schools
and school districts which have an interest in the validity of the [Guidelines] and the
proper construction of Section 1725-A(a) funding formula.” (April 18, 2017,
Petition for Review, ¶ 88.) They assert that joining every school district and charter
school in the Commonwealth that have those interests “would frustrate the remedial
and liberal intent of the Declaratory Judgments Act[.]” (Id.) In Count 2, Petitioners
aver that “[t]he Governor, the presiding officers of the General Assembly, PDE, the
Secretary and the Attorney General adequately represent the interests of all
individuals who would potentially be impacted by the declaration sought.” (Id., ¶
95.) By making those assertions, Petitioners seem to be explaining their decision to
include all of these parties without significant elucidation. No further allegation
regarding the Governor, the Attorney General, or the Legislative Respondents is
stated, let alone any claim that these parties have failed to fulfill the duties ascribed
to them, that they play any role in the processes at issue here or that they have taken
any action whatsoever with respect to the funding of charter schools.8
7
In July 2017, the Court granted the motion to dismiss or quash appeal filed by Executive
Respondents to the extent that Petitioners sought to invoke our appellate jurisdiction, observing
that their petition did not identify any governmental agency determination for which review was
sought.
8
As for the Legislative Respondents, which PDE acknowledges, issues concerning the
enforcement of the CSL are vested exclusively in the executive branch of government and not with
8
Turning next to the Superintendent, we observe that Petitioners’ only
reference to him is in paragraph 128(c) of the petition for review, which must be
read in conjunction with the remaining provisions of that paragraph:
128. The threatened and ongoing deprivation by the
. . . District to Petitioners . . . of per pupil funds to which
they are entitled constitutes official action of the . . .
District, though such official action has not been formally
approved into policy by resolution of the governing
School Reform Commission, because it constitutes the
policy, custom, or practice of the . . . District, as
demonstrated by:
(a) The . . . District’s annual practice since
approximately 2012 of implementing the per pupil rate
recalculation and reconciliation process;
(b) Official correspondences from Uri Monson,
Chief Financial Officer of . . . [the] District, to all
Philadelphia charter schools . . . alerting them to the per
pupil rate calculation and reconciliation process; and
(c) Upon information or belief, the actual or
constructive knowledge and approval or acquiescence of
the . . . District’s governing School Reform Commission,
the Superintendent, and other key leadership personnel.
(April 18, 2017, Petition for Review, ¶ 128(a)-(c) (emphasis added)).
We conclude that the allegations against the Governor, the Attorney
General, the Superintendent and the Legislative Respondents are insufficient as a
matter of law to support Petitioners’ cause of action. Contrary to Petitioners’
assertions, these parties are not indispensable simply by virtue of “representing the
general public,” some segment of which may have an interest in this matter. See 1st
Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 116 (3d Cir. 1993) (holding that,
“[i]f we were to allow [joinder of] Commonwealth Officials in this lawsuit based on
the legislative branch. The crux of this case is that PDE’s Guidelines are invalid because they
conflict with the very statute enacted by the Legislative Respondents.
9
their general obligation to enforce the laws of the Commonwealth, we would quickly
approach the nadir of the slippery slope; each state’s high policy officials would be
subject to defend every suit challenging the constitutionality of any state statute, no
matter how attenuated his or her connection to it.”). Therefore, the demurrers of the
Governor, the Attorney General, the Superintendent and the Legislative
Respondents are sustained.9
Turning finally to the Secretary, Executive Respondents assert that it is
PDE, rather than the individual executive respondents, that is charged with the
regulation and administration of the CSL and with enforcing and defending the
disputed statutory provisions. As PDE states: “Because it is PDE’s responsibility
to enforce the statute, and because the PDE-363 Guidelines challenged here were
issued by PDE, not the Governor or Secretary, any relief sought by [Petitioners] in
Counts 1 and 2 can be ordered against PDE . . . .” (Executive Respondents’ Brief at
15-16.) Dismissing the Secretary, however, is problematic.
In Section 1725-A(a)(5) and (6) of the CSL, the legislature
unambiguously identified the Secretary as the party legislatively prescribed to
perform certain functions. For example, Section 1725-A(a)(6) provides, in pertinent
part, that within thirty days after the Secretary makes the deduction described in
clause (5), a district may notify him of the inaccuracy of the deduction. The
Secretary is required to provide the district with an opportunity to be heard regarding
whether the amounts deducted from the school district were accurate. Although
PDE’s preliminary objections assert that these responsibilities are to be carried out
by the Department rather than its Secretary, given the statutory framework and the
9
To the extent these parties have raised other preliminary objections, we need not address
them.
