R.M., individually v. Sec'y. of the PA Dept. of Ed. N. Ortega

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R.M., individually and on behalf of :
minor child M.M., B.C., individually :
and on behalf of his minor child :
D.R.B.C., C.A., individually and on :
behalf of minor child F.J.A., K.Y., :
individually and on behalf of Minor :
children B.Y. and R.Y., A.H., :
individually and on behalf of minor :
child A.P.T., S.T., individually and on :
behalf of minor child A.M.T., N.J., :
individually and on behalf of minor :
children J.J. and J.K., M.L, :
individually and on behalf of minor :
children C.L., K.L.L., P.J.L., E.M., :
individually and on behalf of minor :
children L.M., L.M., Q.M. and F.M., :
Petitioners :
:
v. :
:
Secretary of the Pennsylvania :
Department of Education Noe :
Ortega, Pennsbury School District, :
Fox Chapel Area School District, :
Stroudsburg Area School District, :
Parkland School District, Carlynton :
School District and Seneca Valley :
School District, : No. 49 M.D. 2022
Respondents : Argued: October 11, 2022

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 1, 2022

This case concerns the Petition for Review in the Nature of a Complaint
for Declaratory Relief (Petition for Review) filed by nine petitioners, individually
and on behalf of their minor children (collectively, Petitioners1), against the
Secretary of the Pennsylvania Department of Education Noe Ortega (Secretary
Ortega), Pennsbury School District, Fox Chapel Area School District, Stroudsburg
Area School District, Parkland School District, Carlynton School District, and
Seneca Valley School District (collectively with one another, School District
Respondents; collectively with Secretary Ortega, Respondents). The Petition for
Review seeks declarations from this Court stating: (1) that Secretary Ortega
misinterpreted the law in two emails advising the School District Respondents that,
following this Court’s determination, and our Supreme Court’s affirmance, in
Corman v. Acting Secretary of Pennsylvania Department of Health, 267 A.3d 561
(Pa. Cmwlth.) (Corman I), affirmed, 268 A.3d 1080 (Pa. 2021),2 the School District
Respondents retained the authority to require students, staff, and members of the

1
Specifically, Petitioners and the minor children they represent, all of whom are identified
only by initials in this matter, are: R.M., individually and on behalf of minor child M.M.; B.C.,
individually and on behalf of minor child D.R.B.C.; C.A., individually and on behalf of minor
child F.J.A.; K.Y., individually and on behalf of minor children B.Y. and R.Y.; A.H., individually
and on behalf of minor child A.P.T.; S.T., individually and on behalf of minor child A.M.T., N.J.,
individually and on behalf of minor children J.J. and J.K.; M.L., individually and on behalf of
minor children C.L., K.L.L., P.J.L.; and E.M., individually and on behalf of minor children L.M.,
L.M., Q.M., and F.M.
2
Our Supreme Court issued an order affirming Corman I on December 10, 2021, and
thereafter issued a full opinion on the matter on December 23, 2021. See Corman v. Acting Sec’y
of Pa. Dep’t of Health, 268 A.3d 1080 (Pa. 2021); see also Corman v. Acting Sec’y of Pa. Dep’t
of Health, 266 A.3d 452, 455 (Pa. 2021) (Corman II).
2
general public to wear facemasks inside schools within their respective districts; and
(2) that the School District Respondents lack legal authority to require students, staff,
and members of the general public to wear facemasks inside schools in their
respective districts. See generally Petition for Review.
Before the Court currently are the Petitioners’ Application for
Summary Relief, and Respondents’ Answers thereto; Secretary Ortega’s
Application for Summary Relief in the Form of a Motion to Dismiss the Petition for
Review (Secretary Ortega’s Motion to Dismiss), and Petitioners’ Answer thereto;
Parkland School District’s Application for Relief in the Form of a Motion to Dismiss
the Petition for Review (Parkside’s Motion to Dismiss), and Petitioners’ Answer
thereto; and the Preliminary Objections to the Petition for Review filed on behalf of
each of the individual Respondents,3 and Petitioners’ Answers thereto.

