A.A. Wolk v. The Sch. Dist. of Lower Merion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arthur Alan Wolk, Philip Browndies, :
and Catherine Marchand :
:
v. : No. 1465 C.D. 2016
: Argued: November 12, 2019
The School District of Lower Merion, :
Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT FILED: March 2, 2020

On remand from the Pennsylvania Supreme Court, we consider the
merits of a preliminary injunction issued by the Court of Common Pleas of
Montgomery County (trial court) upon the petition of Arthur Alan Wolk, Philip
Browndies, and Catherine Marchand (collectively, Taxpayers). The injunction
barred the School District of Lower Merion (School District) from implementing a
4.44% tax increase for fiscal year 2016-2017 and, instead, limited the tax increase
to 2.4%. This Court affirmed the trial court’s grant of the injunction on the ground
that the School District had waived all issues on appeal. Wolk v. School District of
Lower Merion (Pa. Cmwlth., No. 1465 C.D. 2016, filed April 20, 2017)
(unreported). The Supreme Court reversed and directed this Court on remand to
address the merits of the School District’s appeal. Wolk v. School District of Lower
Merion, 197 A.3d 730 (Pa. 2018). After review, we affirm the trial court’s grant of
the preliminary injunction.
 Background
In 2016, Taxpayers initiated a class action on behalf of present and past
residents of Lower Merion, seeking $55,000,000 in damages plus interest and costs
against the School District. Taxpayers alleged that the School District
misrepresented its finances to the Pennsylvania Department of Education
(Department) and set up an illegal education program for teachers (Counts I-III).
Taxpayers sought to suspend the authority of the Lower Merion School Board
(School Board) to operate the School District and to replace it with a trustee (Counts
IV-V, XI); to impose a constructive trust over the School District’s surplus funds
(Count VI); to terminate certain employees for misconduct (Counts VII-VIII); to
appoint a Board of Viewers (Count IX); to revise the School District’s bond
refinance disclosures and transfer funds from the capital reserve fund to the general,
unreserved fund (Count X); and to declare the School District’s taxation system
unconstitutional because it taxes property owners without consideration of the
number of children a taxpayer has in the schools (Count XII).
The School District filed preliminary objections to the amended
complaint asserting that: (1) the claims raised nonjusticiable political questions; (2)
Taxpayers lack standing; (3) the claims were barred by the act commonly referred
to as the Political Subdivision Tort Claims Act;1 (4) Taxpayers failed to join
indispensable parties; (5) the amended complaint did not state a cause of action upon
which relief can be granted; (6) the amended complaint sought unconstitutional
relief; and (7) Taxpayers had an administrative remedy with the Department.
While the preliminary objections were pending, Taxpayers petitioned
for a preliminary injunction to enjoin the School District from implementing any tax

1
42 Pa. C.S. §§8541-8542.
2
increase for the 2016-2017 fiscal year in light of the prior years’ unlawful tax
increases. Taxpayers asserted that the injunction would not prejudice the School
District because it had accumulated a large surplus. The School District’s answer
denied the material allegations. The trial court conducted a hearing on June 14,
2016.
At the hearing, the School District informed the trial court that the
School Board had approved a 4.44% tax increase the previous evening, which
rendered the preliminary injunction moot. Taxpayers requested the trial court “to
address the merits of the case because [the] tax increase is absolutely illegal.” Notes
of Testimony, 6/14/2016, at 6 (N.T.__). The trial court permitted Taxpayers to
amend their petition to challenge the newly announced tax increase and present
evidence thereon.
Under the Taxpayer Relief Act,2 a school district can increase taxes up
to a point set by the statutory index, without having to put the increase to a vote by
the taxpayers. For the School District, the maximum increase was 2.4% for the
2016-2017 fiscal year.3 However, the School District had requested the Department
to allow it to raise taxes by 4.44% without taxpayer approval. In its application for
the exception, the School District projected a $9.3 million deficit for the 2016-2017
school year. On that basis, the Department approved the School District’s request
for an exception from the voter referendum, which authorized the School District to
increase real estate taxes to generate revenue “of no more than $4,051,213 over the
index.” Reproduced Record at 1541a (R.R. __).

2
Act of June 27, 2006, P.L. 1873, as amended, 53 P.S. §6926.333.
3
The amount of the tax increase in excess of 2.4% has been placed in escrow during this litigation.
3
 Taxpayers’ evidence showed that the School District had projected a
deficit for every fiscal year from 2009-2010 through 2015-2016; however, during
that period it accumulated a budget surplus of approximately $42.5 million. The
evidence showed that each year the School District underestimated its annual
revenue by approximately 1.1% and overestimated expected expenditures by
approximately 5.5%. Each fiscal year, the School District projected a budget deficit
that entitled it to an exception from the voter referendum otherwise required by the
Taxpayer Relief Act. Since 2006, the School District had increased taxes by 53.3%.
Taxpayers’ evidence also established that the School District regularly
transferred funds from its general, unreserved fund to its capital reserve fund.4
Absent that transfer, the School District would have had a general, unreserved fund
balance greater than the 8% limit imposed by Section 688 of the Public School Code
of 1949 (School Code).5 Since 2009-2010, the School District has annually certified
to the Department that its general fund balance would be less than 8% of its estimated