10
issues at hand, we believe both PDE and the Secretary are proper parties.
Accordingly, this preliminary objection of the Secretary is denied.
Remaining Preliminary Objections
Statutory Remedy
The primary argument raised by the remaining Respondents, i.e., PDE,
its Secretary and the District, is that Petitioners have an available statutory remedy
and, therefore, that this Court lacks jurisdiction to entertain this declaratory
judgment action. However, for this argument to prevail, the statutory remedy must
be adequate. While the CSL does indeed provide a remedy for charter schools which
believe they have been underfunded, this preliminary objection fails for several
reasons.
Following extensive presentation of evidence at the preliminary
injunction hearing, this Court noted:
Petitioners produced evidence that the Charter High
School for Architecture and Design has a pending
challenge to the District’s 2015-16 rate reduction before
the Department. This challenge was initiated last winter
and, as yet, no hearing has been set by the Department. If
and when the Department issues a final decision further
appeal could be taken to this Court. Petitioners assert in
their brief that the Auditor General has described the
process as slow and inefficient, and the Court is in
agreement with this characterization. In addition to the
burdensome nature of the process, they contend that, even
if the charter schools can subsequently recover the funds:
(1) tangible harm will occur in the interim in that people
will lose jobs; (2) the lives of thousands of students will
be directly affected; and (3) unless the process is enjoined,
it will keep being repeated each year, depriving the
Charter Schools of funding upon which they rely. Based
on the testimony concerning the slow nature of the process
and the testimony described below concerning the
11
potential for irreparable harm in the interim, I agree that
the statutory remedy is not adequate.
(July 19, 2017, Memorandum Op. at 6-7.)
While Respondents could attempt anew to rebut this evidence in the
context of a final hearing, adequacy remains a factual question and that alone would
require this preliminary objection to be overruled. Even more fundamentally, the
statutory procedure would be carried out by the Secretary and PDE, the entities
responsible for promulgating and mandating adherence to the Guidelines here
challenged. To suggest that in carrying out the statutory process for determining the
adequacy of the District’s funding PDE and/or the Secretary would utilize anything
other than their own Guidelines is unrealistic in the extreme. While there could
eventually be an appeal to this Court, the layers of delay before the issue could be
objectively adjudicated make the statutory process wholly inadequate.
Finally, we observe that the adequacy of the statutory remedy is
intertwined with the legality of the Guidelines. It is essentially undisputed, and quite
obvious, that the Guidelines are in derogation of the plain language of the CSL, and
thus are “per se invalid,” similar to the well permitting process at issue in
Pennsylvania Independent Oil & Gas Association v. Department of Environmental
Protection, 135 A.3d 1118 (Pa. Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017)
(“PIOGA”).
In PIOGA, we considered the preliminary objections of the Department
of Environmental Protection (DEP) to PIOGA’s petition seeking a declaration
prohibiting DEP from applying and enforcing the requirements of Section 3215(c)
of the Act commonly known as the Pennsylvania Oil and Gas Act10 on well permit
applicants based on the Supreme Court’s decision in Robinson Township v.
10
58 Pa. C.S. § 3215(c).
12
Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality). In Robinson, the Supreme Court
enjoined the application and enforcement of that provision as unconstitutional. We
held that PIOGA’s members were not required to pursue piecemeal litigation in
order to obtain a judicial determination, applying two exceptions to the doctrine
requiring a party to exhaust all adequate and available administrative remedies
before the right to judicial review arises: (1) the so-called Arsenal Coal exception,11
providing that, “[w]here the effect of the challenged regulations upon the industry
regulated is direct and immediate, the hardship thus presented suffices to establish
the justiciability of the challenge in advance of the enforcement[;]”and (2) the
inadequacy of the available statutory remedy exception.
Applying the Arsenal Coal exception, we reasoned as follows:
PIOGA is challenging DEP’s ability to apply those
requirements on any of its members and is, essentially, an
industry-wide challenge to DEP’s permitting process,
which is analogous to the challenge raised in Arsenal Coal
[Company v. Department of Environmental Resources,
477 A.2d 1333, 1339 (Pa. 1984)]. It is apparent that a
conflict between DEP and PIOGA’s members concerning
the validity of DEP’s permitting process as applied to all
applicants is “unavoidable [and] the ripening seeds of a
controversy appear.”