I. Background and Procedural Posture
By way of brief background,4 in early March 2020, in response to the
appearance of the novel coronavirus SARS-CoV-2 (COVID-19), Pennsylvania
Governor Tom Wolf issued a Proclamation of Disaster Emergency (Disaster
Proclamation) under Section 7301(c) of the Emergency Management Services Code

3
Secretary Ortega, Pennsbury School District, Stroudsburg School District, Parkland
School District, and Seneca Valley School District each filed Preliminary Objections on their own
behalf. Fox Chapel Area School District and Carlynton School District jointly filed their
Preliminary Objections.
4
An in-depth discussion of pertinent events occurring between Governor Tom Wolf’s
March 6, 2020 Proclamation of Disaster Emergency and this Court’s determination in Corman I
can be found both in that decision and our Supreme Court’s opinion affirming the same. See
Corman I, 267 A.3d at 567-70; see also Corman II, 266 A.3d at 455-61.

3
(Emergency Code),5 35 Pa.C.S. § 7301(c), that authorized numerous orders
thereafter promulgated by the Governor’s Office designed to mitigate the spread of
COVID-19. After the initial Disaster Proclamation, Governor Wolf issued five
amendments renewing the Disaster Proclamation for additional 90-day periods. In
May of 2021, Pennsylvania voters approved two amendments to the Pennsylvania
Constitution. The first amendment constrained the Governor’s power under the
Emergency Code by limiting the duration of declared gubernatorial disaster
emergencies.6 The second amendment provided a mechanism whereby the General
Assembly could otherwise terminate (or extend) a gubernatorial disaster emergency,
or portion thereof, by a simple majority vote.7 Thereafter, on June 10, 2021, the
General Assembly approved a concurrent resolution that terminated the Disaster
Proclamation.
Governor Wolf did not issue a new proclamation of disaster emergency
after the General Assembly terminated the Disaster Proclamation. Instead, on
August 30, 2021, the Commonwealth’s Acting Secretary of Health issued a
statewide order that imposed an open-ended general masking requirement on all
teachers, students, staff, and visitors within Pennsylvania’s schools, regardless of
vaccination status, with certain exceptions (Acting Secretary’s Masking Order). On
September 3, 2021, a petition challenging the Acting Secretary’s Masking Order was
filed in this Court’s original jurisdiction (Challenge Petition). On November 8,
2021, Governor Wolf announced that the Acting Secretary’s Masking Order would
expire on January 17, 2022, thereby leaving the determination of whether to

5
35 Pa.C.S. §§ 7101-79A33.
6
See section 20 of article IV of the Pennsylvania Constitution, Pa. Const. art. IV, § 20.
7
See section 9 of article III of the Pennsylvania Constitution, Pa. Const. art. III, § 9.
4
implement masking requirements up to local school leaders. See Corman v. Acting
Sec’y of Pa. Dep’t of Health, 266 A.3d 452, 461 (Pa. 2021) (Corman II). Two days
later, on November 10, 2021, this Court granted the Challenge Petition, finding the
Acting Secretary’s Masking Order void ab initio due to the Acting Secretary of
Health’s failure to comply with the requirements of the Commonwealth Documents
Law8 and the Regulatory Review Act.9 See Corman I. Our Supreme Court affirmed
this Court’s decision by order dated December 10, 2021.10 See Corman II.
On November 10, 2021, the day this Court issued its determination in
Corman I, Secretary Ortega sent an email to the Commonwealth’s school districts
that read, in pertinent part:

Earlier this week, Governor Tom Wolf announced that on
January 17, 2022, it is anticipated that the
Commonwealth’s K-12 school mask requirements will
return to local control. Upon the expiration of the
statewide mandate, schools may continue requiring mask-
wearing based on local policy and [Centers for Disease
Control (CDC)] guidance.

See Petitioners’ Application for Summary Relief at 5-6.11 Following our Supreme
Court’s affirmance of this Court’s determination by order dated December 10, 2021,

8
Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa.C.S.
§§ 501-907.
9
Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15.
10
See supra note 2.
11
We observe that the purported link contained in the Petition for Review to this
communication from Secretary Ortega to the School District Respondents
(https://www.governor.pa.gov/newsroom/gov-wolf-state-anticipates-returning-k-12-mask-
requirement-to-local-leaders%e2%80%afjanuary-17-2022) is not a valid link. See Petition for
Review at 17 n.2.
5
Secretary Ortega sent a second email to the Commonwealth’s school districts, this
time stating, in pertinent part:

School entities still possess the authority and are
encouraged to require masks in their facilities as
recommended by [the] CDC. Masking in school settings
minimizes the spread of COVID-19, particularly in
settings where individuals and students are not vaccinated,
and allows for reduced quarantining to keep individual
students and staff in school.

