Propel Charter Schools v. PA Dept. of Education and State Charter School Appeal Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Propel Charter Schools, :
Petitioner :
:
v. :
:
Pennsylvania Department of Education :
and State Charter School Appeal Board, : No. 1826 C.D. 2019
Respondents : Argued: October 13, 2020

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY
JUDGE COVEY FILED: November 20, 2020

Propel Charter Schools (Propel) petition this Court for review of the
State Charter School Appeal Board’s (CAB) November 27, 2019 order (Order)
denying Propel’s Motion to Allow Vote of 3-1 in this Matter as Proper (Motion).
There are two issues before this Court: (1) whether CAB’s Order is an appealable
collateral order; and (2) whether CAB’s 3-1 vote is proper.

Facts
Propel is a Pennsylvania nonprofit corporation that operates a number of
individual charter schools in Pennsylvania. On May 7, 2018, Propel filed an
Application for Consolidation (Application) with the Pennsylvania Department of
Education (PDE), wherein Propel sought to consolidate eight Propel charter schools1
as a single Multiple Charter School Organization (MCSO) pursuant to Section

1
The individual schools are: Propel Charter School - Homestead; Propel Charter School -
East; Propel Charter School - McKeesport; Propel Charter School - Montour; Propel Charter School
- Sunrise (operating as Propel Charter School - Braddock Hills); Propel Charter School - Northside;
Propel Charter School - Pitcairn; and Propel Charter School - Hazelwood.
1729.1-A of the Charter School Law (CSL),2 24 P.S § 17-1729.1-A. On June 20,
2018, the PDE issued a letter denying Propel’s Application. On July 16, 2018, Propel
appealed from the denial to CAB.
The PDE Secretary appointed a Hearing Officer in the matter. On
January 29, 2019, PDE filed a Motion to Supplement the Record (Motion to
Supplement). On February 8, 2019, Propel filed a Brief in Opposition thereto. On
March 19, 2019, the Hearing Officer granted PDE’s Motion to Supplement. On
March 28, 2019, Propel filed a direct appeal to CAB from the Hearing Officer’s order
allowing the record to be supplemented. Both the appeal from the Hearing Officer’s
decision to permit PDE to supplement the record and the direct substantive appeal
were argued before CAB on May 21, 2019. CAB voted 4-0 to deny Propel’s appeal
from the Hearing Officer’s order allowing the record to be supplemented, and the
matter proceeded to argument.
CAB consists of seven members: “the [PDE] Secretary . . . and six []
members who shall be appointed by the Governor by and with the consent of a
majority of all the members of the Senate.” Section 17-1721-A(a) of the CSL, 24
P.S. § 17-1721-A(a). However, due to a long-standing vacancy, there are currently
only six sitting CAB members. Consequently, because the CSL defines a quorum as
“[a] majority of the members of [CAB],” 24 P.S § 17-1721-A(b), four members
constitute a quorum.
At CAB’s June 18, 2019 meeting, CAB Member Lee Ann Munger (CAB
Member Munger) recused from the vote because her children attend Propel. In
addition, the PDE Secretary recused himself from the vote, leaving four CAB
members, which was sufficient to constitute a quorum. CAB voted 3-1 to deny

2
Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of June 19,
1997, P.L. 225, 24 P.S. §§ 17-1701-A – 17-1751-A. Section 1729.1-A of the CSL was added by
Section 10 of the Act of November 6, 2017, P.L. 1142.

2
Propel’s substantive appeal from PDE’s denial of Propel’s Application. However,
CAB tabled the matter because CAB determined, in accordance with its interpretation
of the CSL, that the 3-1 vote did not constitute a valid CAB action, since a majority
of the six CAB members did not vote unanimously. CAB tabled the matter for a
revote at the next CAB meeting in July.
On July 24, 2019, with the PDE Secretary’s and CAB Member Munger’s
recusals, the same four CAB members again voted on the substantive appeal resulting
in another 3-1 vote, which CAB did not recognize as a valid CAB action. CAB once
more tabled the matter. On September 6, 2019, Propel filed a Motion to Permit CAB
Member Munger to Vote (Motion to Permit CAB Member Munger to Vote). CAB
counsel held a conference call with all of the parties to discuss Propel’s Motion to
Permit CAB Member Munger to Vote. On September 16, 2019, PDE filed its
response in opposition thereto. Propel withdrew its Motion to Permit CAB Member
Munger to Vote on September 25, 2019.
Also on September 25, 2019, Propel filed the instant Motion. On
October 7, 2019, PDE filed its response thereto. At the October 22, 2019 CAB
meeting, the Motion was argued and voted upon by the same four participating CAB
members who voted 4-0 to deny Propel’s Motion resulting in the Order.3 Propel
appealed to this Court.4 By January 16, 2020 order, this Court directed the parties to
address the appealability of the November 27, 2019 Order in their principal briefs on
the merits or other appropriate motion.5

