Opinion

Somerset Area S.D. v. Rockwood Area S.D.

Court: Commonwealth Court of Pennsylvania
Filed: May 5, 2023
Status: Unpublished
On the bench: Covey, J.
Cited by: 0 cases
Authority: More cited than 23.2%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Somerset Area School District, :

Petitioner :

v. :

Rockwood Area School District, :

Joseph E. Archer, Nancy J. Bonati, :

Christopher C. Bosworth, Deborah A. :

Bosworth, Belita J. Brown, Stephen C. :

Brown, Deborah A. Cunningham, Paul :

V. Cunningham, Candace DiMarco, :

Ross F. DiMarco Jr., Janeen Dupre, :

Karen A. Farmerie, Wilson J. :

Farmerie, David A. Fetchko, Mary :

Ellen Fetchko, Clifford J. Forrest, :

Tracy L. Forrest, Gary D. Gadley, :

Annette D. Ganassi, Hemlock Property :

LLC, Georgia C. Hernandez, Robert :

M. Hernandez, Martha E. Hildebrandt, :

Mark J. Hileman, Rebecca L. Hileman, :

James A. Nassif, Qualified Personal :

Residence Trust, Susan A. Jurik, Kurt J. :

Lesker III, William J. Lloyd, David P. :

Mendis, Lisa B. Mendis, Joseph C. :

Metzgar, Lynette E. Metzgar, Erin :

Morris, Michael A. Morris, Netco Inc., :

Mary Jo Ochson, John C. Prentice, :

Douglas Keith Rosetti, Ronald T. :

Rosetti, Seven Springs Farm, Inc., :

Matthew Tarosky, Three Rivers :

Enterprises Inc., David A. Tonnies, :

Cynthia G. Urgo, Donald J. Urgo, :

Virginia’s Pheasant Run Limited :

Partnership, David A. Webber, Lorie A. :

Webber, Harold Wiegel, Steven H. :

Wiegel, James P. Wilhelm, Paige M. :

Wilhelm, Jackie Wolfe, Jacquelyn K. :

Wolfe, Tim Wolfe, and Timothy W. :

Wolfe (Pennsylvania Department of :

Education), : No. 175 C.D. 2022

Respondents : Argued: April 3, 2023

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: May 5, 2023

Somerset Area School District (Somerset) petitions this Court for

review of the Secretary of Education’s (Secretary) February 4, 2022 order (Order)

approving Respondents’1 Petition to Establish an Independent School District for

Property Situated in Jefferson Township, Somerset County for Purposes of Transfer

from Somerset to Rockwood Area School District (Rockwood) (Petition). Somerset

presents six issues for this Court’s review: (1) whether this Court should revisit

Archer v. Rockwood Area School District, 249 A.3d 617 (Pa. Cmwlth. 2021),

wherein this Court concluded that Respondents’ desire to lower their tax millage is

relevant to educational merit since there are presently no students in the proposed

independent school district; (2) whether the Secretary, on remand, erred by merely

reciting rather than analyzing the evidence this Court considered potentially

relevant; (3) whether the Secretary erred by considering Somerset’s and Rockwood’s

Respondents, various property owners, among others, include: Rockwood Area School

District, Joseph E. Archer, Nancy J. Bonati, Christopher C. Bosworth, Deborah A. Bosworth,

Belita J. Brown, Stephen C. Brown, Deborah A. Cunningham, Paul V. Cunningham, Candace

DiMarco, Ross F. DiMarco Jr., Janeen Dupre, Karen A. Farmerie, Wilson J. Farmerie, David A.

Fetchko, Mary Ellen Fetchko, Clifford J. Forrest, Tracy L. Forrest, Gary D. Gadley, Annette D.

Ganassi, Hemlock Property LLC, Georgia C. Hernandez, Robert M. Hernandez, Martha E.

Hildebrandt, Mark J. Hileman, Rebecca L. Hileman, James A. Nassif, Qualified Personal

Residence Trust, Susan A. Jurik, Kurt J. Lesker III, William J. Lloyd, David P. Mendis, Lisa B.

Mendis, Joseph C. Metzgar, Lynette E. Metzgar, Erin Morris, Michael A. Morris, Netco Inc., Mary

Jo Ochson, John C. Prentice, Douglas Keith Rosetti, Ronald T. Rosetti, Seven Springs Farm, Inc.,

Matthew Tarosky, Three Rivers Enterprises Inc., David A. Tonnies, Cynthia G. Urgo, Donald J.