Finally, the elimination of the statewide PreK-12 school
mask requirement does not change how schools respond
to COVID-19 cases in school, address outbreaks, or report
data to the PA Department of Health (DOH). Schools
should continue to refer to the guidance [provided by the
DOH].

Petition for Review, Exhibit B (emphasis in original).
On February 8, 2022, Petitioners filed the Petition for Review in this
Court’s original jurisdiction. The Petition for Review suggests that the School
District Respondents implemented masking policies for students, staff, and the
general public in their schools in response to Secretary Ortega’s November 10, 2021
and December 10, 2021 emails (collectively, Secretary Ortega’s emails). The
Petition for Review further requests that this Court declare: (1) that Secretary Ortega
erred by advising the School District Respondents that they could enact masking
policies; and (2) that the Commonwealth’s school districts lack the authority to
implement mask mandates within their schools. See Petition for Review at 19-30.
On March 15, 2022, Petitioners filed Petitioners’ Application for
Summary Relief (Petitioners’ SR Application). Thereafter, Carlynton School
District and Fox Chapel Area School District jointly, and Pennsbury School District,
6
Stroudsburg School District, and Parkland School District individually, filed
answers arguing that Petitioners’ SR Application was premature and requesting that
the Court defer consideration and disposition thereof until such time that it could
consider Respondents’ to-be-filed preliminary objections.12
On March 18, 2022, Carlynton School District and Fox Chapel Area
School District jointly filed their preliminary objections to the Petition for Review.
See “Preliminary Objections of Respondents, Carlynton School District and Fox
Chapel Area School District, to Petition for Review in the Nature of a Complaint for
Declaratory Relief” filed March 18, 2022 (Carlynton/Fox Chapel’s Preliminary
Objections) at 1-31. On March 21, 2022, Secretary Ortega and the remaining School
District Respondents filed their own preliminary objections to the Petition for
Review. See “Preliminary Objections of Respondent, Secretary of the Pennsylvania
Department of Education, Noe Ortega to the Petition for Review” filed March 21,
2022 (Secretary Ortega’s Preliminary Objections); “Preliminary Objections of
[Respondent] Pennsbury School District to the [Petitioners’] Petition for Review”
filed March 21, 2022 (Pennsbury’s Preliminary Objections); “Preliminary
Objections on Behalf of Respondent Stroudsburg Area School District to Petition
for Review in the Nature of a Complaint for Declaratory Relief” filed March 21,

12
Carlynton School District and Fox Chapel Area School District jointly filed their
“Response in Opposition to Petitioner’s [sic] Application for Summary Relief” on March 15, 2022;
Pennsbury School District filed its “Response in Opposition to Petitioner’s [sic] Application for
Summary Relief” on March 17, 2022; Parkland School District filed its “Response in Opposition
to Petitioner’s [sic] Application for Summary Relief on Behalf of Respondent, Parkland School
District” on March 18, 2022; Stroudsburg Area School District filed its “Response in Opposition
to Petitioner’s [sic] Application for Summary Relief on Behalf of Respondent Stroudsburg Area
School District” on March 18, 2022; and Seneca Valley School District filed its “Response in
Opposition to Petitioner’s [sic] Application for Summary Relief” on March 21, 2022. Thereafter,
on March 25, 2022, Secretary Ortega filed the “Answer of Respondent, Secretary of Pennsylvania
Department of Education Noe Ortega, to Petitioners’ Application for Summary Relief.”

