Pennsylvania School Boards Ass'n v. Zogby

802 A.2d 6, 2002 Pa. Commw. LEXIS 505

Opinions

Opinion by

Judge FRIEDMAN.¹

Charles B. Zogby, the Secretary of Education of the Commonwealth of Pennsylvania (Secretary), and the Pennsylvania Department of Education (Department) (together, Respondents) have filed preliminary objections to the second amended petition for review (petition for review) filed by the Pennsylvania School Boards Association, Inc. (PSBA), the Cameron County School District, the Butler Area School District, the Mars Area School District and the Pocono Mountain School District (collectively, Petitioners).

Petitioners filed their petition for review after the Department sent letters to the school districts stating that the Department would withhold state education subsidies from those school districts that refused to pay tuition bills submitted by “cyber” charter schools (cyber schools). The Secretary eventually deducted $839,665 from numerous school districts after the Western PA Cyber Charter School submitted documentation of unpaid invoices. In the petition for review, Petitioners challenge the Secretary’s withholding of subsidies pursuant to the Charter School Law.²

Counts I, II and III of the petition for review are addressed to this court’s original jurisdiction.³ In Count I, Petitioners seek an order from this court declaring that cyber schools are illegal, and, therefore, the Department and Secretary have no authority to deduct money from state subsidies to pay cyber schools. In the alternative, Petitioners seek an order declaring that the Department and Secretary may not withhold state subsidies without providing school districts notice and an opportunity to be heard as to whether the cyber schools are acting in compliance with the Charter School Law. In Count II, Petitioners seek to enjoin the Department and Secretary from withholding subsidies to pay cyber schools or, in the alternative, from withholding such funds without providing the school districts notice and an opportunity to be heard. In Count III, Petitioners seek an order in mandamus compelling the Department and Secretary to make all state subsidy payments to the school districts without any deductions for payment to the cyber schools.

In Count IV of the petition for review, Petitioners ask this Court to review in its appellate jurisdiction the decision of the Department and its Secretary to withhold subsidies from the school districts.⁴ As relief,¹ Petitioners seek to have this court vacate that decision, compel the Department and its Secretary to pay the withheld subsidies to the school districts and prohibit the Department and its Secretary from withholding subsidies on account of students in cyber schools or, alternatively, prohibit such action until a full and complete hearing is conducted.

Respondents have raised several preliminary objections to the petition for review, including: (1) whether the withholding of subsidies represents the performance of a ministerial duty, rather than an adjudication; (2). whether Petitioners lack standing to bring this action; and (3) whether Petitioners . have pleaded facts sufficient to state a cause of action that entitles them to relief.

I. Jurisdiction

The Pennsylvania Supreme Court has held that those matters that the legislature has placed within our appellate jurisdiction under section 763 of the Judicial Code⁵ are excluded from our original jurisdiction under section 761 of the Judicial Code.⁶ Pennsylvania Department of Aging v. Lindberg, 503 Pa. 423, 469 A.2d 1012 (1983).

In Boyertown Area School District v. Department of Education, 797 A.2d 421 (Pa.Cmwlth., Nos. 2286, 2287, 2640, 2699, 2863, 2864, 2865, 2866, 2883, 2892, 2914, 2915 C.D.2001 & No. 150 C.D.2002) (2002), an en banc panel of this court held that the Secretary’s withholding of subsidies constitutes an adjudication subject to the provisions of section 504 of the Administrative Agency Law.⁷ Because the Secretary withheld subsidies from school districts without providing an opportunity for a hearing on the matter, we vacated the Secretary’s actions, remanded the case and directed the Department to provide an expedited opportunity for the school districts to challenge the deductions. Id. We explained that, before taking action to withhold subsidies otherwise due a school district, the Secretary must determine whether the charter school is operating in compliance with the Charter School Law, by which we meant only whether each claimed student is actually attending the charter school and for what period the student attended. Id. We did not address whether the Secretary was required to determine the legality of the charter school’s charter.

