Opinion
No. 27 M.D. 2012
05-23-2012
R.S.B. and R.D.B. minors, by and through their parent, Orlene Debbie Byrd, and R.C.B. and A.C.B. minors, by and through their parent, Bige Chambers, and M.D. and T.F. minors, by and through their parent, Tamika M. Friend, and J.R.S. and J.S.S. minors, by and through their parent, Myeshia L. Foster, and L.H. minor, by and through her parent, Kamesha Hampton, and Chester Upland Citizens for Educational Progress (CUCEP), Petitioners v. Department of Education, Commonwealth of Pennsylvania and Chester Upland School District, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court are preliminary objections filed by the Commonwealth of Pennsylvania, Department of Education (Department) in response to a petition for review in the nature of mandamus filed by R.S.B. and R.D.B., minors, by and through their parent Orlene Debbie Byrd (Byrd) et al seeking injunctive relief to ensure continued funding of the Chester Upland School District (School District) for the remainder of the 2011-2012 school year and beyond for the education of students enrolled in the School District.
The other parties are R.C.B and A.C.B; M.D. and T.F; J.R.S. and J.S.S.; and L.H., all students in the School District. Chester Upland Citizens for Educational Progress are also Petitioners.
On January 13, 2012, Byrd filed a petition for review in our original jurisdiction on behalf of students of the School District whom she alleges face the "very real prospect that they will no longer receive an education in the coming days or weeks as the District will soon lack the financial resources to operate its schools and fiscal constraints will prevent students from meeting state standards for the full school year." (Petition for Review at 4.) She states that while the Department and the School District continue to blame each other for the crisis and notes the recent filing of a federal lawsuit by the School District against the Department seeking federal and state funding under federal special education law and the United States Constitution, neither has any plan to ensure the continuing education of the School District's 3,650 students for the remainder of the 2011-2012 school year in accordance with state standards and requirements.
Byrd is seeking emergency relief in the nature of mandamus from this Court and requesting declaratory and injunctive relief to ensure that the students in the School District continue to receive an education in accordance with the clear legal duties of the Department and the School District under state law. She states that the statutory rights at issue emanate from rights guaranteed to every child under Pennsylvania law: "Public education in Pennsylvania is a fundamental right guaranteed by Article III, Section 1 of the Pennsylvania Constitution." School District of Wilkinsburg v. Wilkinsburg Education Association, 524 Pa. 335, 343, 667 A.2d 5, 9 (1995). According to her petition, Byrd explains that the School District has been operating in a state of financial and educational distress for over 17 years. It was first officially certified as financially distressed in 1994, and a Special Board of Control was appointed to manage and operate the School District in place of the elected board of school directors. In 2000, following the enactment of the Education Empowerment Act, 24 P.S. §§17-1701-B - 17-1716-B, the School District was certified as an Education Empowerment District because of its history of low standardized test performance. An Empowerment Board of Control replaced the Special Board of Control. Three years later, the Empowerment Board of Control was replaced by a new Special Board of Control. In 2006, this Court entered an order and placed the School District under the supervision of a Receiver. Commonwealth of Pennsylvania v. Chester Upland School District (No. 496 M.D. 2005). The Receiver was the Secretary of Education. On July 1, 2010, the Board of School Directors resumed governing the School District.
Sections 1701-B-1716-B of the Act of March 10, 1949, P.L. 30, as amended, added by the Act of May 10, 2000, P.L. 44.
Byrd continues to state that during the 2011-2012 fiscal year, federal and state revenues to the School District decreased by more than $24 million. This meant a 44% cut from the School District budget. During the 2011-2012 school year, the School District experienced a significant cash-flow crisis that threatened to undermine its ability to meet its payroll and other operating costs. The School District determined on January 10, 2012, that as of January 18, 2012, it would have insufficient funds to continue operations. On January 12, 2012, the School District filed a lawsuit in federal court seeking a temporary restraining order against the Department on the ground that the Department threatened irreparable harm to the School District by failing to provide state and federally-mandated funding to the extent that the School District would be unable to meet its payment obligations as of January 18, 2012.
While the Department and the School District have reported that the School District may remain open in the absence of sufficient funding, it would depend on the goodwill of the faculty who would choose to work without pay in the event the School District could not meet its payroll obligations. No unions have agreed to work without pay. Neither the Department nor the School District has made arrangements for the students attending the School District's schools to continue receiving an education after the School District runs out of funding in the next few weeks and to ensure that all students receive an education that meets state standards for the full school year. The financial crisis now poses imminent harm to students in the School District due either to the cessation of their education or to fiscal constraints that prevent their education in accordance with state standards for the full school year.
In Count I - Writ of Mandamus, Byrd alleges that mandamus is warranted due to the failure of the Department and the School District to take the necessary actions to comply with state laws and to fulfill their obligations to ensure that all students in the School District continue to receive an education. Specifically, she points out that they have a duty to ensure the legal entitlement of every child between 6 and 21 to attend public schools in the child's school district, see 24 P.S. §13-1301, and that they have a duty to ensure 180 days of school instruction each year for students pursuant to 24 P.S. §15-1501. The Department and the School District have also failed to undertake all actions necessary to permit the School District schools to remain open for the remainder of the school year, including failing to comply with the Department's duty and the School District's duty to investigate and anticipate fiscal conditions; the School District's duty to make payroll obligations preferential claims, and the duty of the Department to conduct independent audits of the finances of the School District. See Section 687 of the Code, 24 P.S. §6-687 (regarding the annual budget; additional or increased appropriations; transfer of funds); 24 P.S. §24-2410 (regarding the investigation of financial records by the Superintendent of Public Instruction); and 24 P.S. §11-1155 (regarding preferred claims; short term loans).