4
School District did not identify specific capital projects at the preliminary injunction hearing.
5
Act of March 10, 1949, P.L. 30, as amended, added by the Act of December 23, 2003, P.L. 304,
24 P.S. §6-688. Section 688(a) of the School Code states, in pertinent part, that
(a) For the 2005-2006 school year and each school year thereafter, no school
district shall approve an increase in real property taxes unless it has adopted a
budget that includes an estimated ending unreserved, undesignated fund balance
less than the percentages set forth [in Section 688(a)].
24 P.S. §6-688(a). Section 688(a) provides that for a school district with total budgeted
expenditures greater than or equal to $19 million, its estimated ending unreserved, undesignated
fund balance must be less than 8% of its total budgeted expenditures in order for the school district
to raise real property taxes. 24 P.S. §6-688(a). The School District’s total budgeted expenditures
ranged from $193 million to $258.9 million from fiscal year 2009-2010 through 2016-2017. R.R.
1232a. On the other hand, the capital reserve fund is not subject to statutory caps under the School
Code.
4
expenditures.6 The School District’s general fund transfers kept its general fund
balance below the 8% limit in the School Code. Taxpayers described the fund
transfers as a sham designed to avoid putting school tax increases to a vote by
residents.
Taxpayers presented two witnesses and documentary evidence,
including the School District’s proposed budgets for fiscal years 2008-2009 through
2016-2017 and budgetary comparison schedules prepared by certified public
accountants. This evidence demonstrated the discrepancies between the projected
deficits and the actual realized surpluses. The School District presented no
witnesses. Its documentary evidence consisted solely of its preliminary and final
budgets for fiscal year 2016-2017 and the Department’s letter approving the
District’s voter referendum exception. The School District argued that Taxpayers
did not establish the elements necessary for a preliminary injunction.
Trial Court Decision
On August 29, 2016, the trial court issued an injunction ordering the
School District to “adopt a resolution revoking the tax increase of 4.44% for fiscal
year 2016-2017, and enacting a tax that represents an increase of no more than 2.4%
greater than the tax in effect for fiscal year 2015-16.” Trial Court op. at 15-16.
Crediting Taxpayers’ evidence, the trial court reasoned as follows:

The School District’s accounting practices may not incur a
specific sanction of the statutes regulating them, but they are
skirting the purposes of the law to prevent school districts from
both accumulating a surplus over a certain percentage of the
annual budget and raising taxes over a certain level without going
to a referendum of the voters. The District’s legerdemain in

6
Section 688(b) of the School Code provides that a school district that approves an increase in real
property taxes shall provide the Department with information certifying compliance with Section
688 of the School Code. 24 P.S. §6-688(b).
5
 yearly projecting multimillion-dollar deficits in documents
required by law to be published to the voters and/or filed with the
Commonwealth and not disclosing that contrary to projections
the District every year experienced multimillion-dollar
surpluses, which it then transferred into other accounts, while
every year seeking and obtaining the Commonwealth’s
permission to raise taxes beyond what would ordinarily be
permitted without a referendum of the voters based on
questionable cost estimates, was less than the transparent
budgeting and taxing process the [] School Code and the
Taxpayer Relief Act sought painstakingly to institute. The
District’s tax increases in these circumstances violated the spirit,
and in some cases the letter, of these laws.
The remedy provided by the law for a school district’s repeatedly
and intentionally violating the intendment of the [] School Code
in budgeting and taxing practices is an injunction against the
practices….

***

Taxpayers and the public should be entitled to expect that
governmental units taxing them will not year after year pursuant
to a systematic pattern present them with projected deficits to
justify raising taxes, raise taxes as a consequence, then record
actual massive surpluses in the general fund at the end of each
fiscal year, only to transfer the surpluses into other, designated
accounts so that the source of the funds cannot be readily
determined by those not directly involved in the governmental
unit’s financial affairs. An injunction against this repeated
practice of the [] School District is the only appropriate remedy
to bring the illegal practice to a halt.

Trial Court op. at 14-15 (emphasis added).
The trial court did not identify its injunction as preliminary or
permanent. Notably, it directed Taxpayers to post a bond of $4,200 “[i]n the event

6
this injunction is construed as subject to Pa. R.C.P. [No.] 1531(b),[7]” and this rule
pertains to preliminary injunctions. Trial Court op. at 16. The trial court
acknowledged that its decision did not resolve all issues in the case, noting that
“preliminary objections were argued before another Judge” two weeks prior. Id. at
1. See also id. at 16 (declining “Plaintiffs’ requested relief of establishing a
constructive trust in favor of taxpayers who have already paid the unlawful increase
in taxes, pending determinations relating to the class-action status of this litigation”).
Implicitly, the trial court rejected the School District’s jurisdictional challenges.
Appeal
The School District appealed the trial court’s injunction to this Court.
Taxpayers moved to quash the School District’s appeal for failure to file a post-trial
motion in accordance with Pennsylvania Rule of Civil Procedure No. 227.1(c)(2),
(requiring filing of post-trial motions within 10 days after “the filing of the decision
in the case of a trial without a jury”). PA. R.C.P. No. 227.1(c)(2). This Court quashed
the School District’s appeal, holding that the trial court had in actuality issued a