3
CAB issued its written decision on November 27, 2019.
4
“Our review of [] CAB’s decision is limited to determining whether constitutional rights
were violated, whether [] CAB committed an error of law, or whether [] CAB’s decision is
supported by substantial evidence.” Insight PA Cyber Charter Sch. v. Dep’t of Educ., 162 A.3d
591, 594 n.3 (Pa. Cmwlth. 2017).
5
No other motion was filed.
3
 Collateral Order
Initially, Pennsylvania Rule of Appellate Procedure (Rule) 313 provides:

(a) General rule. An appeal may be taken as of right from
a collateral order of an administrative agency or lower
court.
(b) Definition. A collateral order is an order separable
from and collateral to the main cause of action where the
right involved is too important to be denied review and the
question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.

[T]he collateral order doctrine permits an appeal as of right
from a non-final collateral order if the order satisfies the
three requirements set forth in Rule 313(b). With regard to
the first prong of the collateral order doctrine, an order is
separable from the main cause of action if it is ‘entirely
distinct from the underlying issue in the case’ and if ‘it can
be resolved without an analysis of the merits of the
underlying dispute.’ Commonwealth v. Blystone, . . . 119
A.3d 306, 312 ([Pa.] 2015) (internal quotation marks
omitted).

Support Ctr. for Child Advocs. v. Dep’t of Hum. Servs., 189 A.3d 497, 500 (Pa.
Cmwlth. 2018) (quoting K.C. v. L.A., 128 A.3d 774, 778 (Pa. 2015)).
Here, the issue in the underlying dispute is whether PDE erred by
denying Propel’s Application, i.e., whether Propel was permitted to consolidate its
charter schools as an MCSO. The November 27, 2019 Order currently before this
Court denied Propel’s Motion seeking to deem a 3-1 CAB vote proper. As this issue
is entirely distinct from the issue of whether PDE properly denied Propel’s
Application, and can be resolved without analyzing whether Propel was permitted to
consolidate its charter schools as an MCSO, it is “separable from the main cause of
action” and, thus, satisfies “the first prong of the collateral order doctrine.” Support
Ctr. for Child Advocs., 189 A.3d at 500 (quoting K.C., 128 A.3d at 778).

4
 [W]ith respect to the second prong of the doctrine, the
importance prong, a right is important if ‘the interests that
would go unprotected without immediate appeal are
significant relative to the efficiency interests served by the
final order rule.’ [Commonwealth v.] Williams, . . . 86 A.3d
[771,] 782 ([Pa.] 2014). Notably, the rights involved must
implicate more than just the individual parties in the matter,
and, instead, must be ‘deeply rooted in public policy going
beyond the particular litigation at hand.’ Blystone, . . . 119
A.3d [at 306,] (internal quotation marks omitted).

Support Ctr. for Child Advocs., 189 A.3d at 500-01 (quoting K.C., 128 A.3d at 779).
Here, the 3-1 vote halting CAB’s ability to rule on Propel’s appeal is at
least, in part, due to a long-standing vacancy. A governmental system that is non-
operational because no mechanism exists to overcome such obstacles prevents the
public from being able to act. Propel is not the only charter school affected by such
votes. Further, vacancy problems affecting quorums are not unique to CAB. Any
quasi-judicial agency requiring a quorum for official action, which suffers vacancies
and recusals, will be subject to the same indefinite postponements Propel now faces.
Because a decision on the issue of whether a quorum or a majority of the quorum
number is needed for a board to take official action “has the potential to extend well
beyond the confines of this particular case, the right involved is too important to be
denied review, [thereby] satisfying the second prong.” Twp. of Worcester v. Office of
Open Recs., 129 A.3d 44, 56 (Pa. Cmwlth. 2016).
Lastly, we turn to the third prong: whether “the question presented is
such that if review is postponed until final judgment in the case, [Propel’s] claim will
be irreparably lost.” Pa.R.A.P. 313. “[A] claim will be ‘irreparably lost’ if review is
postponed only if it can be shown the issue involved will not be able to be raised on
appeal, if [the] appeal is delayed.” Brophy v. Phila. Gas Works Phila. Facilities
Mgmt., 921 A.2d 80, 87 (Pa. Cmwlth. 2007). Here, if CAB continues to table the
matter until a 4-0 vote occurs, once that vote transpires, Propel’s claim that the 3-1