Because we held in Boyertovm that the Secretary’s decision to withhold state education subsidies is an adjudication properly before us in our appellate jurisdiction⁸ and because Petitioners may not simultaneously proceed in both our original and appellate jurisdiction, we dismiss Counts I, II and III of the petition for review.⁹ Respondents’ preliminary objection to Count IV, based on their contention that the withholding of subsidies is not an adjudication, is overruled. Addressing Count IV in our appellate jurisdiction, we vacate the Secretary’s withholding of subsidies, remand this case to the Department and direct the Department to provide an expedited opportunity for Petitioners to challenge the deductions. Id.

The only remaining issue is whether, on remand, the Department may determine the legality of the cyber charter schools. For the reasons that follow, we conclude that Petitioners lack standing to challenge the legality of the cyber charter schools, and the Department lacks authority to rule on such a challenge.

II. Standing

Charter schools are established under section 1717-A of the Charter School Law, 24 P.S. § 17-1717-A. After a charter school submits an application for approval to the local board of school directors, the local board must take formal action to approve or deny the application at a public meeting. 24 P.S. § 17-1717-A(e)(4). If an application is denied, the charter school alone may file an appeal with the State Charter School Appeal Board, which then reviews the decision of the local board. 24 P.S. § 17-1717-A(i)(6). If the application is denied or granted by the appeal board, only the charter school and school district whose decision is reversed may file an appeal with this court. 24 P.S. § 17-1717-A(i)(10). Thus, the only agencies given the discretion to be involved in the decision to grant or deny a charter school application under Section 1717-A of the Charter School Law are the chartering school district and the State Charter School Appeal Board. The Secretary and the other school districts are strangers to that process.

In West Chester Area School District v. Collegium Charter School, 760 A.2d 452 (Pa.Cmwlth.2000), appeal granted, 566 Pa. 674, 782 A.2d 552 (2001), we held that those not involved in the statutory process did not have standing to challenge the grant of a charter school application. In that case, residents of adjacent school districts contended that they had standing as taxpayers to intervene in an appeal before the State Charter School Appeal Board challenging West Chester’s denial of Colle-gium’s charter. The taxpayers alleged that they had standing because they might be harmed by Collegium’s admission of students from their home districts, which would reduce public funds available for their schools. The appeal board reversed the denial of the charter school application by the local school board and denied the taxpayers’ petition to intervene. On appeal to this court, we held that the taxpayers did not have standing to intervene because the Charter School Law did not provide for appeals from the grant of a charter by any party other than the charter school and the chartering school district. We also stated that the General Assembly contemplated that charter schools would admit students from outside the school district in which they were located and provided that school subsidy money from the non-chartering school districts go to the charter schools. Collegi-um Charter School.

In this case, the non-chartering school districts similarly lack standing to challenge the legality of a grant of a charter school application. The General Assembly did not give them any rights to participate in the process; the General Assembly only placed on such school districts the obligation to pay for their students who attend charter schools.

Section 1725-A of the Charter School Law, a provision that provides for the funding of charter schools, authorizes the Secretary to withhold payments when school districts refuse to make these payments but does not give school districts any right to challenge the grant of a charter school application. Subsection (5) of this section provides, in pertinent part, as follows:

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.... If a school district fails to make a payment to a charter school as prescribed in this clause, the [S]ecretary shall deduct 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.

24 P.S. § 17-1725-A (emphasis added). Thus, section 1725-A of the Charter School Law merely provides an alternative procedure to insure that a charter school receives funding when a recalcitrant school district refuses to pay.