Urgo, Virginia’s Pheasant Run Limited Partnership, David A. Webber, Lorie A. Webber, Harold

Wiegel, Steven H. Wiegel, James P. Wilhelm, Paige M. Wilhelm, Jackie Wolfe, Jacquelyn K.

Wolfe, Tim Wolfe, and Timothy W. Wolfe.

(collectively, the Districts) tax millage differences when there was no evidence of

the effect on the Districts; (4) whether the Secretary erred by finding a difference in

management quality without considering all relevant factors; (5) whether substantial

evidence supports the Secretary’s finding of educational merit in the proposed

transfer; and (6) whether the Secretary’s finding of educational merit was against the

weight of the evidence.2 After review, this Court vacates and remands.

I. Background

On June l, 2012, Respondents filed the Petition in the trial court

pursuant to Section 242.1 the Public School Code of 1949 (School Code),3 24 P.S.

§ 2-242.1, therein seeking to transfer territory consisting of a portion of property

located within Jefferson Township (Territory) out of the Districts for educational

and real estate tax improvement purposes. See Reproduced Record (R.R.) at 400a.

Section 242.1(a) of the School Code provides, in relevant part:

A majority of the taxable inhabitants of any contiguous

territory in any school district or school districts, as herein

established, may present their petition to the court of

common pleas of the county in which each contiguous

territory, or a greater part thereof, is situated, asking that

the territory be established as an independent district for

the sole purpose of transfer to an adjacent school district

contiguous thereto. Where the territory described in any

such petition is to be taken from two or more school

districts, such petition shall be signed by a majority of all

the taxable inhabitants of the part of each school district

which is to be included in such independent district for

transfer. Such petitions shall set forth a proper description

of the boundaries of the territory to be included in such

proposed independent district, and the reasons of the

This Court has reordered and summarized Somerset’s issues for ease of discussion herein.

Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 - 27-2702. Section 242.1

was added by Section 1 of the Act of June 23,1965, P.L. 139.

petitioners for requesting such transfer to another school

district and the name of the district into which its territory

is proposed to be placed.

24 P.S. § 2-242.1(a).

Somerset is located in Somerset County, which is comprised of four

municipalities: Lincoln Township, Jefferson Township, Somerset Township, and

Somerset Borough. See R.R. at 9a. None of Somerset’s school buildings are located

in Jefferson Township. See id. Somerset had a total of 2,263 students enrolled for

the 2014-2015 school year. See id. The Territory is located south of Forbes State

Forest within Jefferson Township in the southwestern part of Somerset County and

is the part of Somerset that is contiguous to Rockwood. See id. The Territory

consists of 39 parcels of real property situated in Jefferson Township, all of which

pay real estate taxes to Somerset. See id. Of the 39 parcels, 25 property owners

joined the Petition (Joinders). See id. Many properties within the Territory are on

dead-end roads that originate in Middlecreek Township, which is assigned to

Rockwood, but end in Jefferson Township. See id. Nine of the 39 properties are

owned by entities rather than individuals. See R.R. at 10a. Only 2 property owners

among the 25 Joinders have established permanent residency, are voters registered

at those addresses, and pay earned income tax and per capita tax or adult residence

tax to Somerset. See id. Approximately half of the 39 parcels are not improved by

a home or residential building structure and, of those that are (aside from possibly 8

full-time residents associated with an unknown quantity of parcels as asserted by

Respondents), the residences are not primary residences. See id.

Rockwood is located in Somerset County, and is comprised of eight

municipalities: Black Township, Casselman Borough, Middlecreek Township,

Milford Township, New Centerville Borough, Rockwood Borough, Seven Springs

Borough, and Upper Turkeyfoot Township. See R.R. at 11a. During the 2013-2014

school year, 729 students were enrolled in Rockwood and 23 students were enrolled

in non-public schools. See id.

Respondents alleged in the Petition that there is a greater distance

between the Territory and Somerset’s schools than between the Territory and

Rockwood’s schools. See R.R. at 399a. Respondents further asserted that the

property owned by Seven Springs Farm, Inc., (Seven Springs Farm) located within

the Territory, is the only portion of Seven Springs Farm’s property that is not located

within Rockwood. See id. In addition, the plan of lots known as Pheasant Run is

located partly in Somerset and partly in Rockwood. See id. Respondents also

averred that the 13:1 teacher-to-student ratio in Rockwood is better than the 14:1

ratio in Somerset, and that Rockwood offers a superior educational opportunity. See

R.R. at 400a. Additionally, Respondents alleged that the 2010 tax millages for

Rockwood and Somerset were 21.89 and 37.96 respectively. See id. Their 2011 tax

millages were 21.89 and 39.50 respectively. See id.