7
2022 (Stroudsburg’s Preliminary Objections); “Respondent, Seneca Valley School
District’s Preliminary Objections and Suggestion of Mootness to Petition for Review
in the Nature of a Complaint for Declaratory Relief” filed March 21, 2022 (Seneca
Valley’s Preliminary Objections); and “Respondent Parkland School District’s
Preliminary Objections to the Petition for Review in the Nature of a Complaint for
Declaratory Relief” filed March 21, 2022 (Parkland’s Preliminary Objections)
(collectively, Respondents’ Preliminary Objections and/or School District
Respondents’ Preliminary Objections, as appropriate).
In his preliminary objections, Secretary Ortega claims that Petitioners
lack capacity to sue and this Court lacks subject matter jurisdiction over the Petition
for Review because it cannot be shown that Secretary Ortega’s emails caused the
School District Respondents to implement their masking policies, which were in
place well before Secretary Ortega’s emails. See Secretary Ortega’s Preliminary
Objections at 4-6. Secretary Ortega’s three additional preliminary objections demur
because: (1) Section 510 of the Public School Code of 1949 (School Code), Act of
March 10, 1949, P.L. 30, as amended, 24 P.S. § 5-510, allows local school boards
to adopt reasonable rules and regulations to govern their respective school districts;
(2) the School District Respondents developed and adopted their respective masking
plans/guidelines as a requirement to receive funds under the federal
American Rescue Plan Act of 2021, Pub. L. No. 117-2, well before Secretary Ortega
sent the complained-of emails; and (3) Secretary Ortega’s emails were not a mandate
for the School District Respondents to implement mandatory masking requirements
in their facilities, but instead were recognition that, in the absence of a valid state-
wide order from the Secretary of Health, mitigation measures would revert back to
the control of the individual school districts pursuant to their previously-developed

8
health and safety plans and the general provisions of the School Code. See Secretary
Ortega’s Preliminary Objections at 6-11.
Likewise, in their respective preliminary objections, the School District
Respondents make various claims that echo the preliminary objections filed by
Secretary Ortega, including: (1) that Secretary Ortega’s emails were not mandates
directing the School District Respondents to implement masking mandates; and (2)
that the School Code allows school districts to adopt reasonable rules and regulations
to govern their respective school districts. See generally School District
Respondents’ Preliminary Objections.
In addition to the preliminary objections filed, on March 21, 2022,
Secretary Ortega filed an application for summary relief that argued that the instant
matter is moot as a result of all the School District Respondents having either lifted
their masking requirements entirely or revised their policies to require masking only
in certain limited circumstances. See Secretary Ortega’s Motion to Dismiss.
Parkland School District filed a similar application for summary relief on its own
behalf, also on March 21, 2022, that likewise argued the matter is moot as a result
of Parkland School District having lifted its masking mandate. See Parkland’s
Motion to Dismiss.
The parties have filed appropriate answers, briefed, and presented oral
argument regarding Petitioners’ Application for Summary Relief, Secretary Ortega’s
Motion to Dismiss, Parkland’s Motion to Dismiss, and Respondents’ Preliminary
Objections.13 The matter is now ready for disposition.

13
The Pennsylvania School Boards Association (Association) has submitted for this
Court’s consideration an amicus curiae brief on behalf of the School District Respondents in which
the Association argues that the School Code empowers the School District Respondents with all
necessary managerial powers to operate public schools and to determine appropriate policies
relevant thereto, including masking policies.
9
 II. Discussion
A. Absence of Actual Controversy
It is axiomatic that an actual case or controversy must exist at all stages
of litigation and review, not merely when an action is commenced. See
Commonwealth v. Packer Twp., 60 A.3d 189, 192 (Pa. Cmwlth. 2012) (quoting
Pap’s A.M. v. City of Erie, 812 A.2d 591, 600 (Pa. 2002)); see also In re Gross, 382
A.2d 116, 119 (Pa. 1978). “The existence of a case or controversy requires a real
and not a hypothetical legal controversy and one that affects another in a concrete
manner so as to provide a factual predicate for reasoned adjudication.” Harris v.
Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009), aff’d, 992 A.2d 121 (Pa. 2010)
(quoting City of Philadelphia v. Se. Pa. Transp. Auth., 937 A.2d 1176, 1179 (Pa.
Cmwlth. 2007)) (additional quotation marks omitted). “It is well settled that the
courts do not render decisions in the abstract or offer purely advisory opinions.” Id.
at 1035 (quoting Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655,
659 (Pa. 2005)). Accordingly, “[j]udicial intervention is appropriate only where the
underlying controversy is real and concrete, rather than abstract.” Id. at
1035 (quoting City of Philadelphia v. Commonwealth, 838 A.2d 566, 577 (Pa.
2003)) (additional quotation marks omitted).
Regarding declaratory judgments in particular, this Court has
explained:

[O]ne limitation on a court’s ability to issue a declaratory
judgment is that the issues involved must be ripe for
judicial determination, meaning that there must be the
presence of an actual case or controversy. Thus, the

10
 Declaratory Judgments Act[14] requires a petition praying
for declaratory relief to state an actual controversy
between the petitioner and the named respondent.