PIOGA, 135 A.3d at 1128 (emphasis in original) (citation omitted).12
In determining that PIOGA was not precluded from challenging DEP’s
permitting process under the Declaratory Judgments Act, we were mindful of the
following: “Declaratory judgment actions were designed, in part, to eliminate the
11
Arsenal Coal Co. v. Dep’t of Envtl. Res., 477 A.2d 1333, 1339 (Pa. 1984).
12
Although Petitioners in the present case characterized their litigation as a class action, they
did not pursue that avenue. Nonetheless, we observe that the resolution of the instant declaratory
judgment action will resolve matters for the remaining school districts in the Commonwealth in
that PDE ultimately will be forced to change its guidelines or promulgate regulations to conform
with the applicable provisions of the CSL.
13
substantial expense and uncertainty that results from the type of piecemeal litigation
that DEP suggests will resolve an issue that will affect this entire industry. Id. We
concluded, therefore, that PIOGA was not required to exhaust its members’
administrative remedies before seeking judicial review via a declaratory judgment
action and that its claims were justiciable. In so determining, we noted that only
courts have the power to grant declaratory judgment and injunctive relief pursuant
to the Declaratory Judgments Act and, therefore, the Environmental Hearing Board’s
inability, inter alia, to award this relief could render the available statutory remedy
inadequate. Id. at 1129-30 [citing Empire Sanitary Landfill, Inc. v. Dep’t of Envtl.
Res., 684 A.2d 1047 1054 (Pa. 1996)].
In the present case, we conclude that PDE exceeded its authority in
developing and applying Guidelines, for the stated purpose of implementing Section
1725-A(a) of the CSL, that are in flagrant derogation of that statutory provision and
further by instructing every school district in the Commonwealth to adhere to those
Guidelines. PDE’s institution and application of guidelines that are patently
inconsistent with the CSL is analogous to DEP’s well permitting process in PIOGA.
Similarly, we decline to require charter schools from all over the Commonwealth to
engage in inefficient piecemeal litigation in order to obtain a judicial determination
reviewing guidelines that are per se invalid. Accordingly, the preliminary objections
pertaining to failure to exhaust administrative remedies are hereby overruled.13
Demurrers
We note that a demurrer contests the legal sufficiency of a complaint.
Christ the King Manor v. Dep’t of Pub. Welfare, 911 A.2d 624, 633 (Pa. Cmwlth.
13
While we conclude that the Guidelines are per se invalid, we note that any award of relief
on that basis would be premature, as the only dispositive motions now before us are the
Respondents’ preliminary objections.
14
2006), aff’d, 951 A.2d 255 (Pa. 2008). Courts must accept as true all well-pled facts
that are material and all inferences reasonably deducible from the facts. Id.
However, courts are not required to accept as true any unwarranted factual
inferences, conclusions of law or expressions of opinion. Id. For preliminary
objections to be sustained, it must appear with certainty that the law will permit no
recovery. Any doubt must be resolved in favor of the non-moving party. Id.
The Secretary and PDE demur to Petitioners’ charge that the Guidelines
amount to an invalidly promulgated regulation. This preliminary objection, if not
moot as a result of our conclusion that the Guidelines are substantively invalid,
implicates fact-finding as to both their promulgation and implementation.
Therefore, it must be overruled.
The Secretary and PDE further object on the ground that the claim for
declaratory relief seeks an advisory opinion. We disagree. Accepting Petitioners’
allegations as true, not to mention the evidence presented at the preliminary
injunction hearing (see supra at 7, n.6 and 12), it is plain that there is a genuine
controversy in which Petitioners have a direct substantial and immediate interest.
This preliminary objection must also be overruled.
The District next objects to Counts 3 and 5 seeking injunctive relief. It
argues that PDE is the sole arbiter of the adequacy of the District’s funding of its
charter schools, and that since no court has yet found the Guidelines to be invalid,
the District is complying with the law in implementing the mandate of PDE. They
also aver that the Petitioners agreed to abide by the Guidelines because they signed
charter agreements stating that they “shall comply” with all common and statutory
law and “regulations and guidance as in effect from time to time.” (District
Respondents’ Preliminary Objections at 10.) Thus it argues that Petitioners cannot
maintain a cause of action against the District or the Superintendent. This begs the
15
question at issue here. Even assuming that the District acted properly in following
the mandates of the PDE, that does not mean that it cannot be enjoined from
implementing the Guidelines if they are found to be inconsistent with the statutory
mandate. Moreover, it is utterly disingenuous to suggest that Petitioners have
waived the right to challenge the validity of the Guidelines because they signed a
general provision in their charter contracts agreeing to comply with the law. This
preliminary objection is overruled.