On August 22, 2012, the Somerset County Common Pleas Court (trial

court) held a hearing to consider whether the Petition complied with the preliminary

requirement of Section 242.1(a) of the School Code that Respondents qualify as “[a]

majority of taxable inhabitants of a[] contiguous territory[.]” 24 P.S. § 2-242.1(a).

On November 16, 2012, the trial court concluded that Respondents failed to meet

the statute’s preliminary procedural requirements because only two of the Petition

signers qualified as taxable inhabitants and, even if the trial court included four

properties that are contiguous to the parcels owned by those taxable inhabitants, that

area was not adjacent to Rockwood into which it was proposed to be transferred.

Thus, the trial court dismissed the Petition.

Respondents appealed to this Court. On August 9, 2013, this Court held

“that the trial court erred in concluding that a ‘taxable inhabitant,’ as used in the

[School Code], must be a human being who permanently resides in the proposed

independent school district to participate in a transfer proceeding[.]” In re Indep.

Sch. Dist. for Prop. Situate in Jefferson Twp., 74 A.3d 389, 390 (Pa. Cmwlth. 2013)

(footnote omitted). Accordingly, this Court reversed the trial court’s order and

remanded for further proceedings.

On April 22, 2014, the trial court forwarded the Petition to the Secretary

to evaluate the Petition’s educational merits in accordance with Section 242.1 of the

School Code. The Department of Education (Department) forwarded Educational

Impact Projection Questionnaires to the Districts. The Districts responded to the

questionnaires and the matter was assigned to the Deputy Secretary for

consideration. The Deputy Secretary concluded that it was impossible to evaluate

the proposed transfer’s educational merit because no students lived in the proposed

independent school district. Absent students living in the proposed school district,

the Deputy Secretary determined that the Petition lacked educational merit.

Respondents sought a formal administrative hearing to challenge the

Deputy Secretary’s decision. On August 1, 2019, a hearing examiner conducted a

hearing at which the parties presented a joint stipulation and witness testimony.

Following the hearing, the Secretary issued a decision adopting the Deputy

Secretary’s determination as his adjudication.

Respondents again appealed to this Court, see Archer, arguing that the

Secretary erred by concluding that the absence of any students residing in the

proposed school district was fatal to the Petition. In Archer, this Court reversed the

Secretary’s order, explaining:

Section 242.1(a) [of the School Code] contains a detailed

list of what must be contained in a petition to establish an

independent school district. The petition must contain: (1)

the boundaries of the proposed independent school

district; (2) a verification that a majority of “taxable

inhabitants” in the “contiguous territory” agree to the

transfer; (3) the reasons for the transfer; and (4) an

identification of the school district to be joined. 24 P.S. §

2-242.1(a). This list does not include a statement that

students currently reside in the independent school district.

Likewise, it does not require any information about the

number of students that may be affected or how a transfer

would benefit them.

Section 242.1(a) [of the School Code] requires the

Secretary to consider the “merits of the petition” from an

“educational standpoint.” 24 P.S. § 2-242.1(a) (emphasis

added). In In re Weaverland Independent School District,

. . . 106 A.2d 812, 813-14 ([Pa.] 1954), the phrase “merits

. . . from an educational standpoint” was challenged as

vague and an impermissible delegation of legislative

power. Acknowledging that a statute must prescribe “with

reasonable clarity the limits of power delegated,” the

[Pennsylvania] Supreme Court held that “educational

merit” met that clarity standard. Id. at 814 (quotation

omitted). It held that “educational merit” referred to

“school considerations,” giving the phrase “educational

merit” its “ordinary meaning.” Id. at 814-15. Specifically,

the review requires the Secretary to determine whether

“the establishment of a proposed independent school

district will advance or hinder the educational facilities in

the designated area.” Id. at 815.

This Court has explained that the term “educational”

means “of, relating to, or concerned with education or the

field of education” and “[s]erving to further education.”

[In re Petition for Formation of Indep. Sch. Dist.

Consisting of the Borough of Highspire], 228 A.3d [584,]

593 [(Pa. Cmwlth. 2020), rev’d, 260 A.3d 925 (Pa. 2021)

(Highspire II)] (citing Webster’s Third New International

Dictionary 723 (2002)). The term “education” refers to a

course of study, learning, instruction, and training. Id.

These are abstract precepts.

Archer, 249 A.3d at 624-25 (footnote and citation omitted).

The Archer Court expounded:

The Secretary’s analysis of educational merit must be

done without regard to a discrete student population.