7
Pennsylvania Rule of Civil Procedure No. 1531(b) states:
(b) Except when the plaintiff is the Commonwealth of Pennsylvania, a political
subdivision or a department, board, commission, instrumentality or officer of the
Commonwealth or of a political subdivision, a preliminary or special injunction
shall be granted only if
(1) the plaintiff files a bond in an amount fixed and with security
approved by the court, naming the Commonwealth as obligee,
conditioned that if the injunction is dissolved because improperly
granted or for failure to hold a hearing, the plaintiff shall pay to any
person injured all damages sustained by reason of granting the
injunction and all legally taxable costs and fees, or
(2) the plaintiff deposits with the prothonotary legal tender of the
United States in an amount fixed by the court to be held by the
prothonotary upon the same condition as provided for the injunction
bond.
PA. R.C.P. No. 1531(b) (emphasis added).
7
permanent injunction. By not filing a post-trial motion, the School District had
waived all issues raised in its appeal.
The School District filed a petition for allowance of appeal, which the
Supreme Court allowed on the question of whether a post-trial motion was required
or whether the School District could proceed with an interlocutory appeal as of right
under Pennsylvania Rule of Appellate Procedure 311(a)(4).8
Reversing this Court, the Supreme Court held that the School District’s
appeal was governed by Rule 311(a)(4), which authorizes an interlocutory appeal of
an order granting an injunction. PA. R.A.P. 311(a)(4). It held that the trial court’s
August 29, 2016, decision was not a “decision in the case” for purposes of
Pennsylvania Rule of Civil Procedure No. 227.1(c) because it did not dispose of all
claims for relief. It was not a permanent injunction. The Supreme Court was not,
“at this juncture, prepared to say” that a court may never convert a preliminary

8
Pennsylvania Rule of Appellate Procedure 311(a)(4) provides:
(a) General rule.—An appeal may be taken as of right and without reference to Pa.
R.A.P. 341(c) [regarding final orders] from:
***
(4) Injunctions.—An order that grants or denies, modifies or
refuses to modify, continues or refuses to continue, or dissolves or
refuses to dissolve an injunction unless the order was entered:
(i) Pursuant to 23 Pa. C.S. §§3323(f) [regarding
injunction issued in matrimonial causes], 3505(a)
[regarding injunction issued to prevent disposition of
property to defeat obligations]; or
(ii) After a trial but before entry of the final order.
Such order is immediately appealable, however, if
the order enjoins conduct previously permitted or
mandated or permits or mandates conduct not
previously mandated or permitted, and is effective
before entry of the final order.
PA. R.A.P. 311(a)(4).
8
injunction hearing into a permanent injunction hearing without the consent of the
parties. Wolk, 197 A.3d at 741-42. The Supreme Court concluded, however, that
such a scenario “should be infrequent.” Id. at 742.
The Supreme Court remanded the School District’s appeal to this Court
for consideration of the merits of the School District’s appeal of the preliminary
injunction.9
By order of March 8, 2019, this Court directed the parties to file
amended briefs or to notify this Court of their intent to rely upon their previous
briefs. All parties submitted amended briefs. The Pennsylvania State Education
Association (PSEA), Pennsylvania Association of School Administrators (PASA),
and the Pennsylvania Association of School Business Officials (PASBO) have
jointly filed an amended amicus curiae brief in support of the School District. The
Pennsylvania School Boards Association also filed an amended brief of amicus
curiae in support of the School District.
The School District raises three issues, which we have reordered for
purposes of our review. First, the School District argues that the trial court usurped
the authority of the Department to approve, or disapprove, an exception from the

9
On appeal from an order granting a preliminary injunction, our scope of review is “limited to
whether there were reasonable grounds for the action of the court below, and we will not consider
the merits of the case or pass upon reasons for or against such action, unless it is plain that no such
grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable.” Fox-
Morris Associates, Inc. v. Conroy, 333 A.2d 732, 733-34 (Pa. 1975). Where, as here, the
preliminary injunction appealed is mandatory in nature, which commands the performance of some
positive act to preserve the status quo, “we have insisted that a clear right to relief in the plaintiff
be established.” Mazzie v. Commonwealth, 432 A.2d 985, 988 (Pa. 1981). See also Shepherd v.
Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1241 (Pa. Super. 2011) (explaining that preventative
injunctions preserve the status quo by forbidding an act or acts, while mandatory injunctions
command the performance of some specific act that will maintain the relationship between the
parties).
9
voter referendum required for a tax increase in excess of the statutory index. Second,
the School District contends that the trial court lacked authority to issue a
preliminary injunction because preliminary objections raising questions of, inter
alia, jurisdiction had been filed and were awaiting a decision. Third, the School
District argues that Taxpayers did not meet the prerequisites for the issuance of a
preliminary injunction and, thus, the trial court’s injunction must be vacated.
PSEA, PASA, and PASBO’s amended brief of amici curiae echoes the
School District’s argument on justiciability. These associations emphasize that the
decisions of the elected board of school directors leave “no room for judicial
intervention.” PSEA Amended Amicus Curiae Brief at 6. The Pennsylvania School
Boards Association’s amended amicus curiae brief echoes the School District’s
argument that the trial court usurped the authority of the Department to review a
school district’s request for a referendum exception.
I. Taxpayers’ Motion to Strike Amended Briefs
Taxpayers have moved to strike the amended briefs of the School
District and of the amici curiae.10 Taxpayers point out that the School District makes
legal arguments involving the General Municipal Law11 and Section 1922 of the
Statutory Construction Act of 1972, 1 Pa. C.S. §1922. Motion to Strike at 3-5, ¶7.
These were not raised to the trial court. They further challenge the School District’s
citation to “matters on the internet,” such as election results, the Department’s
reports on referendum exceptions, and data of employer contributions to the Public
School Employees’ Retirement System (PSERS). Motion to Strike at 3-4, ¶7 (citing