The District also demurs to the Petitioners’ claim for mandamus relief,
arguing that mandamus will not lie because Petitioners are not asking the Court to
order it to perform a ministerial act and that there is a statutory remedy precluding
mandamus relief. As to the latter argument, we note simply that we have already
dealt with the statutory remedy issue. With respect to the principle cited by the
District that “mandamus is not available to establish legal rights” (Brief of the
District at 23), we cannot disagree with this as a general statement of the law.
Nonetheless, as our Supreme Court noted in Seeton v. Pennsylvania Game
Commission, 937 A.2d 1028 (Pa. 2007):
[A]ssuming [the Petitioner] prevails in establishing that
the Commission's interpretation of its own regulations is
inconsistent with that body's statutory mandate,
mandamus is an appropriate remedy. . . . The Commission
does not have the power to redefine its authority at will;
the courts are an appropriate destination, and mandamus
an appropriate remedy, to direct the Commission to
comply with its statutory mandate to the extent it
misapprehends it.
Id. at 1034 (citation omitted). The issue at hand presents an even clearer case than
Seeton, which dealt with interpretation of the statutory term “wild mammals,”
whereas here the statutory language is clear beyond peradventure. Accordingly, this
objection is overruled as well.
16
We turn now to the District’s preliminary objections to Petitioners’
cause of action under 42 U.S.C. § 1983. Petitioners assert a procedural due process
violation under Section 1983, averring that the District implemented a process that
deprived them of their protected property interests in per-pupil funds without
providing them with prior notice and an opportunity to be heard. For the reasons
that follow, we conclude that Petitioners are precluded from making such claims
against the District.
This Court has held that the relationship between charter schools and
public schools is “closely intertwined.” Warner v. Lawrence, 900 A.2d 980, 988
(Pa. Cmwlth. 2006). Indeed, Section 1703-A of the CSL defines a charter school as
an independent public school established and operated under a charter from the local
board of school directors and in which students are enrolled or attend. 24 Pa. C.S. §
17-1703-A. The local school board exercises substantial control over the charter
school’s existence in that, in order to establish a charter school, an application for
approval must be submitted to the local board of school directors of the public school
district where the charter school will be located. Section 1714-A(a)(c) of the CSL,
24 Pa. C.S. § 17-1714(a)(c).
Regarding the control that a school district exercises over a charter
school, federal case law provides that the relationship between charter schools and
their local school districts “is analogous to that of a municipal corporation-creator
where the powers granted to the municipal corporation are defined and limited by
the creator.” Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 908 F.
Supp. 2d 597, 612 (M.D. Pa. 2012). This is consistent with Section 1714-A(a)(2) of
the CSL, which provides that a charter school can “[s]ue or be sued, but only to the
same extent and upon the same condition that political subdivisions and local
agencies can be sued.” 24 Pa.C.S. § 17-1714(a)(2). Significantly, federal courts
17
have held that, like a municipality, a charter school may not bring a constitutional
challenge against its creator. Pocono Mountain Charter Sch., 908 F. Supp. 2d at
612. To that end, the United States District Court for the Eastern District of
Pennsylvania recently dismissed a charter school’s Section 1983 claims with
prejudice, concluding that the charter school was sufficiently analogous to a
municipal corporation that it was precluded from asserting any constitutional claims
against the school district. I-Lead Charter Sch.-Reading v. Reading Sch. Dist., 2017
U.S. Dist. LEXIS 94491 (E.D. Pa., Civil Action No. 16-2833, filed June 20, 2017)
[citing Pocono Mountain Charter Sch., 908 F. Supp. 2d at 612 and Reach Acad. for
Boys and Girls, Inc. v. Delaware Dep’t of Educ., 8 F. Supp. 3d 574, 578 (D. Del.
2014)]. We find this case law to be persuasive, especially in light of the fact that
this cause of action is grounded in federal statutory law. Therefore, we agree that
charter schools cannot assert Section 1983 claims against their school districts, and
sustain this preliminary objection.14
Legislative Respondents’ Application for Sanctions
In their application, Legislative Respondents state that Petitioners
averred no specific facts related to them, asserted no viable legal claims against
them, and sought no specific legal relief of any kind from them. Further, these
respondents allege that they incurred significant attorney’s fees and costs to research,
draft, and prepare preliminary objections in a matter where Petitioners refused to
dismiss them voluntarily as a party absent some type of amorphous agreement of all
parties to the action that all indispensable parties had been named. Accordingly,
14
In light of this determination, we need not address the District’s further challenges to the
Section 1983 count based on its claim of immunity and its claim that Petitioners lack standing
because they are not “persons” within the meaning of Section 1983.
