Pennsylvania School Boards Ass'n v. Zogby

Concurring and dissenting opinion by

Judge SMITH-RIBNER.

I fully agree with the Majority decision to overrule Respondents’ preliminary objection to Count IV of the petition for review, which asserted that withholding of state education subsidies from the School Districts was not an adjudication. See Boyertown Area School District v. Department of Education, 797 A.2d 421 (Pa.Cmwlth. 2002)1. I also agree with the decision to dismiss Count II (injunctive relief) and Count III (mandamus relief) of the petition for review.

I dissent, however, from the decision to dismiss Count I of the petition for review seeking declaratory judgment relief and to sustain Respondents’ preliminary objection raising Petitioners’ lack of standing to file their declaratory judgment action and preliminary objection in the nature of a demurrer for failure of Petitioners to state a claim for relief. The Majority bases its decision on an especially narrow reading of the appeals provision within the Charter School Law, 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—17-1732-A, to deny Petitioners standing, and it does not follow the standards for reviewing preliminary objections in the nature of a demurrer. This case is not about whether Petitioners may appeal from the decisions of other school districts to grant charters to the “cyber” charter schools (hereafter cyber schools). Rather it is about the fundamental right of adversely affected School Districts to seek a judicial declaration of the existing state of the law relative to the Secretary of Education withholding state education subsidies from School Districts and paying those funds to cyber schools, i.e., whether this is deemed to be illegal under existing law.2

*14As an initial matter, I emphatically disagree with the conclusion that this Court may not entertain claims in its original and in its appellate jurisdiction when the issues in each are separate and distinct. The Rules of Appellate Procedure do not provide that an original jurisdiction action may not be filed with a related appellate jurisdiction action, and the Court frequently has entertained petitions for review invoking both the Court’s original and appellate jurisdiction. See, e.g., Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996) (noting that petition for review filed in Commonwealth Court invoked original jurisdiction seeking a mandamus and also invoked appellate jurisdiction seeking review of alleged adjudication in termination of employee).3 The Majority is correct that a party may not succeed in both original and appellate jurisdiction as to the same claim. However, because the question of the legality of the cyber schools may not be decided in a hearing before the Secretary, see Boyertown, Petitioners’ claim in that regard is separate. The fact that the legislature has not expressly provided a procedure for challenging the legality of cyber schools does not mean that the Court may not judicially determine the issue. Rather, this is precisely the type of question that is properly raised and decided in a declaratory judgment action.

The Majority misstates and/or misconstrues the nature of Petitioners’ action as an appeal from the grant of charters to cyber schools, and it summarily decides that because Petitioners did not grant the charters in question, they have no right to challenge their legal status. Petitioners, however, do not appeal the grant of charters to the cyber schools, and they recognize that the Charter School Law does not permit them to do so.4 To the contrary, *15they request the Court, inter aha, to declare that the Secretary has no authority to withhold state education subsidies from the School Districts and to pay the funds over to the cyber schools, which the School Districts contend are not authorized by the Charter School Law.

Petitioners assert that the School Districts and the Pennsylvania School Boards Association (PSBA) have a direct interest in this matter and that they possess standing to bring the action in their own names and on behalf of similarly situated School Districts.5 The withholding of Petitioners’ state education subsidies has impacted upon them in a substantial, immediate and direct way, and they properly argue that case law confers standing upon a party adversely affected by government action to seek remedy in the courts. As for the demurrer, Petitioners maintain that cyber schools are not genuine schools in the traditional “brick and mortar” school buildings with certified teachers and students who attend school each day in a school building or facility. Moreover, there is no authority in the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101—27-2702, for creating these entities.