Brouillette v. Wolf, 213 A.3d 341, 357 (Pa. Cmwlth. 2019) (internal citation
omitted). Our Supreme Court has further explained that

[t]he presence of antagonistic claims indicating imminent
and inevitable litigation coupled with a clear manifestation
that the declaration sought will be of practical help in
ending the controversy are essential to the granting of
relief by way of declaratory judgment.

....

Only where there is a real controversy may a party obtain
a declaratory judgment.

A declaratory judgment must not be employed to
determine rights in anticipation of events which may never
occur or for consideration of moot cases or as a medium
for the rendition of an advisory opinion which may prove
to be purely academic.

Gulnac by Gulnac v. S. Butler Cnty. Sch. Dist., 587 A.2d 699, 701 (Pa. 1991)
(internal citations omitted).
Here, Secretary Ortega’s emails posited that, once the Acting Secretary
of Health’s masking mandate was no longer in effect, the school districts would
retain the authority to implement masking requirements in their schools pursuant to
many districts’ health plans that were adopted well before Secretary Ortega sent the

14
42 Pa.C.S. §§ 7531-7541.

11
emails in question. Whether correct or incorrect,15 the advice contained in the
Secretary’s emails was not an order, directive, requirement, or mandate requiring the
School District Respondents to implement masking mandates within their schools.
In the absence of an actual controversy, this Court does not provide
advisory opinions on laws passed by the General Assembly or on non-binding advice
provided by the Secretaries of the Commonwealth’s various Departments regarding
those laws. Simply put, the emails are not agency orders reviewable by this Court.
Harris; Gulnac; Brouillette.
B. Mootness
Moreover, we agree with the argument contained in Secretary Ortega’s
Motion to Dismiss, Parkland’s Motion to Dismiss, and the Preliminary Objections
of the various School District Respondents that the instant matter is moot as a result
of the School District Respondents having lifted entirely, or otherwise made
optional, their masking requirements. See Secretary Ortega’s Motion to Dismiss;
Parkland’s Motion to Dismiss; Carlynton/Fox Chapel’s Preliminary Objections at
13-20; Pennsbury’s Preliminary Objections at 3-9 (pagination supplied);
Stroudsburg’s Preliminary Objections at 2-4; Seneca Valley’s Preliminary
Objections at 11-13.16

15
Given our determination herein that Secretary Ortega’s emails contained no orders or
directives with which the School District Respondents were required to comply, the accuracy of
the advice contained in Secretary Ortega’s emails, and indeed Secretary Ortega’s power under the
School Code to provide such advice in the first place, are questions that this Court need not address
at this time.
16
Although appearing as part of its Preliminary Objections, Seneca Valley School
District’s mootness argument is stated as a “Motion to Dismiss: Suggestion of Mootness.” See
Seneca Valley’s Preliminary Objections at 11.

12
 Pennsylvania Rule of Appellate Procedure 1972(4) allows a party to
move for dismissal for mootness of an action during litigation. See Pa.R.A.P.
1972(4). “A case is moot when a determination is sought on a matter which, when
rendered, cannot have any practical effect on the existing controversy.” J.J. M. v.
Pa. State Police, 183 A.3d 1109, 1112 (Pa. Cmwlth. 2018) (quoting Chruby v. Dep’t
of Corr., 4 A.3d 764, 770 (Pa. Cmwlth. 2010)); see also Szabo v. Dep’t of Transp.,
212 A.3d 1168, 1172 (Pa. Cmwlth. 2019) (“A case is moot when a determination
will not have any practical effect on the existing controversy.”). Thus, when changes
in the facts or law after commencement of an action “deprive the litigant of the
necessary stake in the outcome[,]” an action becomes moot. Packer Twp., 60 A.3d
at 192 (quoting Gross, 382 A.2d at 119) (additional quotation marks omitted).
Likewise, if a change in facts or law renders it impossible for a court to grant relief,
then the action also becomes moot. Gross, 382 A.2d at 120. As our Supreme Court
has explained:

The cases presenting mootness problems involve litigants
who clearly had standing to sue at the outset of the
litigation. The problems arise from events occurring after
the lawsuit has gotten under way—changes in the facts or
in the law—which allegedly deprive the litigant of the
necessary stake in the outcome.