Moreover, when a school district refuses to pay, the Secretary' has no authority to decide that the charter was granted illegally and to decline to withhold payment from the school district on that basis. Nowhere in the Charter School Law is the Secretary given such power, and if the General As sembly wanted to give the Secretary such power and set up an alternative appeal process, it would have done so. Rather, the statute gave the Secretary no discretion as to whether the grant of the charter was proper, vesting sole discretion in the chartering school district and the State Charter School Appeal Board. A contrary construction of the statute would mean that no grant of a charter school would ever be final because a non-chartering school district could always say the charter school was not established in accordance with the Charter School Law or was not carrying out its educational mandate.¹⁰

Accordingly, on remand, the Department shall not address the legality of cy-ber charter schools in its hearing to determine whether to withhold subsidies from Petitioners.

III. Legality of Cyber Schools

Even if Petitioners had standing to challenge the legality of cyber charter schools in this or another proceeding, we would conclude that the Charter School Law does not prohibit cyber schools.¹¹

Although we cannot say that the General Assembly actually contemplated the creation of cyber schools when it enacted the Charter School Law, the fact that the statute does not specifically identify cyber schools as a special class of charter schools does not mean that the statute prohibits cyber schools. The Charter School Law authorizes the creation of any charter school, as long as the entity complies with the requirements for a charter school set forth in the statute. Based on our reading of the statute, we see no reason why a cyber school cannot meet the statutory requirements.

A. School Location

Section 1722-A(a) of the Charter School Law, 24 P.S. § 17-1722-A(a) (emphasis added), which governs the location of a charter school, provides as follows:

A charter school may be located in an existing public school building, in a part of an existing public school building, in space provided on a privately owned site, in a public building or in any other suitable location.

In other words, although a charter school may be located in a traditional “bricks and mortar” building, the statute allows a charter school to be located in “any suitable location.” We believe these words are broad enough to encompass a cyber school.

B. School Site

Section 1702-A of the Charter School Law, 24 P.S. § 17-1702-A (emphasis added), provides, in pertinent part, as follows:

It is the intent of the General Assembly, in enacting this article, to provide opportunities for teachers, parents, pupils and community members to establish and maintain schools that operate independently from the existing school district structure as a method to....

(4) Create new professional opportunities for teachers, including the opportunity to be responsible for the learning program at the school site....

Section 1702-A of the Charter School Law says nothing about teachers providing instruction in the traditional manner in physical classrooms in the old “bricks and mortar” school buildings. Section 1702-A of the Law is about the intention of the legislature to create “new professional opportunities” for teachers, including the opportunity to be “responsible for the learning program at the school site.” 24 P.S. § 17-1702-A (emphasis added). A “new” professional opportunity would be the opportunity for a teacher to be responsible for a learning program that would be installed on a cyber school’s computer system “at the school site.”¹²

C. School Premises

Section 1715-A(5) of the Law states that “[a] charter school shall not provide any religious instruction, nor shall it display religious objects and symbols on the premises of the charter school.” 24 P.S. § 17-1715-A(5) (emphasis added). It is apparent that this provision applies only to charter schools that have walls upon which a charter school could display religious objects and symbols. As indicated above, a charter school “may” be located in a building. In such cases, the charter school shall not display religious objects and symbols “on the premises.” However, this does not mean that every charter school must be located in a traditional “bricks and mortar” school building.¹³

D. Compulsory Attendance

Section 1715-A of the Law, 24 P.S. § 17-1715-A (emphasis added), provides, in pertinent part, as follows:

(9) A charter school shall provide a minimum of one hundred eighty (180) days of instruction or nine hundred (900) hours per year of instruction at the elementary level, or nine hundred ninety (990) hours per year of instruction at the secondary level. Nothing in this clause shall preclude the use of computer and satellite linkages for delivering instruction to students.

In other words, the legislature explicitly allows for cyber education to fulfill school attendance requirements, and the legislature does not limit the number of days or hours of cyber instruction per year.

Moreover, section 1703-A of the Law defines a charter school as “an independent public school ... in which students are enrolled or attend.” 24 P.S. § 17-1703-A (emphasis added). Thus, the legislature has made quite clear that some charter schools are not “attended.” Such charter schools simply “enroll” their students and deliver instruction to them via computer and satellite linkages.