Indeed, any student population changes over the

course of years, as students move in or out of the

district or graduate. It is noteworthy that it took the

Secretary five years to make a determination on the

educational merit of the proposed independent school

district.

The Secretary’s conclusion is also inconsistent with this

Court’s holding that standing to file a transfer petition is

based upon liability for real estate taxes, not upon

parenthood or residency. [See] Jefferson Twp. . . . A

petition for an independent school district transfers

territory from one school district to another, [In re:

Petition for Formation of Indep. Sch. Dist. (]Riegelsville

II[),] 17 A.3d [977,] 988 [(Pa. Cmwlth. 2011)]; it does not

transfer people.

Archer, 249 A.3d at 625 (bold emphasis added). Thus, this Court held that the

Secretary erred by dismissing the Petition based on the lack of students residing in

the proposed independent school district.4

The Archer Court further emphasized:

Merit from an educational standpoint begins with “school

considerations.” [] Weaverland, 106 A.2d at 814. We

have held that “school considerations” include[] the

proximity of schools to the proposed independent school

district. Riegelsville II, 17 A.3d at 990-91. It also includes

consideration of the educational outcomes of each district.

There is no requirement that a petition involve an exit from

Senior Judge Leadbetter dissented, explaining:

I fully agree with the majority that the absence of school-aged

students in an area for which a district transfer is proposed does not,

in and of itself, bar the transfer or automatically mean that there can

be no educational merit to the transfer. However, I disagree that the

Secretary . . . based his decision on any such conclusion. In

discussing his agreement with the recommendation of the hearing

examiner, he stated[:] “I do not believe the Deputy Secretary

imposed a specific requirement that there be school[-]age[d]

students to approve the Petition.” (Sec’y’s Op. at p.4.) Rather, he

found that under the highly unusual circumstances here, evidence

regarding the traditional factors would be too speculative to form

the basis of a conclusion regarding educational merit.

Archer, 249 A.3d at 627 (Leadbetter, S.J., dissenting).

a severely deficient school district in order to show

educational merit.

Archer, 249 A.3d at 625 (citation omitted). In addition, the Archer Court considered

the parties’ stipulation which, inter alia, reflected that Rockwood’s schools are

closer to the proposed independent school district than Somerset’s schools. With

respect thereto, the Archer Court noted that “[a] reduction in students’ travel time

has been held to demonstrate educational merit.” Id. The Archer Court also

referenced Rockwood’s better student/teacher ratio, lower tax millage rates and

fewer administrators, stating that “[b]etter management has been held to demonstrate

educational merit.” Id. at 626. The Archer Court further observed that Rockwood

students scored better than Somerset students on various proficiency tests over a

seven-year period, and that the School Code “makes district performance a factor in

the evaluation of educational merit.” Id.

Concluding that the Secretary had refused to evaluate the stipulated

facts and hearing testimony because of the absence of any students in the proposed

territory, this Court reversed the Secretary’s order and remanded the matter to the

Secretary to “evaluate all of the evidence against the factors that, according to

precedent, have been held to demonstrate merit from an educational standpoint.” Id.

at 627.

On October 7, 2021, the Pennsylvania Supreme Court issued its

decision in Highspire II, wherein the Supreme Court explained:

Transfer petitions under Section []242.1 [of the School

Code] are factually unique and depend upon the

circumstances raised in a particular case. In those

petitions where financial conditions may play a role in

the Secretary’s assessment of educational merit, there

should be no constraints on his or her ability to take

them into consideration. Moreover, it must be

acknowledged that in reviewing a petition for

educational merit, the Secretary must take a holistic

approach, looking not just at the students who would

be transferred, but at the students in each of the

affected school districts. See, e.g., Wash[.] Twp. [Indep.

Sch. Dist. v. Pa. State Bd. of Educ., 153 A.3d 1177,] 1181

[(Pa. Cmwlth. 2017)]. No language in Section 242.1 [of

the School Code] requires the Secretary to limit his or her

review only to the newly proposed school district, and

neither the Secretary nor the Commonwealth Court have

ever limited an educational merits analysis in this way.

Highspire II, 260 A.3d at 941 (italic, bold and underline emphasis added; footnote

omitted).