Pap’s A.M., 812 A.2d at 599-600 (quoting In re Cain, 590 A.2d 291, 292 (Pa. 1991)).
However, in cases where an appeal is technically moot, a court may still
proceed to address the merits of a claim “where the conduct complained of is capable
of repetition yet likely to evade review, where the case involves issues important to
the public interest or where a party will suffer some detriment without the court’s
decision.” Sierra Club v. Pa. Pub. Util. Comm’n, 702 A.2d 1131, 1134 (Pa. Cmwlth.
13
1997) (en banc), aff’d, 731 A.2d 133 (Pa. 1999). “[A]n issue is capable of repetition
but will likely evade review where [(1)] the duration of the challenged action is too
short to be fully litigated prior to its cessation or expiration; and [(2)] there is a
reasonable expectation that the same complaining party will be subjected to the same
action again.” Driscoll v. Zoning Bd. of Adjustment of City of Phila., 201 A.3d 265,
269 (Pa. Cmwlth. 2018) (internal quotation marks, ellipses, and brackets omitted).
As has been observed,

[i]t is the burden of the moving party to establish that the
issue is “capable of repetition yet evading review.”
“Capable of repetition” is not a synonym for “mere
speculation;” it is a substantive term on which the moving
party must provide a reasonable quantity of proof–perhaps
even by the preponderance of the evidence.

N.J. Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 33 (3d Cir. 1985).
The Third Circuit Court of Appeals has recently found moot a case
involving facts similar to the instant matter. See Cnty. of Butler v. Governor of Pa.,
8 F.4th 226, 229 (3d Cir. 2021), cert. denied sub nom. Butler Cnty. v. Wolf, 142 S.
Ct. 772 (2022). In County of Butler, the petitioners sought a declaratory judgment
regarding emergency measures implemented between March and July of 2020 by
Governor Wolf and Pennsylvania’s Secretary of Health in response to the declared
public health emergency occasioned by COVID-19. By the time the Third Circuit
heard the matter, the underlying facts had fundamentally changed as follows:

While the appeal was pending, circumstances changed.
On the health front, society has learned more about how
COVID-19 spreads and the efficacy of masks, therapeutics
have been developed, and vaccines have been

14
 manufactured and distributed. In fact, more than 60% of
Pennsylvanians have received a COVID vaccine.

There also have been changes on the legal front. An
amendment to the Pennsylvania Constitution and a
concurrent resolution of the Commonwealth’s General
Assembly now restricts the Governor’s authority to enter
the same orders. In addition, the challenged orders have
expired by their own terms.

Cnty. of Butler, 8 F.4th at 230 (internal citations omitted). Under these
circumstances, the Third Circuit determined that the matter was moot and that the
“capable of repetition yet evading review” mootness exception did not apply. See
id. at 230-31. The Third Circuit noted that, for “capable of repetition yet evading
review” mootness to apply, “[t]here must be more than a theoretical possibility of
the action occurring against the complaining party again; it must be a reasonable
expectation or a demonstrated probability.” Id. at 231. The Third Circuit then found
that a mere observation by the petitioners that the Secretary of Health still claimed
the power to issue future orders akin to the then-expired challenged orders did not
satisfy the dual requirements that the duration of the challenged action be too short
to be fully litigated prior to its cessation or expiration and that a reasonable
expectation exists that the same complaining party will be subjected again to the
same action. See id.
While not binding authority on this Court, the Third Circuit’s reasoning
in County of Butler is persuasive regarding the facts of the instant case. Here,
although the School District Respondents did have mask mandates in place at the
commencement of this litigation, all parties agree that none of the School District
Respondents currently mandate or otherwise require the wearing of masks by
students, staff, or members of the general public in any of their schools. See
15
Petitioners’ Application for Summary Relief at 7-9. While some of the School
District Respondents continue to recommend that individuals wear facemasks within
their facilities, all such policies currently make mask wearing optional and leave the
determination of whether to wear a mask with each individual upon entering the
School District Respondents’ facilities. See id. In short, there remain no active mask
mandates to challenge. As a consequence of these developments, there is no relief
that this Court can grant regarding either Secretary Ortega’s emails or the School
District’s now-withdrawn mask mandates. Accordingly, this case is moot. Pap’s
A.M.; Gross; Packer Twp.
Further, as in County of Butler, Petitioners’ notation of the fact that the
Commonwealth’s Secretary of Education and/or the School District Respondents
retain the power to reinstitute mask mandates within schools does not satisfy the
elements of the “capable of repetition yet evading review” test. The mask mandates
in question in this matter have not been in effect in the School District Respondents’
schools for more than half a year. The current availability of effective vaccines, the
CDC’s widespread abandonment of masking recommendations for non-high-risk
individuals, and the trajectory of the COVID-19 pandemic in terms of the decreasing
virulence of successive variants all suggest that fears of a return to masking
requirements are more hypothetical speculation than concrete likelihood. See Cnty.
of Butler, 8 F.4th at 231. As such, any declaratory judgment rendered by this Court
on this question at this stage of the pandemic would effectively amount to a
“determin[ation of] rights in anticipation of events which may never occur or for
consideration of moot cases or as a medium for the rendition of an advisory opinion
[regarding the parameters of Section 510 of the School Code, 24 P.S. § 5-510,] which
may prove to be purely academic.” Gulnac, 587 A.2d at 701. Accordingly, the

16
matter remains moot and the “capable of repetition yet evading review” mootness
exception does not apply. Cnty. of Butler; Gulnac. Thus, even if Secretary Ortega’s
emails presented agency orders reviewable by this Court, which they do not for the
reasons stated supra, we would determine the matter to be non-reviewable as moot.

III. Conclusion
The advice contained in the Secretary’s emails was not an order,
directive, requirement, or mandate requiring the School District Respondents to
implement masking mandates within their schools. As such, no agency order exists
for this Court to review. Therefore, we sustain Respondents’ preliminary objections
to the extent they argue this Court lacks jurisdiction for want of a reviewable order.
Further, for the reasons discussed herein, the claims raised by the
Petition for Review are moot. Accordingly, we also grant Secretary Ortega’s Motion
to Dismiss, Parkland School District’s Motion to Dismiss, and sustain the
preliminary objections of the remaining School District Respondents relating to the
mootness of Petitioners’ claims and dismiss the Petition for Review.17

__________________________________
CHRISTINE FIZZANO CANNON, Judge

17
Because we sustain the jurisdiction-based preliminary objections and grant/sustain the
various motions to dismiss and the mootness-based preliminary objections and dismiss the Petition
for Review on these grounds, we dismiss Petitioners’ Application for Summary Relief as moot.

17
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

R.M., individually and on behalf of :
minor child M.M., B.C., individually :
and on behalf of his minor child :
D.R.B.C., C.A., individually and on :
behalf of minor child F.J.A., K.Y., :
individually and on behalf of Minor :
children B.Y. and R.Y., A.H., :
individually and on behalf of minor :
child A.P.T., S.T., individually and on :
behalf of minor child A.M.T., N.J., :
individually and on behalf of minor :
children J.J. and J.K., M.L, :
individually and on behalf of minor :
children C.L., K.L.L., P.J.L., E.M., :
individually and on behalf of minor :
children L.M., L.M., Q.M. and F.M., :
Petitioners :
:
v. :
:
Secretary of the Pennsylvania :
Department of Education Noe :
Ortega, Pennsbury School District, :
Fox Chapel Area School District, :
Stroudsburg Area School District, :
Parkland School District, Carlynton :
School District and Seneca Valley :
School District, : No. 49 M.D. 2022
Respondents :

ORDER

AND NOW, this 1st day of December, 2022, the jurisdiction-based and
mootness-based Preliminary Objections to the Petition for Review filed on behalf of
each of the individual Respondents are SUSTAINED. Secretary Ortega’s
Application for Summary Relief in the Form of a Motion to Dismiss the Petition for
Review is GRANTED. Parkland School District’s Application for Relief in the
Form of a Motion to Dismiss the Petition for Review is GRANTED. Petitioners’
Application for Summary Relief is DISMISSED as moot. Petitioners’ Petition for
Review in the Nature of a Complaint for Declaratory Relief is DISMISSED.

__________________________________
CHRISTINE FIZZANO CANNON, Judge