18
claiming that Petitioners violated Pa. R.C.P. No. 1023.1(c), they maintain that
sanctions are warranted.
Rule 1023.1(c)(1) – (3) addresses the failure to proffer, in good faith, a
signed document/pleading and provides:
(c) The signature of an attorney . . . constitutes a
certificate that the signatory has read the pleading, motion,
or other paper. By signing, filing, submitting, or later
advocating such a document, the attorney . . . certifies that,
to the best of that person’s knowledge, information and
belief, formed after an inquiry reasonable under the
circumstances,
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary delay
or needless increase in the costs of litigation,
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a nonfrivolous
argument for the extension, modification or reversal of
existing law or the establishment of new law, [and]
(3) the factual allegations have evidentiary support
or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for
further investigation or discovery[.]
We conclude that Legislative Respondents’ application for sanctions
has merit, especially in light of Petitioners’ steadfast refusal to dismiss them when
it became increasingly clear that they were not indispensable, or even appropriate,
parties. In so determining, we observe that they, through outside counsel, were
required to respond to Petitioners’ emergency application for preliminary injunction
as well as to file preliminary objections and participate in the briefing and oral
argument before this Court that followed. Accordingly, we grant their application.
19
Conclusion
For the reasons set forth above, we enter the attached order.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
20
Addendum
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
First Philadelphia Preparatory Charter :
School, Tacony Academy Charter School, :
Memphis Street Academy Charter School :
at J.P. Jones, Lindley Academy Charter :
School at Birney, f/k/a General David B. :
Birney Charter School, A String Theory :
Charter School, f/k/a Philadelphia :
Performing Arts Charter School, :
Philadelphia Charter School for Arts and :
Sciences at H.R. Edmunds, Architecture :
and Design Charter High School d/b/a :
Charter High School for Architecture and :
Design, :
Petitioners :
:
v. : 159 M.D. 2017
:
Commonwealth of Pennsylvania, :
Department of Education, Pedro Rivera :
Secretary of Education of the :
Commonwealth of Pennsylvania, School :
District of Philadelphia, William Hite, :
Superintendent of the School District of :
Philadelphia, Tom Wolf, Governor of the :
Commonwealth of Pennsylvania, Josh :
Shapiro, Attorney General of the :
Commonwealth of Pennsylvania, Joseph :
Scarnati, III, President Pro Tempore of the :
Senate of Commonwealth of :
Pennsylvania, Jay Costa, Minority Leader :
of the Senate of the Commonwealth of :
Pennsylvania, Mike Turzai, Speaker of the :
House of Representatives of the :
Commonwealth of Pennsylvania and :
Frank Durmody, Minority Leader of the :
House of Representatives of the :
Commonwealth of Pennsylvania, :
Respondents :
ORDER
AND NOW, this 22nd day of February, 2018, the preliminary objections
of Governor Wolf, Attorney General Shapiro, Superintendent Hite and the
Legislative Respondents are SUSTAINED and the above-captioned Petition for
Review is DISMISSED as to them. The objection of Secretary Rivera that no claim
has been stated against him is OVERRULED.
The preliminary objections of the Secretary, the Department of
Education and the Philadelphia School District based on the availability of an
administrative remedy and pendency of such a proceeding are OVERRULED. The
preliminary objection of the Secretary and the Department to the claim in Count 1
of the Petition for Review that the Guidelines amount to a regulation that was not
lawfully promulgated, is OVERRULED. The demurrer of the Secretary and the
Department on the basis that declaratory relief does not lie because Petitioners’
interests are not direct, substantial and immediate is OVERRULED.
The District’s preliminary objection stating that injunctive relief will
not lie because the District and Petitioners were lawfully required to follow the
Guidelines is OVERRULED. The District’s preliminary objection that mandamus
relief will not lie is OVERRULED. The District’s preliminary objection to the cause
of action arising under 42 U.S.C. § 1983 is SUSTAINED and accordingly, Count 6
of the Petition for Review is DISMISSED.
Further, we GRANT Legislative Respondents’ application for
sanctions and order them to file a detailed statement of costs and attorney’s fees with
this Court within fourteen (14) days. Executive Respondents’ application to strike
Petitioners’ answer to preliminary objections is DISMISSED as moot.
2
Remaining Respondents shall file an answer to the Petition for Review
within thirty (30) days from the date of this Order.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
3