On February 4, 2022, the Secretary issued his opinion on remand

(Opinion) and the Order. See R.R. at 8a-33a. In his Opinion, the Secretary

referenced Archer, stating:

[L]ooking at many of the traditional factors of

“educational merit” present in its previous cases, the

[Archer] Court has found that the record in this matter

contains evidence of educational merit. Notably in

Archer[,] the Commonwealth Court did not accept former

Secretary Rivera’s conclusion that the weight of the

academic merits presented by this transfer could not be

determined due to a lack of students or prospective

students in the territory. The Court has also implicitly

rejected former Secretary Rivera’s conclusion that

because there was no evidence that travel times of any

potential students would be reduced by the transfer (as

opposed to simply travel distance) that was not a measure

of educational merit. Further in Archer, [the]

Commonwealth Court rejected former Secretary Rivera’s

conclusion that the School Code states an educational

preference for keeping a township (in this case, Jefferson

Township) as part of one school district. Instead, the

[Archer] Court stated that the Secretary must focus on

the need to keep a “community of interest” together

which it found would be the case in this matter by

bringing the real estate development of Seven Springs

Farm []. together in one school district.

R.R. at 23a-24a (bold emphasis added).

Acknowledging that he was constrained by Archer, the Secretary then

concluded that reduced travel distance, better academic results, better school district

management, and more favorable taxes demonstrate educational merit favoring the

transfer. Somerset appealed to this Court.5

II. Discussion

Initially, the Highspire II Court explained:

Section []242.1 of the [] School Code ([]Section 242.1[])

provides a means for a majority of the taxable inhabitants

within a geographical territory to file a petition to create

an independent school district for the purpose of

transferring that territory to another school district that is

territorially contiguous with that of the petitioning district.

24 P.S. § 2-242.1. The petition must initially be filed with

the court of common pleas, which determines if the

petition meets certain basic procedural requirements, e.g.,

that a majority of the taxable inhabitants of the would-be

independent district have signed the petition and that the

proposed receiving district is contiguous to that territory.

See In re Establishment of Indep. [Sch.] Dist. of

Wheatland, 846 A.2d 771 (Pa. [Cmwlth.] 2004). The

court of common pleas then sends the petition to the

Secretary, who then must pass on “the merits of the

petition for its creation, from an educational standpoint.”

24 P.S. § 2-242.1.

If the Secretary approves the petition, it is returned to the

trial court to sign a decree establishing the independent

school district, along with a statement of the obligations of

the school district from which the independent school

district is being severed and a statement prorating the state

subsidies payable between or among the former school

district and the new school district. Wheatland, 846 A.2d

at 773. The matter is then transferred to the State Board

“This Court’s review determines whether constitutional rights have been violated,

whether the adjudication is in accordance with the law, whether the proceedings relating to practice

and procedure before an agency were violated, and whether necessary findings of fact are

supported by substantial evidence.” Archer, 249 A.3d at 622 n.5.

[of Education] under Section 292.1 of the School Code,[6]

Wash[.] T[wp.], 153 A.3d at 1187, to determine whether

the transfer would “violate the adopted [State] Board [of

Education] standards or express statutory standards that

govern the organization of school districts.” Riegelsville

II, 17 A.3d at 981-82. If the State Board [of Education]

approves, then the independent district is merged into the

new and reconstituted school district. Id.

Highspire II, 260 A.3d at 936.

Even though the School Code neither defines the phrase

“merits from an educational standpoint” nor any of the

component words therein, the phrase is not vague, is not a

technical term, and must be given its ordinary meaning.

Riegelsville II, 17 A.3d at 985 n.10. Specifically[,]

regarding the scope and meaning of the Secretary’s

statutory authority to “pass” on the merits, we have held

that his or her authority is not open-ended but instead

restricted to the substantive provisions of the School Code.

Id. at 991. Further, analogizing the Secretary’s role to a

veto power, id. at 982, we have held: “[W]hen the

Secretary exercises his [or her] discretion to determine

whether a proposed transfer has ‘merit from an

educational standpoint,’ he [or she] must be guided by the

policy choices made by the legislature in the [School

Code] and not by his [or her] own personal sense of what

constitutes good education policy.” Id. at 991. This

“manifest restriction” on the Secretary’s power is

“necessary lest the statute violate the proscription against

delegating legislative power to an administrative agency.”

Id. at 988-89.

Wash. Twp., 153 A.3d at 1184.

The [] School Code . . . creates comprehensive

accountability mechanisms. It includes provisions

requiring school districts to submit yearly financial reports

with budget statements, [See Sections 218,[7] 687, 2133[8]

of the School Code, 24 P.S.] §§ 2-218, 6-687, 21-2133,

and establishes auditing and reporting requirements. [See

Added by the Act of June 23, 1965, P.L. 139, as amended, 24 P.S. § 2-292.1.

Added by the Act of May 10, 2000, P.L. 44, No. 16, § 1.1.

Added by the Act of February 4, 1982, P.L. 1, § 5.

Sections 2401-2462, 24 P.S.] §§ 24-[2]401 - 24-2462.

Records of these reports are required to be retained by the

district for at least six years. [See Section 518 of the

School Code, 24 P.S.] § 5-518. The General Assembly

has created a framework for identifying and monitoring

school districts in financial distress and to assist them in

financial recovery through the development and

implementation of recovery plans. [See Sections 601-A-

695-A of the School Code, 24 P.S.] §§ 6-601-A - 6-695-

A.[9] The General Assembly developed a special system

to assess school districts’ financial practices and establish

public financial accountability. [See Sections 2501-2511

of the School Code, 24 P.S.] §§ 25-2501 - 25-2511 . . . .

Districts that use “best practices” because of demonstrated

financial management “instill public confidence,” while

those who do not exhibit best practices are required to

provide an action plan to remedy issues identified by the

assessment. See [Sections 2507-A - 2508-A of the School

Code, 24 P.S.] §§ 25-2507-A - 25-2508-A.[10] These

provisions are supplemented by regulations in [Chapter 18

of the State Board of Education’s Regulations,] 22 Pa.

Code [§§ 18.1-18.8], and together they aim to identify

school districts with negative financial conditions that

might impact their ability to provide and maintain

educational programs for students and methods to rectify

those conditions.

These provisions of the [] School Code reflect our General

Assembly’s unmistakable recognition that a school

district’s financial health is an essential factor in its ability

to provide a suitable education to its students. To require

the Secretary to attempt to fulfill his [or her] duty to

ascertain the educational merits of a school district transfer

under Section 242.1 [of the School Code] without

considering the issues of financial viability undermines his

or her ability to make a meaningful determination. The []

School Code demonstrates the legislature’s obvious

recognition that a school district cannot educate students

without adequate resources. Educational resources are not

free - teachers, buildings, school supplies, computers, etc.

Sections 601-A - 695-A of the School Code were added by Section 10 of the Act of July

12, 2012, P.L. 1142.

Sections 2507-A and 2508-A of the School Code were added by Section 36 of the Act

of December 23, 2003, P.L. 304.

all need to be financed. To the extent that a proposed

independent school district results in undermining the

ability of the remaining school district to finance the

educational needs of its students, that detriment is a

legitimate consideration in the Secretary’s analysis. For

these reasons, in conducting a review of the educational

merits of a proposed school district transfer petition, the

Secretary may undoubtedly consider financial conditions

that would result from the transfer.

Highspire II, 260 A.3d at 940.

Moreover,

[t]he leading case on the construction of th[e] words[,

“merits from an educational standpoint,”] is . . .

Weaverland . . . . It addressed the meaning of “merits from

an educational standpoint” and the extent of the

Secretary’s power to determine those merits.

Riegelsville II, 17 A.3d at 986.

[The Weaverland Court] explained:

The statute directs the [s]uperintendent to

pass upon the merits of the petition “from an

educational standpoint.” Giving those words

their usual and ordinary meaning, [see]

Statutory Construction Act of 1937, P.L.

1019, Sec[tion] 33, [formerly] 46 P.S. § 533,

[repealed by the act of December 6, 1972,

P.L. 1339,] they can have no other intended

import than that the Superintendent must

determine whether, on the basis of his expert

knowledge in the field of education, the

establishment of a proposed independent

school district will advance or hinder the

educational facilities in the designated area.

It is difficult to imagine how the legislature

could have more explicitly expressed its

intention in the premises.

[Weaverland], 106 A.2d at 815 (emphasis added).[11]

The Riegelsville II Court further stated:

Riegelsville II, 17 A.3d at 988.

Weaverland interpreted “merits from an educational

standpoint” at a time when approval of an independent

school district effected a new district, not a transfer, and

the reason for a proposed new district was limited to

“better facilities.” Nevertheless, Weaverland continues

to control the construction of “merits from an

educational standpoint” in two important respects.

First, the [Pennsylvania] Supreme Court held that the

Secretary’s power under Section 242 [of the School Code]

In 1954, when Weaverland was decided, the [School Code]

contained a provision at Section 241 [of the School Code] that

explains the [Pennsylvania] Supreme Court’s above-quoted

analysis. Section 241 [of the School Code] stated, in relevant part,

as follows:

Such petition shall set forth a proper description of

the boundaries of the territory to be included in such

proposed independent school district, and the desire

of the petitioners for better school facilities than are

or would be provided and maintained by the district

or districts of which such independent school district

is a part.

24 P.S. § 2-241 (emphasis added). Section 241 [of the School Code]

has been replaced with the following provision:

Such petition[s] shall set forth a proper description of

the boundaries of the territory to be included in such

proposed independent district, and the reasons of the

petitioners for requesting such transfer to another

school district and the name of the district into which

its territory is proposed to be placed.

Section 242.1(a) of the [School Code], 24 P.S. § 2-242.1(a)

[(emphasis added)]. The current law, i.e., Section 242.1(a) [of the

School Code], does not mention school facilities. Petitioners are

now free to cite reasons other than “better school facilities” for their

proposed transfer.

Riegelsville II, 17 A.3d at 988.

is “manifestly restricted,” which is necessary lest the

statute violate the proscription against delegating

legislative power to an administrative agency. Second, in

ruling that “merits from an educational standpoint” was

not vague, the [Pennsylvania] Supreme Court turned to

other, relevant provisions in the [School Code] to give the

standard substance. That continues to be the appropriate

approach to discerning the meaning and application of the

statutory standard.

Riegelsville II, 17 A.3d at 988-89 (emphasis added; footnote omitted).

A. Law of the Case

Somerset first argues that given the Pennsylvania Supreme Court’s

holding in Highspire II, this Court should revisit its Archer decision. Despite

approving the Petition, the Secretary expressed his unease in finding educational

merit in the transfer where there are no students in the Territory. He questioned

Archer’s continued applicability in light of our Supreme Court’s Highspire II

decision. The Secretary observed:

[W]hile I am required to follow the ruling of [the]

Commonwealth Court in Archer remanding this matter, I

believe the [Commonwealth] Court’s opinion to be in

tension with the [Pennsylvania] Supreme Court’s

subsequent ruling in [Highspire II]. While Somerset did

not appeal Archer and the cases involve different issues,

the fact that Archer prevents me from considering that

there are no students here, or in my view[,] no

reasonable prospect of students, is difficult to reconcile

with [Highspire II]. Indeed, the Archer [C]ourt’s

statements that the definition of educational merit

involves “abstract precepts” and that “[t]he Secretary’s

analysis of educational merit must be done without regard

to a discrete student population” is [sic] difficult to

square with [our] Supreme Court’s statement in

[Highspire II] that in reviewing such petitions “the

Secretary must take a holistic approach, looking not

just at the students who would be transferred, but at the

students in each of the affected school districts.”

[Highspire II], [260 A.3d] at 941[] ([italic] emphasis

added). Compare also with Archer, 249 A.3d at 627

([s]tating that “[a] petition for an independent school

district transfers territory from one school district to

another . . . does not transfer people”[]). Indeed, it is

arguable that the Supreme Court’s approach to viewing

these cases, following the values set forth in the School

Code, is a student-based approach and the approach

embodied in the Archer opinion is not. It is also clear in

[Highspire II] that the Secretary’s role in determining

educational merits is to weigh educational values when

they may be competing. Accordingly, it is problematic to

require the Secretary to ignore discrete student populations

impacted, or in this case that no actual students will be

benefited by improved transportation times or

improvements in test scores or school district

management. Without actual students, it appears the

only educational benefit here is reduced taxes for

certain taxpayers, which the Commonwealth Court

itself has held is not sufficient in its own to constitute

educational merit. Archer, 249 A.3d at 627. If I were to

be permitted to consider the lack of students involved

in this transfer, I would weigh the educational benefits

to this transfer to the hypothetical students in this

territory to be negligible.

R.R. at 30a-31a (bold emphasis added).

Respondents counter that, notwithstanding the Secretary’s misgivings,

the “law of the case” doctrine prevents this Court from revisiting its earlier holding

in Archer. The Pennsylvania Supreme Court has described:

Th[e law of the case] doctrine refers to a family of rules

which embody the concept that a court involved in the

later phases of a litigated matter should not reopen

questions decided by another judge of that same court or

by a higher court in the earlier phases of the matter.

Among the related but distinct rules which make up the

law of the case doctrine are that[] (1) upon remand for

further proceedings, a trial court may not alter the

resolution of a legal question previously decided by the

appellate court in the matter; (2) upon a second appeal,

an appellate court may not alter the resolution of a

legal question previously decided by the same appellate

court; and (3) upon transfer of a matter between trial

judges of coordinate jurisdiction, the transferee trial court

may not alter the resolution of a legal question previously

decided by the transferor trial court.

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (emphasis added; citations

omitted). “Departure from . . . these principles is allowed only in exceptional

circumstances such as where there has been an intervening change in the

controlling law, a substantial change in the facts or evidence giving rise to the

dispute in the matter, or where the prior holding was clearly erroneous and would

create a manifest injustice if followed.” Id. at 1332 (emphasis added). Further, “[i]t

is well[ ]settled that changes in decisional law which occur during litigation will be

applied to cases pending on appeal.” Pa. State Police v. Workers’ Comp. Appeal

Bd. (Bushta), 149 A.3d 118, 121 (Pa. Cmwlth. 2016), aff’d, 184 A.3d 958 (Pa. 2018)

(quoting Cipic v. Workers’ Comp. Appeal Bd. (Consolidation Coal Co.), 693 A.2d

1009, 1011 (Pa. Cmwlth. 1997) (emphasis omitted)).

The Pennsylvania Supreme Court’s Highspire II decision effected a

change in the controlling law from the Archer Court’s reasoning. Unlike Archer,

which prohibits the Secretary’s educational merit analysis from considering a

discrete student population, Highspire II requires the Secretary to “take a holistic

approach, looking not just at the students who would be transferred, but at the

students in each of the affected school districts.” Highspire II, 260 A.3d at 941

(emphasis added). Further, Highspire II holds that “[i]n those petitions where

financial conditions may play a role in the Secretary’s assessment of educational

merit, there should be no constraints on his or her ability to take them into

consideration.” Id. This Court’s directive in Archer is irreconcilable with our

Supreme Court’s mandate in Highspire II. Accordingly, this Court concludes that

the Secretary should have rendered his Opinion in accordance with the law as

described in Highspire II.

B. Secretary’s Analysis of the Evidence

Somerset next contends that the Secretary, on remand from this Court’s

Order, erred by merely reciting (without analyzing) the evidence that the Archer

Court considered possibly relevant, and improperly deferred to the Archer Court’s

findings. Specifically, Somerset argues:

The Secretary’s report . . . conflates [the] Commonwealth

Court’s identification and discussion of evidence of

educational merits in the record to findings of fact, when

the statute clearly requires the Secretary’s independent

educational merit determination. There is no basis for the

Secretary to assert that his authority and responsibility to

act under the terms of applicable Pennsylvania [l]aw can

be abrogated by the Commonwealth Court. The

Secretary’s refusal to conduct the inquiry and

determination imposed upon the Department . . . is entirely

unjustified. Due process and common sense require the

Secretary’s full and adequate review and action.

Somerset Br. at 20.

The Pennsylvania Supreme Court declared in Highspire II:

[W]eighing of interests are not in the purview of the

Commonwealth Court. . . . [I]t is for the Secretary to

weigh [] factor[s] in determining the educational merits

of the petition. In doing so, students in all of the affected

school districts over time are part of the analysis. . . . It is

the Secretary, applying his “expert knowledge in the

field of education” through the lens of the [] School

Code, who makes the determination of educational

merits in light of the factors.

Highspire II, 260 A.3d at 940-41 (bold and underline emphasis added).

By complying with this Court’s directives in Archer, the Secretary

applied a more constrained approach to weighing educational merits of the

Territory’s proposed transfer than was his role as later prescribed in Highspire II -

where financial conditions may play a role in the

Secretary’s assessment of educational merit, there should

be no constraints on his or her ability to take them into

consideration. . . . [I]n reviewing a petition for educational

merit, the Secretary must take a holistic approach,

looking not just at the students who would be transferred,

but at the students in each of the affected school districts.

Highspire II, 260 A.3d at 941 (bold and italic emphasis added; citation and footnote

omitted). Consistent therewith, the Secretary should have considered the entirety of

the impact on all of the affected school districts and weighed that impact on

Somerset’s students and on Rockwood’s students and those students in the

proposed independent district (including consideration of the current absence of any

such students and the lack of any record evidence that the student population will

likely increase in the near future, or record evidence of how the change will impact

Rockwood’s students’ education). Accordingly, as stated above, because Highspire

II was decided after Archer and was decided by our Supreme Court, the Secretary

should have applied the law as the Pennsylvania Supreme Court declared in

Highspire II.12

For all of the above reasons, the Secretary’s Order is vacated, and the

matter is remanded to the Secretary for further proceedings consistent with this

Opinion.13

_________________________________

ANNE E. COVEY, Judge

This Court notes that the Secretary’s decision reflects that the Secretary did more than

merely recite the evidence that the Archer Court considered relevant and analyzed the evidence.

Nonetheless, in weighing the evidence, it is clear that the Secretary relied, in large part, on the

Archer Court’s review, and the Archer Court’s constraints on such review. Given the Highspire

II decision, the Secretary must conduct his own independent review as informed by Highspire II.

Given this Court’s disposition of the first two issues, it does not reach Somerset’s

remaining issues on appeal.