Section 1301 of the Public School Code (Code) of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §13-1301, provides:
Every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years, may attend the public schools in his district, subject to the provisions of this act. Notwithstanding any other provision of law to the contrary, a child who attains the age of twenty-one (21) years during the school term and who has not graduated from high school may continue to attend the public schools in his district free of charge until the end of the school term.
Section 1501 of the Code, 24 P.S. §15-1501, provides:
All public kindergartens, elementary and secondary schools shall be kept open each school year for at least one hundred eighty (180) days of instruction for pupils.
Section 2410 of the Code, 24 P.S. §24-2410, provides:
The Superintendent of Public Instruction may investigate the financial records of any school district in person or by his authorized representative.
For the purpose of such investigation, the same duties are imposed upon all boards of school directors, their members, their officers, agents and employes as are imposed by this act with respect to the audit of the accounts of school districts and the officers thereof, and the same powers are conferred upon the Superintendent of Public Instruction or his authorized representative as are conferred by this act upon school auditors in auditing the finances of school districts.
Section 1155 of the Code, 24 P.S. §11-1155, provides:
The payroll obligations of each school district shall be preferential claims. It shall be the duty of the board of school directors of each district to provide for the payment of payroll obligations before authorizing the payment of any other current expense except for fuel, water, electric service, or such supplies as are actually essential for keeping the schools in session. In order to meet payroll requirements the board shall, if necessary, negotiate such short term loans as are necessary and possible in accordance with the law governing the borrowing powers of the district.
In the event the payment of salaries of employes of any school district is not made when due, the school district shall be liable for the payment of same, together with interest at six per centum (6%) per annum from the due date: Provided, That no school district shall be required to pay interest on unpaid salaries, if the failure to pay salaries is occasioned by the failure of the Commonwealth to make payment of semi-annual allotment of appropriation at the time that such payment is due.
In Count II - Injunctive Relief, Byrd alleges that the Department and the School District have failed to fulfill mandatory state laws obligations in violation of multiple provisions of the Pennsylvania School Code, and without court intervention, Byrd will suffer immediate and irreparable harm for which there is no other appropriate or adequate remedy at law.
Byrd requests this Court declare that the Department and the School District have violated statutory duties requiring specific actions needed to ensure the ongoing education of students enrolled in School District schools in accordance with state standards for the full school year; enter an injunction to ensure the continued funding of schools and the education of students for the remainder of the 2011-2012 school year and to provide such oversight as may be necessary to enforce such an order, including the appointment of a Special Master; enter an injunction directing the Department and the School District to develop a joint five-year plan to ensure the continuing education of all students in the School District beyond the 2011-2012 school year in accordance with state standards.
In response to Byrd's petition, the Department has filed preliminary objections, which, among other reasons, seek to have the claim dismissed because it is not ripe for resolution because no case or controversy exists as none of the events pled in Byrd's petition for review have actually occurred. The basis of Byrd's petition for review is that the students will not receive the 180 days of education to which, by law, they are entitled. However, Byrd's petition only avers that the Department and the School District will at some point in the future fail in their obligations to:
In order to sustain preliminary objections in the nature of a demurrer, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party by refusing to sustain the objections. Smith v. Pennsylvania Employees Benefit Trust Fund, 891 A.2d 874, 881 (Pa. Cmwlth. 2006). In considering preliminary objections, the courts are bound to accept as true all factual averments in the petition and accept all reasonable inferences which may be deduced from well pleaded facts when examining the legal sufficiency of the preliminary objections. O'Hara Sanitation v. Department of Environmental Resources, 557 A.2d 453 (Pa. Cmwlth. 1989).
Other preliminary objections filed by the Department are that the petition should be dismissed because whether schools should remain open is a political question over which the courts have no jurisdiction and that it seeks to compel performance of discretionary duties and mandamus will not lie. We need not address those issues based on the way we have resolved the ripeness issue. --------
• Ensure the continued education of children in their resident district;
• Ensure compliance with compulsory attendance laws;
• Issue public notice and hold hearings prior to school closings;
• Conduct all necessary financial, budgetary and auditing obligations;
• Ensure sufficient qualified employees to satisfy curriculum and graduation requirements and meet state standards; and upon school closings, assign children to other schools.
Subject matter jurisdiction requires the presence of a justiciable controversy. A claim based on speculative anticipated events is not justiciable. Berger v. Department of Environmental Resources, 400 A.2d 905, 907 (Pa. Cmwlth. 1979) ("[A] declaratory judgment is not to be employed for the determination of rights in anticipation of an event which may never occur.") Even assuming what Byrd is requesting is a non-discretionary act, we cannot issue an order in mandamus to compel an act that the Department and the School District are providing - schooling. Because none of these events have occurred and are only speculative and the School District schools remain open, the claim is not yet ripe because there is no actionable case or controversy.
Accordingly, we sustain that preliminary objection and Byrd's petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge Judge Simpson concurs in the result only.
Judges Cohn Jubelirer and Leavitt did not participate in the decision in this case. ORDER
AND NOW, this 23rd day of May, 2012, in accordance with this opinion, we sustain the preliminary objection filed by the Department of Education, and Petitioner's petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge