West Mifflin Area School District v. Zahorchak

DISSENTING OPINION BY

Judge COHN JUBELIRER.

While I do not question the substance of Sections 1113(b.2) and 1607.1 of the Public School Code of 19491 (Code), I must respectfully dissent because I agree with Petitioners that, as drafted, these statutory provisions constitute special legislation in violation of Article III, Section 32 of the Pennsylvania Constitution.

*1051Article III, Section 32 of the Pennsylvania Constitution provides, in relevant part, that “[t]he General Assembly shall pass no local or special law ... [rjegulating the affairs of counties, cities, townships, wards, boroughs or school districts.” In applying Article III, Section 32 of the Pennsylvania Constitution, our Supreme Court has held that “a statute may be deemed per se unconstitutional if, under the classification, the class consists of one member and is closed or substantially closed to future membership.” Pennsylvania Turnpike Commission v. Commonwealth, 587 Pa. 347, 369, 899 A.2d 1085, 1098 (2006).

The majority, here, concludes that Section 1607.1 of the Code does not create a closed class. In so concluding, the majority agrees with the Department’s interpretation that the language, “has been placed on the educational empowerment list,” which is found in Section 1607.1(a) of the Code, does not require continuing presence on the list but, rather, merely requires presence on the list at some point in the past. West Mifflin Area School District et al. v. Zahorchak et al., 956 A.2d 1040, 1050, (Pa.Cmwlth., No. 371 M.D. 2007). However, I disagree with this interpretation.

Section 1607.1 of the Code is titled “Distressed school districts and student attendance in other districts.” 24 P.S. § 16-1607.1. The requirements set forth in subsection (a) of Section 1607.1 define which school districts qualify as “distressed” for the purposes of that Section. If the requirement that a school district “has been placed on the educational empowerment list” is interpreted, as was done so here by the majority, to require only presence on the educational empowerment list at some point in the past, then the requirement becomes artificial. That is, if a school district was on the educational empowerment list at some point in the past, but is no longer on the list because it has improved its situation, the school district’s past inclusion on the list has absolutely no bearing on whether the school district is currently “distressed.” The only way that a school district’s presence on the educational empowerment list has any bearing on whether the school district is currently “distressed” is if the school district is on the list at the time the “distressed” determination is made. Thus, in order to give effect to the “has been on the educational empowerment list” language, I believe that such language must be interpreted to mean presence on the list contemporaneous with the time the determination is made that the school district is “distressed” for the purposes of Section 1607.1. See 1 Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible, to give effect to all its provisions.”)

Under this interpretation, Duquesne is the only school district that could ever satisfy the requirements of Section 1607.1(a). That is, Duquesne is the only school district of the third class that is currently on the educational empowerment list and is the only school district of the third class that has been under the supervision of a board of control for five consecutive years. Moreover, the Education Empowerment Act,2 which provides for placement on the educational empowerment list, expires on June 30, 2010,3 and thus, there is no possibility that a school district of the third class, other than Du-quesne, will ever simultaneously meet the requirements of presence on the educational empowerment list and supervision *1052by a board of control for five consecutive years. Therefore, because Section 1607.1 creates a class of one that, for all intents and purposes, is not open to future membership, I believe that Section 1607.1 is per se unconstitutional.4,5 See Pennsylvania Turnpike Commission, 587 Pa. at 369, 899 A.2d at 1098.

It is clear to me that the statutory provisions involved in this case were intended only to address the specific situation faced by Duquesne, while leaving untouched the existing procedures applicable to all other school districts in the Commonwealth.6 One of the real dangers involved in such a situation is that members of the General Assembly can single out one school district for particularized treatment, while their own constituents are in no way affected. I believe that it is precisely this type of special legislation that Article III, Section 32 of the Pennsylvania Constitution prohibits. Accordingly, I respectfully dissent.

Judge PELLEGRINI joins in this dissenting opinion.

. Act of March 10, 1949, P.L. 30, added by Act of July 20, 2007, P.L. 278, No. 45, §§ 5, 14, 24 P.S. §§ 11 — 1113(b.2), 16-1607.1.

. Act of May 10, 2000, P.L. No. 16, as amended, 24 P.S. §§ 17-1701-B — 17-1716-B.

. Section 1716-B of the Education Empowerment Act, 24 P.S. § 17-1716-B.

. Because the applicability of Section 1113(b.2) of the Code is conditioned upon a school district first qualifying as "distressed” under Section 1607.1, I believe that Section 1113(b.2) is also unconstitutional.

. I do not question whether Section 1607:1, which helps to ensure that students have a place to attend high school and streamlines the process for when the high school in their district of residence closes, is good policy. I also do not question whether Section 1113(b.2), which assists teachers from high schools that are closed in obtaining employment, is good policy. However, I do not believe that it is constitutional to apply these policies to only one school district.

. For all other school districts in which no public high school is maintained, Section 1607 of the Code, 24 P.S. § 16-1607, applies. Section 1607 provides, in relevant part, as follows:

Pupils residing in a school district in which no public high school is maintained may attend, during the entire term, at the expense of the school district of which they are residents, the nearest or most conveniently located high school of such class as they may desire to attend, unless the board of school directors of the district of residence shall have assigned the pupils to a high school and adequate transportation is provided thereto.

24 P.S. § 16-1607 (emphasis added). However, under Section 1607.1, which, as discussed in this dissent, applies only to Du-quesne, the Secretary of the Department makes the decision without regard to the wishes of the pupils. 24 P.S. § 16-1607.1.