5
vote should stand will be moot. The only appealable order will be the order wherein
CAB garnered four unanimous votes. If the 4-0 vote favors Propel, Propel will have
no reason to appeal. In addition, if Propel does not prevail, it may appeal from the
substance of the vote, but not whether the original 3-1 vote denying its appeal was
proper. “Accordingly, as [Propel’s] appeal satisfies each of the three elements of the
collateral order doctrine, we conclude that [CAB’s O]rder denying [Propel’s Motion]
is an appealable collateral order as of right under Rule 313 . . . .” Support Ctr. for
Child Advocs., 189 A.3d at 500-01 (quoting K.C., 128 A.3d at 781).

Merits
Propel argues CAB’s 3-1 vote was proper. Specifically, Propel contends
that the common law rule applies to CAB, and pursuant to the common law rule,
where a majority of the quorum votes in favor of a particular decision, that decision
constitutes a final action. Thus, Propel asserts that the recusal of two CAB members
in the within matter rendered those individuals as not counting toward a quorum or
voting requirement. PDE and CAB (collectively, Respondents) rejoin that this Court
must uphold the November 27, 2019 Order based on the plain meaning of Section
1721-A(b) of the CSL.
Section 1721-A(b) of the CSL provides:

[CAB] shall meet as needed to fulfill the purposes provided
in this subsection. A majority of the members of [CAB]
shall constitute a quorum, and a majority of the
members of [CAB] shall have authority to act upon any
matter properly before [CAB]. [CAB] is authorized to
establish rules for its operation.

24 P.S § 17-1721-A(b) (emphasis added).
Respondents cite Keystone Central School District v. Sugar Valley
Concerned Citizens, 799 A.2d 209 (Pa. Cmwlth. 2002), to support their position. The

6
Keystone Court determined that a 3-3 vote was not a valid CAB action because a
majority of CAB did not agree. Therein, CAB tabled a 3-3 vote as a non-decision,
and did not enter an order until the next vote when the deadlock was broken. The
issue before the Court was whether a 3-3 tie constituted an affirmance or was simply
the absence of a decision. The Keystone Court held that, “because [] CAB ultimately
reached a vote that broke the deadlock[] and, since [] CAB entered an order based
upon that vote, [] CAB sufficiently resolved the matter.” Keystone, 799 A.2d at 215.
Accordingly, Keystone is distinguishable and thus inapposite.
Propel maintains that this Court should apply the common law rule and,
in support, cites Ronald H. Brown Charter School v. Harrisburg City School District,
928 A.2d 1145 (Pa. Cmwlth. 2007), wherein this Court explained:

Unless there is contrary legislative intent to the common
law rule requiring a vote of a full body to be valid, all that
is needed is a majority of a quorum to take action; not
that all the members of the Board must vote who are
authorized but are not seated.

Id. at 1147 (emphasis added). The Ronald H. Brown Charter School Court further
found that “nothing in Section 1721-A of the [CSL] indicates that the General
Assembly intended to abrogate the common law rule that a majority is determined by
the number currently serving, not the total number of appointments that could be
made to [CAB].” Id. at 1150.

[O]ur Supreme Court explained the common law rule and
the policy reasons behind the rule as follows:
In determining the number of votes necessary for a
deliberative body to take official action,
Pennsylvania follows the common law rule. Under
the common law rule[,] so long as a quorum is
present at a meeting, all that is required is that the
highest vote be equal to a majority of the quorum
number, even though the highest vote constitutes
only a plurality of all the legal votes cast. This is

7
 true even if more than the quorum number is present
at the meeting. For example, if there are seven
members of a body and four of those members
constitute a quorum and attend a meeting, a majority
of the four, which would be three, is necessary to
take official action of any kind. Even if all seven
members, more than the necessary quorum of four,
attend the meeting, the same number of votes,
namely three, is all that is necessary to take official
action if that is the highest number of votes cast
(plurality) in a given matter. Thus, if the minimum
quorum of four is present, and the vote on a
particular proposal is 3 in favor and 1 against, the
proposal is adopted. If all seven members of the
body attend and the vote on a particular proposal is
3 in favor, 1 against and 3 abstentions, the proposal
is likewise adopted by the plurality vote.

Ronald H. Brown Charter Sch., 928 A.2d at 1147-48 (citations omitted) (quoting
DiGiacinto v. City of Allentown, 406 A.2d 520, 522 (Pa. 1979)).

Under this common law rule, in a seven-person body, the
highest number of votes necessary to take official action is
not dependent upon the fortuity of whether 4, 5, 6, or 7
members choose to attend the meeting so long as the
minimum quorum number is present. If the rule were
otherwise, a member could attend the meeting and abstain
from voting and have a different effect than if that person
were absent from the meeting. The common law rule does
not permit a member to attend and abstain from voting and
yet demand that the highest number of votes required to
take official action be more than if that member had been
absent. This Court has previously observed that a member
who attends a meeting and abstains can have the same
paralytic effect as one who is absent: ‘[O]ne or a relatively
few persons could, by their intentional absence from, or by
their presence at a meeting and their failure to vote, or their
casting a blank or illegal ballot, block indefinitely an
important election or important legislation and thus
paralyze government with obviously great harm to the
public interest.’ Meixell v. Borough Council of Borough of
Hellertown, . . . 88 A.2d 594, 596 [(Pa. 1952).]

8
Ronald H. Brown Charter Sch., 928 A.2d at 1148 (emphasis omitted) (quoting
DiGiacinto, 406 A.2d at 522 (emphasis added)).

It is well established that ‘statutes are not presumed to make
changes in the rules and principles of the common law or
prior existing law beyond what is expressly declared in their
provisions.’ Carrozza v. Greenbaum, . . . 916 A.2d 553,
566 ([Pa.] 2007) (quoting Commonwealth v. Miller, . . . 364
A.2d 886, 887 ([Pa.] 1976)). Thus, the Court will not
disturb established legal principles without express
direction from the [l]egislature Carrozza, 916 A.2d at 565-
66.

Everhart v. PMA Ins. Grp., 938 A.2d 301, 307 (Pa. 2007). “In order to abrogate a
common[ ]law principle, the statute must ‘speak directly’ to the question addressed
by the common law.” In re Rodriguez, 900 A.2d 341, 345 (Pa. 2003) (quoting United
States v. Texas, 507 U.S. 529, 534 (1993)).
The question addressed by the common law rule is whether a quorum or
a majority of the quorum is needed for a deliberative body to take official action.
Section 1721-A(b) of the CSL states: “[a] majority of the members of [CAB] shall
constitute a quorum, and a majority of the members of [CAB] shall have authority to
act upon any matter properly before [CAB].” 24 P.S § 17-1721-A(b). The first half
of this sentence defines a CAB quorum, i.e., a majority of the CAB members is a
quorum, and the second half of the sentence explains that the quorum is required in
order for CAB to act. It directs CAB on how many members are required to hear an
appeal, i.e., a quorum, but not how many members must agree to decide the appeal.
Thus, Section 1721-A(b) is silent on the question of whether a quorum or a majority
of the quorum is needed for CAB to decide the appeal. Because “nothing in Section
1721-A[(b)] of the [CSL] indicates that the General Assembly intended to abrogate
the common[ ]law rule[,]” the common law rule applies. Ronald H. Brown Charter
Sch., 928 A.2d at 1150. Accordingly, CAB’s 3-1 vote in this matter was proper.

9
 Conclusion
Because this Court concludes that CAB’s 3-1 vote in this matter was
proper, CAB’s November 27, 2019 Order is reversed. Propel shall have 30 days from
the date of this Court’s Order to appeal from CAB’s denial of Propel’s substantive
appeal.

___________________________
ANNE E. COVEY, Judge

10
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Propel Charter Schools, :
Petitioner :
:
v. :
:
Pennsylvania Department of Education :
and State Charter School Appeal Board, : No. 1826 C.D. 2019
Respondents :

ORDER

AND NOW, this 20th day of November, 2020, the State Charter School
Appeal Board’s (CAB) November 27, 2019 order is reversed. Propel Charter Schools
(Propel) shall have 30 days from the date of this Court’s Order to appeal from CAB’s
denial of Propel’s substantive appeal.

___________________________
ANNE E. COVEY, Judge