ORDER

AND NOW, this 17th day of June, 2002, it is hereby ordered as follows:

1. Counts I, II and III of Petitioners’ second amended petition for review are dismissed based on this court’s lack of original jurisdiction over the withholding of subsidies by Charles B. Zobgy, Secretary of Education of the Commonwealth of Pennsylvania (Secretary).

2. Respondents’ preliminary objection to Count IV of the second amended petition for review is overruled.

3. The Secretary’s decision to withhold subsidies is vacated, and this case is remanded case to the Pennsylvania Department of Education (Department) so that the Department can provide an expedited opportunity for Petitioners to challenge the deductions, but without permitting a challenge to the legality of cyber charter schools.

Jurisdiction relinquished.

Concurring opinion by Judge PELLEGRINI.

Concurring and dissenting opinion by Judge SMITH-RIBNER, joined by McGINLEY and COHN, JJ.

Footnotes

1

. This case was reassigned to the authoring judge on May 7, 2002.

2

. Act of March 10, 1949, P.L. 30, added by section 1 of the Act of June 19, 1997, P.L. 225, as amended, 24 P.S. §§ 17-1701-A to 17-1732-A.

3

.The following cyber schools were named as Respondents: Western PA Cyber Charter School, chartered by the Midland Borough School District; Commonwealth Cyber Charter School, chartered by the School District of Lancaster, but later dropped as a party; T.E.A.C.H. Charter School, a/k/a Einstein Academy, chartered by the Morrisville School District; and Pennsylvania Virtual Charter School, chartered by the Norristown Area School District. Other cyber schools were not named as Respondents because, according to Petitioners, they operate differently from the named cyber schools, and no subsidies have been withheld on their account from the school districts.

4

. Where it unclear whether a governmental determination is reviewable pursuant to this court’s original or appellate jurisdiction, a petitioner may file a single petition for review seeking to invoke both the original and appellate jurisdiction of this court; however, the petitioner cannot be successful simultaneously on both jurisdictional theories. See 1 G. Ronald Darlington, et al., Pennsylvania Appellate Practice, 2d § 1502:11 (2001).

5

. 42 Pa.C.S. § 763. In general, section 763 gives this court exclusive jurisdiction over appeals from the final orders of government agencies.

6

. 42 Pa.C.S. § 761 (relating to this court’s original jurisdiction).

7

. 2 Pa.C.S. § 504.

8

. See section 702 of the Administrative Agency Law, 2 Pa.C.S. § 702 (stating that any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with appellate jurisdiction).

9

.See 42 Pa.C.S. § 7541(c)(3) (stating that declaratory relief is not available with respect to any proceeding involving an appeal from an order of a tribunal); Pittsburgh v. Conley, 126 Pa.Cmwlth. 306, 559 A.2d 613 (1989) (stating that injunctive relief is not available to a litigant who has a statutory remedy); and DeHart v. Horn, 694 A.2d 16 (1997) (stating that mandamus is not available to a petitioner who has other adequate remedies).

10

. When ascertaining the intent of the General Assembly, we may consider the consequences of a particular interpretation. Section 1921(c)(6) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(c)(6).

11

. Ordinarily, having determined that Petitioners lack standing to challenge the legality of cyber schools, our analysis would end here. However, we recognize that this matter is of grave importance and that an expeditious resolution is necessary to prevent an interruption in the education of students enrolled in cyber schools. Thus, assuming arguendo that our supreme court would find that Petitioners do have standing to challenge the legality of cy-ber schools, we have decided to complete our analysis of the issues that Petitioners have raised in their petition for review.

12

. We note that this reading is consistent with other-portions of section 1702-A of the Charter School Law that provide for the use of different and innovative teaching methods and for expanded choices in the types of educational opportunities available to parents and pupils. See 24 P.S. § 17-1702-A.

13

. To the degree that a computer screen might constitute a wall, the Charter School Law's prohibition against the display of religious objects and symbols would apply to a cyber school.