To possess standing to litigate an action, a party must demonstrate a substantial interest in the subject matter of the litigation, and that interest must be direct and immediate as opposed to being a remote consequence. See George v. Pennsylvania Public Utility Commission, 735 A.2d 1282 (Pa.Cmwlth.1999) (citing Ken R. ex rel. C.R. v. Arthur Z., 546 Pa. 49, 682 A.2d 1267 (1996)). The directness and immediacy requirements for standing depend upon the causal relationship between the injury or harm claimed and the action in question. Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). See also Pennsylvania School Boards Association, Inc. v. Commonwealth Association of School Administrators, Teamsters Local 502, 696 A.2d 859 (Pa.Cmwlth.1997) (PSBA granted standing to sue on behalf of members). Petitioners filed their action in the Court’s original and appellate jurisdiction after the Secretary decided to withhold subsidies and forwarded letters to the School Districts informing them of the action. Therefore, Petitioners have demonstrated interests that are substantial, direct and immediate, and assuming arguendo that PSBA lacks standing, which it does not under Pennsylvania School Boards Ass’n, Petitioners’ action would proceed nonetheless. Accordingly, I would overrule Respondents’ preliminary objection based on Petitioners’ lack of standing.

The Declaratory Judgments Act, 42 Pa. C.S. §§ 7531 — 7541, provides an independent basis for Petitioners’ action, and nothing in the Charter School Law or in this Court’s decision in West Chester Area School District v. Collegium Charter School, 760 A.2d 452 (Pa.Cmwlth.2000), *16forecloses Petitioners’ right to seek redress in this Court.6 In Bloomingdale’s By Mail, Ltd. v. Department of Revenue, 130 Pa.Cmwlth. 190, 567 A.2d 773 (1989), aff'd per curiam, 527 Pa. 347, 591 A.2d 1047 (1991), the Court repeated the principle that' “[t]he issuance of a declaratory judgment is a matter of judicial discretion which should only be exercised to illuminate an existing right, status or legal relation. ... The Declaratory Judgments Act is broad in scope and is to be liberally construed and administered but is not without its limitation.” Id. at 775. Furthermore, a case or controversy must exist or be imminent or inevitable before the Court may grant declaratory relief. Silo v. Ridge, 728 A.2d 394 (Pa.Cmwlth.1999). In Curtis v. Cleland, 122 Pa.Cmwlth. 328, 552 A.2d 316 (1988), the Court noted that the Declaratory Judgments Act is remedial in nature and that it was enacted to provide relief from uncertainty and to establish legal relationships. A declaratory judgment action may be filed to obtain a declaration of the state of existing law on a particular issue or scope of a governmental body’s actions pursuant to statutory authority. P.J.S. v. Pennsylvania State Ethics Commission, 669 A.2d 1105 (Pa.Cmwlth.1996).

The precise relief sought here involves Petitioners’ request for a declaration of the existing state of the law on a particular issue. They petition the Court to determine whether cyber schools lawfully exist under the Charter School Law and, if not, whether the Secretary may deduct education subsidies from the School Districts and pay the funds to an entity not authorized by law. Such a ruling by the Court is not foreclosed merely because Petitioners did not first appeal from the grant of the cyber charters, which they could not do. In any event, no administrative remedy is available for Petitioners to challenge the legality of cyber schools. See Boyer-town. Because the declaration requested by Petitioners is not sought in a “proceeding involving an appeal from an order of a tribunal” in violation of 42 Pa.C.S. §. 7541(c)(3), they unquestionably are entitled to proceed with their declaratory judgment action. Also see Delaware River Port Authority v. State Ethics Commission, 126 Pa.Cmwlth. 147, 558 A.2d 932 (1989). (declaratory judgment not precluded when petition for review did not constitute appeal from prior order).

Finally, the Court has repeatedly held that when ruling upon preliminary objections in the nature of a demurrer, the Court must accept and consider as true all well-pled facts in Petitioners’ petition for review and all reasonable inferences that may be deduced from those facts and then decide whether the facts pled are legally sufficient to permit the case to go forward. See, e.g. Allegheny Sportsmen’s League v. Ridge, 790 A.2d 350 (Pa.Cmwlth.2002); Sontag v. Ward, 789 A.2d 778 (Pa.Cmwlth.2001); Nixon v. Commonwealth, 789 A.2d 376 (Pa.Cmwlth.2001). Similarly, in Bara*17vordeh v. Borough Council of Prospect Park, 706 A.2d 362 (Pa.Cmwlth.1998), the Court reiterated that all doubts must be resolved in favor of refusing to sustain the preliminary objections.

To reach the desired result, the Majority has refused to apply and to follow the required standard for reviewing preliminary objections in the nature of a demurrer. Petitioners’ petition for review contains numerous well-pled facts which this Court is required to consider as true before it may decide that the pleading is legally insufficient to permit the case to go forward. In fact, the Majority readily concedes that it “cannot say that the General Assembly actually contemplated the creation of cyber schools when it enacted the Charter School Law,” majority op. at 11.7 The Majority, however, has proceeded to determine that any type of charter school is permissible, but that is not the appropriate standard. The Court is required to decide whether the law says with certainty that no relief is possible under Petitioners’ factual averments. If the answer is no, then the inquiry ends, and the Court must overrule the demurrer. It is obvious from reading Petitioners’ detailed factual aver-ments that the Court cannot resolve the factual disputes on this record and say with certainty that Petitioners are not entitled to relief. See P.J.S.

Petitioners averred that cyber schools by their nature cannot satisfy requirements of the Charter School Law, and they argue that the legislature did not contemplate “virtual schools” when it enacted the law. Petitioners pleaded, inter alia, that cyber schools have no physical schools or classrooms for students to attend; they do not operate day schools as contemplated by the School Code; they function principally on the Internet through on-line curricula developed by others; they have no location or physical academic facilities and offer no opportunity for student attendance at a location or facility; they provide no proper supervision over student learning and progress or any mechanism for enforcing compulsory school attendance laws; they represent home schooling programs in violation of the School Code; and no law exists to authorize elementary and secondary schools to operate solely on-line. See requirements of Section 1715-A of the Charter School Law, 24 P.S. § 17-1715-A; Section 1716-A, 24 P.S. § 17-1716-A; Section 1717-A, 24 P.S. § 17-1717-A; Section 1718-A, 24 P.S. § 17-1718-A; Section 1719-A(11), 24 P.S. § 17-1719-A(11); Section 1728~A(a), 24 P.S. § 17-1728-A(a); and Section 1732-A, 24 P.S. § 17-1732-A.

Cyber schools cannot provide instruction “on the premises” of a charter school because they have no buildings or facilities in which to operate. Also the cyber school students do not attend a school for a minimum of 180 days or 900/990 hours of instruction to comply with Section 1715-A or with compulsory school attendance laws. Section 1327 of the School Code, 24 P.S. § 13-1327. They do not have teachers in a classroom who provide instruction or assume responsibility “at the school site,” and they do not operate “in an existing public school building” or in part of an existing public school building or other suitable location. See Section 1702-A, 24 P.S. § 17-1702-A; Section 1715-A; and Section 1722-A, 24 P.S. § 17-1722-A. A careful review of the factual averments and the Charter School Law requirements *18demonstrates that Petitioners have stated a cause of action entitling them to relief. I would thus overrule Respondents’ preliminary objection based on standing and their demurrer and allow an answer to the petition for review or an appropriate motion for summary relief under Pa. R.A.P. 1532(b).

Judges McGINLEY and COHN join.

. The Court held in Boyertown that School Districts are entitled to notice and an opportunity to challenge the correctness of cyber school tuition invoices before the Secretary may withhold subsidies from the School Districts and pay over these funds to the cyber schools.

. Petitioners filed their petition for review after the Department of Education forwarded letters on and after June 1, 2001 to the School Districts stating that education subsidies would be withheld from those School Districts that refused to voluntarily pay tuition bills submitted by the cyber schools. The Secretary deducted $839,665 from numerous school districts after receiving documentation of unpaid invoices submitted by the Western PA Cyber Charter School.

The following cyber schools were named as Respondents: Western PA Cyber Charter School with principal offices in Midland was chartered by the Midland Borough School District; Commonwealth Cyber Charter School with principal offices in Lancaster was chartered by the School District of Lancaster, but because it did not commence operations the parties agreed that it be removed as a party; T.E.A.C.H. Charter School, a/k/a Einstein Academy Charter School, with principal offices in Jenkintown was chartered by the Morrisville School District; and Pennsylvania Virtual Charter School with principal offices in Norristown was chartered by the Norris-*14town Area School District. The remaining cyber schools, SusQ-Cyber Charter School, 21st Century Cyber Charter School, Mid-western Regional Virtual Charter School and Pa. Learner’s Online Regional Cyber Charter School, were not named as Respondents, according to Petitioners, because they operate differently from the named cyber schools and no subsidies have been withheld on their account from the school districts.

. See also Associated Wholesalers, Inc. v. Department of Revenue, 780 A.2d 759 (Pa.Cmwlth.2001) (ruling upon one count of petition for review appealing from denial of petition for different tax treatment and granting motion of parties to stay counts in original jurisdiction pending resolution of the issues in the appellate jurisdiction count); Turner v. Pennsylvania Public Utility Commission, 683 A.2d 942 (Pa.Cmwlth.1996) (granting declaratory judgment in original jurisdiction as to the type of hearing required before removal of chief administrative law judge and holding that appeal from removal was premature); Lentz v. Department of Education, 98 Pa.Cmwlth. 167, 510 A.2d 922 (1986), aff'd per curiam, 514 Pa. 589, 526 A.2d 359 (1987) (granting summary judgment to Commonwealth parties on original jurisdiction count seeking declaration that certain employees were governed by civil service statutes rather than school provisions and affirming the State Civil Service Commission's decision on appellate jurisdiction count). Each of these cases was filed to a single docket number.

. Section 1717-A of the Charter School Law, 24 P.S. § 17-1717-A, relating to establishment of charter schools, provides in subsection (e)(5) that written notice of a school board's required action on a charter application shall be sent to the applicant, the Department and the State Charter School Appeal Board (Appeal Board) established pursuant to Section 1721-A, 24 P.S. § 17-1721-A; if the application is denied, the reasons for the denial shall be clearly stated in the written notice. Pursuant to Section 1717 — A(i)(l), 24 P.S. § 17-1717-A(i)(l), the Appeal Board ''shall have the exclusive review of an appeal by a charter school applicant, or by the board of trustees of an existing charter school, of a decision made by a local board of directors not to grant a charter as provided in this section.” Section 1717-A(i)(2)~(5), 24 P.S. § 17-1717-A(i)(2)-(5), provides detailed procedures, including securing a substantial number of required signatures, for qualifying *15to appeal from a denial of a charter application. Nowhere in Section 1717-A is any provision made for an appeal of a grant of a charter application.

. Amicus Curiae Pennsylvania State Education Association supports Petitioners’ arguments and states, among other things, that cyber schools can deliver instructional programs over the Internet to students who reside in any School District in the Commonwealth. If the cyber schools are entitled to receive payments from the School Districts pursuant to Section 1725-A(a)(2), (3), 24 P.S. § 17-1725-A(a)(2), (3), then every School District in the state would be required to make payments to one or more cyber schools. In any event, to sustain Respondents’ preliminary objections, the Court must conclude that relevant case law is clear and free from doubt and that the facts pled are not legally sufficient to establish Petitioners’ right to relief.

. Petitioners cite Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), where the Supreme Court in examining whether a statute created a right of action stated that the court presumed the availability of all appropriate implied remedies unless Congress expressly indicated otherwise. Petitioners dispute the argument that when enacting the - Charter School Law the legislature precluded all preexisting judicial remedies that might be available. to the School Districts to protect their receipt of state subsidies to operate their respective schools. Also compare Curtis v. Cleland, 122 Pa.Cmwlth. 328, 552 A.2d 316 (1988) (county commissioners not barred from pursuing declaratory judgment action to ascertain their legal status regarding disbursement of funds even though they failed to appeal court order requiring them to countersign checks in order to disburse the contested funds).

. Proposed legislation, if enacted, would confirm the Majority’s concession. See pending legislation House Bill 1733, Section 2 (cyber schools do not fit within requirements of the Charter School Law for suitable physical facilities and provision of minimum number of days or hours of operation).