10
See Order of May 9, 2019 (wherein this Court ordered disposition of the application to strike at
the same time as the merits of the appeal). Taxpayers also filed a “Motion for Sanctions, Referral
to the Pennsylvania Attorney General, and Referral to the Attorney Disciplinary Committee.” By
order of July 22, 2019, this Court denied Taxpayers’ motion.
11
Act of June 25, 1895, P.L. 275, as amended, 53 P.S. §§101-11703.8.
10
School District Amended Brief at 13-33). The record before the trial court lacks any
mention of those matters.
Likewise, Taxpayers challenge the amended amicus curiae briefs for
asserting facts outside the certified record. This includes information about the
elected School Board members and the number of votes they received. See PSEA
Amended Amici Curiae Brief at 15-18 and Appendix A.
The School District responds that it may cite new legal authorities that
were not cited below. It also argues that the “matters on the internet” it cited were
derived from “sources of unquestionable validity” and contain relevant information.
School District Memorandum of Law at 5. It argues that this Court “can and does
rely on both legislative facts and adjudicative facts.” Id. at 4. Likewise, it believes
the amended amici curiae briefs are proper because they “bring additional insight to
the questions before the Court.” Id. at 6 (citing PA. R.A.P. 531, Note).
The statutes cited by the School District all relate to its legal objection
to Taxpayers’ request for a preliminary injunction, i.e., that Taxpayers did not meet
the prerequisites for a preliminary injunction. That legal issue was raised and
preserved for review. Accordingly, there is no bar to the School District making
additional legal arguments on those preserved issues. Wert v. Department of
Transportation, Bureau of Driver Licensing, 821 A.2d 182, 186 n.10 (Pa. Cmwlth.
2003) (noting that Pennsylvania Rule of Appellate Procedure 302(a)12 requires that
“issues” be preserved, not “reasoning”).

12
Rule 302(a) states that “[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” PA. R.A.P. 302(a). In Wert, we explained:
We do not believe that Pa. R.A.P. 302(a) requires a litigant to make identical
arguments at each stage of his case. The issue must be preserved, but this does not
mean every argument is written in stone at the initial stage of litigation. Thus, logic
11
 The Statement of Facts in the School District’s amended brief refers
only briefly to the hearing record. School District’s Amended Brief at 23 and 26.
Instead, the School District’s Statement of Facts presents an extensive compilation
of news websites, the School District’s online portal, state and local governmental
reports and data publications. The School District presented no witnesses at the
preliminary injunction hearing.
Rule of Appellate Procedure 2117(a)(4) provides that the statement of
the case must contain a narrative statement of “all the facts which are necessary to
be known in order to determine the points in controversy, with an appropriate
reference in each instance to the place in the record where the evidence
substantiating the fact relied on may be found.” PA. R.A.P. 2117(a)(4) (emphasis
added). Only those facts that have been duly certified in the record on appeal may
be considered. Kochan v. Department of Transportation, Bureau of Driver
Licensing, 768 A.2d 1186, 1189 (Pa. Cmwlth. 2001). The School District offers no
explanation for not presenting these documents or relevant witness testimony at the
preliminary injunction hearing.
We deny Taxpayers’ motion to strike new legal authorities from the
School District’s amended brief but grant the motion to strike the Statement of Facts
in the amended brief to the extent it asserts facts outside the trial court’s certified
record. We also strike the arguments based upon those stricken factual statements.
We deny Taxpayers’ motion to strike the citations to new legal authorities from the
amended amici curiae briefs but grant the motion to strike parts of the amended

dictates that an appellant can raise new arguments so long as they relate to the same
issue.
Wert, 821 A.2d at 186 n.9 (internal citations omitted).
12
amici curiae briefs asserting facts outside the certified record and the arguments
made thereupon.
II. Preliminary Injunction Challenge
A. Trial Court’s Jurisdiction and Exhaustion of Remedies
The School District argues that the trial court usurped the authority of
the Department to approve, or disapprove, a request for an exception from the
requirement of a voter referendum on school tax increases in excess of the statutory
index. The School District contends that Taxpayers should have filed a complaint
with the Department and then appealed to this Court if they received an adverse
decision. Taxpayers counter that the Taxpayer Relief Act does not authorize such a
remedy, and, further, the trial court has the power to fashion an equitable remedy as
“necessary to protect taxpayers from the actions of the school districts.” Taxpayers’
Brief at 6. Those actions, according to Taxpayers, consisted of the School District’s
misrepresentation of its finances in order to avoid having to submit the desired tax
increase to a voter referendum.
“It is a cornerstone principle in equity that when the legislature provides
a statutory remedy, equity has no place.” Borough of Trappe v. Longaker, 547 A.2d
1311, 1313 (Pa. Cmwlth. 1988). It is also well established that “an administrative
agency has exclusive jurisdiction where the legislature has given it the power to
adjudicate on a particular subject matter.” Sunrise Energy, LLC v. FirstEnergy
Corp., 148 A.3d 894, 903 (Pa. Cmwlth. 2016). Stated otherwise, a statutory remedy
must be strictly pursued and this remedy “is exclusive unless the jurisdiction of the
courts is preserved thereby.” Lashe v. Northern York County School District, 417
A.2d 260, 264 (Pa. Cmwlth. 1980). As this Court further explained in Lashe:

Jurisdiction is the power of a court to enter into an inquiry on a
certain matter. A careful distinction must be made between
13
 subject matter jurisdiction, which we have just defined, and
equity jurisdiction, which describes the remedies available in
equity.

Id. at 263 (internal citations omitted). An adequate remedy at law means that “equity
may withhold its remedies.” Id. at 262. Further, where the “[l]egislature provides a
statutory remedy which is mandatory and exclusive, equity is without power to act.”
DeLuca v. Buckeye Coal Co., 345 A.2d 637, 640 (Pa. 1975).
Where an administrative agency lacks the competency to rule on a
question, such as the constitutionality of a statute it is charged to enforce, the
statutory remedy does not bar equitable relief. Accordingly, a challenge to the
constitutionality of a taxing statute may be initiated in equity, notwithstanding the
statutory remedy for challenging a tax assessment. Sunrise Energy, 148 A.3d at 902.
In such a scenario, there is less need for “the agency involved to throw light on the
issue through exercise of its specialized fact-finding function or application of its
administrative expertise.” Borough of Green Tree v. Board of Property Assessment,
Appeals and Review in Allegheny County, 328 A.2d 819, 825 (Pa. Cmwlth. 2004).
With these principles in mind, we turn to the School District’s
jurisdictional arguments.
Section 333(b)(l) of the Taxpayer Relief Act prohibits a school district
from “[i]ncreas[ing] the rate of a tax levied for the support of the public schools by
more than the index.” 53 P.S. §6926.333(b)(1). The Department calculates and
publishes the index on an annual basis. 53 P.S. §6926.333(l). The parties do not
dispute that for the fiscal year 2016-2017, the School District’s index was set at
2.4%.
A school district may raise taxes above the index by putting the increase
to “the electors of the school district” in a referendum “stating the specific rate or

14
rates of the tax increase,” which “a majority of the electors voting on the question
must approve.” Section 333(c)(1) of the Taxpayer Relief Act, 53 P.S.
§6926.333(c)(1). Alternatively, a school district may request an exception from the
referendum requirement “due to an expenditure under subsection (f)(2)(iii) or (v) or
(n) [relating to pension obligations, special education expenses, grandfathered debt,
and electoral debt].” Section 333(j)(1) of the Taxpayer Relief Act, 53 P.S.
§6926.333(j)(1). To obtain this exception, a school district must demonstrate to the
Department that “[t]he revenue raised by the allowable increase under the index is
insufficient to balance the proposed budget due to one or more of the expenditures
listed in [Section 333(f)(2)].” Section 333(f)(1) of the Taxpayer Relief Act, 53 P.S.
§6926.333(f)(1).
A school board that seeks to increase taxes above the statutory index
must adopt a preliminary budget proposal for estimated revenues, expenditures, and
proposed tax rates, and make the budget proposal available for public inspection. 53
P.S. §6926.331(b)-(c), 6926.333(j)(2). The school district must also submit this
information to the Department. 53 P.S. §6926.333(e).
Section 333(j)(3)-(4) of the Taxpayer Relief Act provides the following
standards for the Department’s review of a request for an exception:

(3) The department shall approve a school district’s request
under this subsection if a review of the data under paragraph (4)
demonstrates that:

(i) the school district qualifies for one or more
exceptions under subsection (f)(2)(iii) or (v) or (n);
and
(ii) the sum of the dollar amounts of the exceptions
for which the school district qualifies makes the
school district eligible under subsection (f)(1).

15
 (4) For purpose of determining the eligibility of a school district
for an exception under subsection (f)(2)(v), the department shall
utilize data from the most recent school years for which annual
financial report data required under section 2553 of the Public
School Code of 1949 has been received. The department shall
inform school districts of the school years determined under this
subsection no later than 30 days prior to the date on which public
inspection of proposed school budget is required under section
311(c).

53 P.S. §6926.333(j)(3)-(4). The Department “shall establish procedures for
administering the provisions of this subsection, which may include an administrative
hearing on the school district’s submission.” 53 P.S. §6926.333(j)(1). If the
Department schedules a hearing on the school district’s request, the school district
shall publish notice of the hearing “immediately upon receiving the information
from the [D]epartment.” 53 P.S. §6926.333(j)(2).
When the Department approves a school district’s request for a
referendum exception, with or without a hearing, the Department determines “the
dollar amount of the expenditure for which the exception is sought and the tax rate
increase required to fund the exception.” Section 333(j)(5)(ii) of the Taxpayer Relief
Act, 53 P.S. §6926.333(j)(5)(ii). If the Department denies a school district’s request
for an exception, there is no administrative appeal. The school district’s sole remedy
is to put its proposed tax increase to a vote of the electors. 53 P.S.
§6926.333(j)(5)(iii).13 The Taxpayer Relief Act does not establish a mechanism by
which a school district can challenge the Department’s denial of its exception. Nor

13
It states:
If the department denies the request, the school district may submit a referendum
question under subsection (c)(1). The question must be submitted to the election
officials no later than 50 days prior to the date of the election immediately
preceding the beginning of the school district's fiscal year.
53 P.S. §6926.333(j)(5)(iii).
16
does it provide a remedy to a taxpayer that wishes to challenge the Department’s
approval of an exception.
Here, the Department approved the exception for the 2016-2017 tax
increase based on the School District’s general fund budget showing it needed
$4,050,926 in excess of the tax revenue produced by the statutory index. The trial
court found that the School District overstated expenses and understated revenue in
order to obtain the exception and avoid a voter referendum. The trial court also
found that the School District did not disclose its actual prior year surpluses to the
Department in seeking the exception.
Neither the Taxpayer Relief Act nor the School Code provide a remedy
to challenge a school tax increase. The Administrative Agency Law14 and Local
Agency Law15 are likewise unavailing. Where an agency’s action “only affects the
interest of the public in general, then the action will not be deemed an adjudication.”
Ondek v. Allegheny County Council, 860 A.2d 644, 648 (Pa. Cmwlth. 2004)16
(holding that a resolution issued by county council was a legislative enactment from
which taxpayers have no right to appeal).17 A tax set by a school district is not an

14
2 Pa. C.S. §§501-508, 701-704.
15
2 Pa. C.S. §§551-555, 751-754.
16
Quoting LaFarge Corp. v. Insurance Department, 690 A.2d 826, 833 (Pa. Cmwlth. 1997), rev’d
on other grounds, 735 A.2d 74 (Pa. 1999).
17
For purposes of the Administrative Agency Law and the Local Agency Law, an “adjudication”
is defined as follows:
Any final order, decree, decision, determination or ruling by an agency affecting
personal or property rights, privileges, immunities, duties, liabilities or obligations
of any or all of the parties to the proceeding in which the adjudication is made. The
term does not include any order based upon a proceeding before a court or which
involves the seizure or forfeiture of property, paroles, pardons or releases from
mental institutions.
2 Pa. C.S. §101. Section 702 of the Administrative Agency Law provides that “[a]ny person
aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such
17
“adjudication” because it does not impact discrete parties but the public at large.
This is also the case for the Department’s approval of an exception. Only an
“adjudication” is reviewable under the Administrative Agency Law. 2 Pa. C.S.
§702.
Similarly, the Taxpayer Relief Act does not create a mechanism for
challenging the Department’s approval or disapproval of a school district’s
application. The school district whose exception is denied has only one recourse:
submit the proposed tax increase to the voters. Section 333(c) of the Taxpayer Relief
Act, 53 P.S. §6926.333(c). The Taxpayer Relief Act is silent on a challenge to the
Department’s approval of an exception to the voter referendum. The Department’s
stated public position is that it will not conduct an administrative hearing on its
approval of an exception.18
Nevertheless, the School District argues that Taxpayers have remedies
under the General Rules of Administrative Practice and Procedure (GRAPP).
GRAPP permits that “[a] person objecting to the approval of an application, petition,
motion or other matter which is, or will be, under consideration by an agency may

adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such
appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).” 2 Pa. C.S. §702.
Section 752 of the Local Agency Law likewise provides:
Any person aggrieved by an adjudication of a local agency who has a direct interest
in such adjudication shall have the right to appeal therefrom to the court vested with
jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and
judicial procedure).
2 Pa. C.S. §752. To the extent Taxpayers challenge the School Board’s decision to raise taxes by
4.44%, that action does not constitute an adjudication under the Local Agency Law. Ondek, 860
A.2d at 648.
18
Taxpayers have requested that this Court take judicial notice of the Department’s position, which
it set forth in a letter of November 22, 2017, stating that there is no hearing on the Department’s
decision on a request for an exception to a voter referendum. The statute, not the Department’s
stated position, is dispositive.
18
file a protest.” 1 Pa. Code §35.23. GRAPP also provides that “[a] person
complaining of anything done or omitted to be done by a person subject to the
jurisdiction of an agency, in violation of a statute or regulation administered or
issued by the agency may file a complaint with the agency.” 1 Pa. Code §35.9.
GRAPP is not a statutory remedy, and it is irrelevant to the School District’s
jurisdictional arguments.
GRAPP “governs the practice and procedure before agencies of the
Commonwealth except as otherwise provided[.]” 1 Pa. Code §31.1(a). A “protest”
filed under GRAPP does not require an agency to hold a hearing or to develop a
factual record. Indeed, the “filing of a protest does not make the protestant a party
to the proceeding,” which “is intended solely to alert the agency and the parties to a
proceeding of the fact and nature of the objection of the protestant to the proposed
agency action.” 1 Pa. Code §35.24. A protest has no effect beyond that achieved
by a letter to an agency.
More importantly, GRAPP does not create substantive rights. It
governs the procedures for conducting hearings that are created by statute. Neither
the Taxpayer Relief Act nor the Administrative Agency Law create a hearing for
challenging the School District’s

legerdemain in yearly projecting multimillion-dollar deficits in
documents required by law to be published to the voters and/or
filed with the Commonwealth and not disclosing that contrary to
projections the District every year experienced multimillion
dollar surpluses[.]

Trial Court op. at 14. GRAPP cannot be used to create substantive rights where none
exist under the applicable statutes.

19
 The Taxpayer Relief Act, the Public School Code and the
Administrative Agency Law do not create a remedy for the taxpayer who asserts a
school district has engaged in legerdemain to avoid putting a school tax increase to
the voters in a referendum. Even if there were such a remedy, it must be “adequate
and complete” to avoid equitable relief. Borough of Greentree, 328 A.2d at 825.
Simply, there is no statute that speaks to the harm alleged by Taxpayers,
i.e., the School District’s projection of deficits and disguise of prior year surpluses
to avoid giving residents the opportunity to vote on a school tax increase. We reject
the School District’s contention that Taxpayers should have made their case to the
Department and that the trial court erred in exercising equitable jurisdiction to
fashion an interim remedy, pending the outcome of a full review of Taxpayers’
underlying complaint.
B. Pending Preliminary Objections
The School District argues, next, that the trial court erred by holding a
preliminary injunction hearing when preliminary objections to the amended
complaint were pending. Taxpayers counter that the trial court did not err and that,
implicitly, the trial court believed it had jurisdiction.
This issue is not listed in the School District’s statement of the
questions presented for appeal. This is required by Rule 2116(a) (“No question will
be considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”). PA. R.A.P. 2116(a). “This rule is to be considered in the
highest degree mandatory, admitting of no exception; ordinarily no point will be
considered which is not set forth in the statement of questions involved or suggested
thereby.” Wirth v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014). The School
District’s issue has been waived.

20
 Even if the issue were not waived, the School District’s argument lacks
merit. The law does not bar the issuance of a preliminary injunction merely because
preliminary objections are pending. In Aitkenhead v. Borough of West View, 397
A.2d 878 (Pa. Cmwlth. 1979), for example, the trial court granted the plaintiff a
preliminary injunction while the defendant’s preliminary objections raising a
question of jurisdiction were pending. This Court opined that the action of the court
in granting the injunction is a decision in favor of jurisdiction, but only insofar as
the preliminary injunction is issued to maintain the status quo. Id. at 880. In other
words, “the preliminary objections have been considered by the [trial court] only for
the purpose of determining whether or not a preliminary injunction should issue.”
Id.
A preliminary injunction is not conclusive. It is a “temporary remedy
granted until that time when the parties’ dispute can be completely resolved.”
Chipman ex rel. Chipman v. Avon Grove School District, 841 A.2d 1098, 1101 (Pa.
Cmwlth. 2004). We conclude that the trial court’s issuance of a preliminary
injunction was not barred by the mere filing of preliminary objections by the School
District.
C. Elements of Preliminary Injunction
Finally, the School District argues that Taxpayers did not establish the
prerequisites for the issuance of a preliminary injunction, and thus, the trial court’s
decision must be vacated. Taxpayers counter that the trial court issued a permanent
injunction, which was narrowly drawn and consistent with “the long line of tax cases
that have uniformly held an injunction is the proper remedy for an abusive, illegal

21
tax scheme.” Taxpayers Brief at 22. Taxpayers further argue that they have
established all the prerequisites for a preliminary injunction.19
Appellate review of a preliminary injunction is “highly deferential” and
is limited to determining whether the trial court abused its discretion. Summit Town
Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003). Our
Supreme Court has expounded on this deferential standard of review as follows:

[W]e recognize that on appeal from the grant or denial of a
preliminary injunction, we do not inquire into the merits of the
controversy, but only examine the record to determine if there
were any apparently reasonable grounds for the action of the
court below. Only if it is plain that no grounds exist to support
the decree or that the rule of law relied upon was palpably
erroneous or misapplied will we interfere with the decision of the
[trial court].

Id. (citations omitted) (emphasis added). “If the record supports the trial court’s
reasons and factual basis, the court did not abuse its discretion.” Commonwealth ex
rel. Corbett v. Snyder, 977 A.2d 28, 41 (Pa. Cmwlth. 2009). In addition, “the facts
are to be viewed in a light most favorable to the winner at the trial court level.” Id.
There are six essential prerequisites to a preliminary injunction. The
moving party must establish (1) an injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated by damages; (2) greater
injury will result from refusing an injunction than from granting it and,
concomitantly, that issuance of an injunction will not substantially harm other
interested parties; (3) a preliminary injunction will properly restore the parties to

19
We reject Taxpayers’ contention that the trial court has granted a permanent injunction. The
Supreme Court’s holding that the trial court issued a preliminary injunction is binding on this
Court. Wolk, 197 A.3d at 741-42.

22
their status as it existed immediately prior to the alleged wrongful conduct; (4) a
clear right to relief; (5) the injunction is reasonably suited to abate the alleged harm;
and (6) issuance of an injunction will not adversely affect the public interest. Summit
Town Centre, 828 A.2d at 1001.
For purposes of injunctive relief, statutory violations constitute
irreparable harm per se. Pennsylvania Public Utility Commission v. Israel, 52 A.2d
317 (Pa. 1947). In Israel, the Public Utility Commission filed suit seeking to enjoin
a transportation company from operating gypsy taxicabs because the company did
not possess a certificate of public convenience as required by Section 903 of the
Public Utility Law, then in effect.20 The company admitted a violation of the statute
but asserted that its unlicensed taxicab service did not create a harm; to the contrary,
it provided a valued service because there was a shortage of taxicabs in Philadelphia.
In rejecting the company’s argument, the Supreme Court stated:

At the hearing the Commonwealth has made a prima facie
showing that the defendants are operating taxicabs in violation
of law. The argument that a violation of law can be a benefit to
the public is without merit. When the Legislature declares
certain conduct to be unlawful it is tantamount in law to calling
it injurious to the public. For one to continue such unlawful
conduct constitutes irreparable injury….

The argument that there is no “irreparable damage,” would not
be so often used by wrongdoers, if they would take the trouble to
observe that the word “irreparable” is a very unhappily chosen
one, used in expressing the rule that an injunction may issue to
prevent wrongs of a repeated and continuing character, or which
occasion damages which are estimable only by conjecture and
not by any accurate standard. Besides this, where the right

20
Formerly Section 903 of the Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. §1343. A
substantially similar provision is now codified at Section 502 of the Public Utility Code, 66 Pa.
C.S. §502.
23
 invaded is secured by statute ... there is generally no question of
the amount of damage, but simply of the right.

Israel, 52 A.2d at 321 (internal quotations omitted) (emphasis added). The Supreme
Court affirmed the issuance of a preliminary injunction. See also Milk Marketing
Board v. United Dairy Farmers Co-op Association, 299 A.2d 191 (Pa. 1973);
Snyder, 977 A.2d 28.
The trial court found that the School District misrepresented its
revenues and expenditures to the Department in order to increase taxes without
putting it to a voter referendum, which conduct violated the Taxpayer Relief Act.
Trial Court op. at 14-15. Further, the School District had accumulated surplus in
excess of the 8% permitted by Section 688(a) of the School Code, 24 P.S. §6-688(a).
Statutory violations constitute irreparable harm per se, which relieved the trial court
of undertaking the balance of the harm inquiry. Israel, 52 A.2d at 321. In any case,
the School District’s accumulated surplus of approximately $42.5 million from fiscal
year 2009-2010 through 2015-2016 far exceeds the amount of the tax increase halted
by the preliminary injunction, i.e., $4,051,213.
A preliminary injunction is appropriate where it restores the parties to
the status quo that existed prior to the alleged wrongful conduct. Israel, 52 A.2d at
321. The trial court’s preliminary injunction restores the parties to where they were
before the School District’s 4.44% tax increase. Ambrogi v. Reber, 932 A.2d 969,
979 (Pa. Super. 2007) (noting that an injunction addresses the status quo as it existed
between the parties before the event that gave rise to the lawsuit, not to the situation
as it existed after the alleged wrongful act but before entry of the injunction).
For a right to be clear, it must be “more than merely viable or
plausible;” however, this requirement is not the equivalent of stating that no factual
disputes exist between the parties. Ambrogi, 932 A.2d at 980. The party seeking a
24
preliminary injunction “need not prove the merits of the underlying claim, but need
only show that substantial legal questions must be resolved to determine the rights
of the parties.” Snyder, 977 A.2d at 43.
Here, the trial court found that the School District’s “legerdemain” in
repeatedly projecting multimillion-dollar deficits in order to obtain the Department’s
approval of its exception, while each year experiencing multimillion-dollar surpluses
that it moved into other accounts, violated the Taxpayer Relief Act and the Public
School Code. The School District argues that a trial court may not act as a “super
school board” to interfere with a school district’s discretion. School District Brief
at 51. However, a “preliminary injunction interfering with that discretion is
appropriate where a school board” acts in violation of law. Save Our School v.
Colonial School District, 628 A.2d 1210, 1211-12 (Pa. Cmwlth. 1993).
We do not determine the merits of the underlying controversy. The
proper question is whether Taxpayers produced sufficient evidence to show that
“substantial legal questions must be resolved to determine the rights of the parties.”
Snyder, 977 A.2d at 43. Given our highly deferential review, we conclude that the
injunction is reasonably suited to abate the alleged harm because the School District
was allowed to implement the 2.4% tax increase for fiscal year 2016-2017,
notwithstanding Taxpayers’ assertion that the statutory index was based on prior tax
increases that were also unlawfully based on accounting practices that amounted to
legerdemain.
For all these reasons, we conclude that the trial court had reasonable
grounds upon which to enjoin the School District from implementing a 4.44% tax
increase for fiscal year 2016-2017 and to limit the tax increase to 2.4%.

25
 Conclusion
We deny Taxpayers’ motion to strike new legal authorities from the
School District’s amended brief and the amended amici curiae briefs, but grant the
motion to strike the School District’s amended brief and the amended amici curiae
briefs to the extent they assert facts outside the trial court’s certified record, as well
as the arguments made from the stricken material.
We further conclude that the trial court had jurisdiction to issue the
preliminary injunction because neither the School Code nor the Local Agency Law
provide a statutory remedy to correct the alleged misconduct of the School District.
Likewise, the Taxpayer Relief Act provides no statutory appeal from the
Department’s approval of a referendum exception. We reject the claim of the School
District that the doctrine of exhaustion of administrative remedies barred the trial
court’s preliminary injunction.
For these reasons, we affirm the trial court’s order of August 29, 2016,
and remand this matter to the trial court for further proceedings on the underlying
complaint.21
_____________________________________
MARY HANNAH LEAVITT, President Judge

21
The docket includes a number of motions for judicial notice filed by Taxpayers, including
“Appellees’ motion to take judicial notice of Pennsylvania Department of Education letter dated
May 6, 2019 and official statements of Pennsylvania Department of Education Division of Subsidy
Data and Administration Chief given to NBC news” (filed 5/14/2019); “Appellees’ motion to take
judicial notice of Pennsylvania Department of the Auditor General report of the Lower Merion
School District dated October 23, 2017” (filed 5/28/2019); and “Appellees’ motion to take judicial
notice of Pennsylvania Department of Education letter dated November 22, 2017” (filed
6/21/2019). All of the motions for judicial notice shall be dismissed because they are immaterial.
26
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arthur Alan Wolk, Philip Browndies, :
and Catherine Marchand :
:
v. : No. 1465 C.D. 2016
:
The School District of Lower Merion, :
Appellant :

ORDER

AND NOW, this 2nd day of March, 2020, the order of Montgomery
County Court of Common Pleas, dated August 29, 2016, is hereby AFFIRMED.
This matter is REMANDED to the Court for further proceedings on the underlying
complaint.
Consistent with the foregoing opinion, Appellees’ motion to strike
Appellant’s amended brief and the amended amici curiae briefs is DENIED in part
and GRANTED in part. Appellees’ motions for judicial notice are DISMISSED.
Jurisdiction relinquished.

_____________________________________
MARY HANNAH LEAVITT, President Judge