            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Ramos, Scott Armstrong,               :
and James Williams,                          : No. 150 M.D. 2016
                                             : Submitted: July 22, 2016
                            Petitioners      :
                                             :
                     v.                      :
                                             :
Allentown Education Association;             :
Public School Employees                      :
Retirement System; and Allentown             :
School District,                             :
                                             :
                            Respondents      :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                  FILED: December 21, 2016


              Before this court, in our original jurisdiction, are: (1) the Petition for
Review in the Nature of a Complaint for Declaratory and Equitable Relief (Petition)
filed by Steven Ramos, Scott Armstrong, and James Williams (Petitioners); (2) the
Answer and New Matter filed in response by respondent Allentown School District
(School District);1 (3) Preliminary Objections filed by respondent Allentown

       1
          The School District is a public employer as defined in section 301(1) of the Public
Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.301(1). (School
District’s Answer ¶8.)
Education Association (AEA); 2 (4) Preliminary Objections filed by the Public School
Employees’ Retirement System3 (PSERS), and joined in by the School District; and
(5) Petitioners’ Application for Summary Relief.


               This court has jurisdiction over this matter pursuant to section 761 of the
Judicial Code, 42 Pa. C.S. §761. Section 761(a)(1) of the Judicial Code, 42 Pa.C.S.
§761(a)1), provides that the Commonwealth Court has original jurisdiction of all civil
actions or proceedings against the Commonwealth government.                       Here, we have
jurisdiction because PSERS is a respondent. Additionally, pursuant to section 761(c)
of the Judicial Code, 42 Pa.C.S. §761(c), this court has ancillary jurisdiction over the
remaining respondents because Petitioners’ claims against the respondents are related
to the claims against PSERS.


                                      Procedural Posture


               On February 24, 2016, Petitioners filed the Petition and an Application
for Summary Relief, requesting that this court declare as unconstitutional PSERS’
“pledging of the Commonwealth’s credit to individuals working full-time for a


       2
          AEA is “the exclusive representative for collective bargaining of . . . classroom teachers,
salaried substitute teachers, guidance counselors, and school nurses, among others.” (School
District’s Answer ¶14.)

       3
         The Public School Employees’ Retirement Board, “which transacts business under the
name of PSERS, 24 Pa. C.S. §8521(f), is an independent administrative board of the
Commonwealth of Pennsylvania. 24 Pa. C.S. §8501(a).” (PSERS’ Prelim. Obj. at ¶2.) PSERS
administers the retirement system for public school employees “pursuant to the Public School
Employees’ Retirement Code,” 24 Pa. C.S. §§8101-8536 (Retirement Code). (Id.)



                                                 2
teachers’ union” under the practice of “full release time,” as provided for in
“collective bargaining agreements (CBAs) [negotiated] between” AEA and the
School District since 1990. (Pet. at 1-2.) Petitioners aver that “full release time
allows the AEA [p]resident to work full time for the AEA while still receiving wages,
benefits including insurance, and other contractual advantages including seniority
preferences and pension credits, as if he or she was still a public employee.” (Pet. at
2.) Petitioners aver that full release time under the CBAs violates Article VIII,
section 8 of the Pennsylvania Constitution.4 (Id. ¶¶39-44, 57, 115.) Additionally,
Petitioners allege that AEA and the School District were without authority to bargain
for the full release time as agreed to in the CBA. (Id. at 17-25.) Petitioners claim
that the School District and AEA lacked authority to enter into a CBA with respect to
the AEA president, whom Petitioners claim is no longer a public employee, because
she works full-time as AEA’s president. Petitioners argue that the AEA president or
any other employee on full release time is not a public employee within the meaning
of section 1101-A of the Public School Code of 1949,5 or section 301(2) of the Public
Employe Relations Act,6 and that the School District is without authority to pay the
salary of, or provide public employment benefits to, a union employee. (Id. at 19-
22.) Petitioners further argue that Article 28 of the CBA is contrary to the clearly




       4
            Article VIII, section 8 of the Pennsylvania Constitution states in pertinent part, “The
credit of the Commonwealth shall not be pledged or loaned to any individual, company, corporation
or association . . . .”

       5
           Act of March 10, 1949, P.L. 30, added by Act of July 9, 1992, P.L. 403, 24 P.S. §11-
1101-A.

       6
           Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.301(2).


                                                 3
expressed public policy of obtaining a better education for children and, therefore,
may not be enforced. (Id. at 24.)


               Alternatively, Petitioners allege that PSERS granted pension credit to
current AEA President Debra A. Tretter and former AEA President Melvin Riddick
for work related to their AEA activities, contrary to sections 8102 and 8302(b) of the
Public School Employees’ Retirement Code7 (Retirement Code). (Id. at 28 and ¶115;
Appl. for Summ. Relief at 17 and ¶92.)


               Petitioners request that this court declare that AEA, PSERS and the
School District have acted contrary to law and that we grant a permanent injunction
against continuance of the practice and order return of all improperly disbursed
funds, “including the full amount of the salary, benefits, and pension illegally taken
and accrued under the full time release provision.” (Id. at 28.)


               The School District filed an Answer and New Matter. In its New Matter,
the School District raised three issues which it has failed to brief or raise in its
statement of questions involved. First, the School District asserts that Petitioners
failed to exhaust administrative remedies because they did not first raise their claim
with the Pennsylvania Labor Relations Board, which it claims has exclusive
jurisdiction to determine whether the parties are permitted to bargain collectively
over any particular subject matter, including full release time without loss of pay or
benefits for the union’s agent. (School District’s New Matter ¶1.) Second, the
School District claims that Petitioners’ claim is barred by various statutes of

      7
          24 Pa. C.S. §§8101-8536.


                                           4
limitations. (Id. ¶¶2, 3, 5.) Without stating what those statutes of limitations might
be, the School District simply avers: “applicable statute of limitations, set forth in the
Public Employee [sic] Relations Act,” the Judicial Code, and the Retirement Code.
(Id.) Third, the School District asserts, without any elaboration, that Petitioners lack
standing. (Id. ¶¶9-17.) Because the School District has not briefed those claims and
not identified them in its statement of questions involved, the claims are waived. See
Plank v. Monroe County Tax Claim Bureau, 735 A.2d 178, 182 n.9 (Pa. Cmwlth.
1999) and Pa. R.A.P. 2116(a)8.


               However, the School District has preserved the issue of whether
Petitioners have failed to exhaust administrative remedies, i.e., that Petitioners should
have first filed their claim with PSERS. (School District’s New Matter ¶4; School
District’s Br. at 1.) Pursuant to Pa. R.A.P. 2137, the School District joins in PSERS’
preliminary objections, motion to dismiss, and brief regarding that issue.


               Respondent PSERS filed a preliminary objection9 on the ground that
Petitioners failed to exhaust their administrative remedies. (PSERS’ Prelim. Obj. at
       8
        Pa. R.A.P. 2116(a) provides that “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”
       9
         Preliminary objections to an original jurisdiction petition for review are permissible under
Pa. R.A.P. 1516(b). Our review of preliminary objections is limited to the pleadings. Pennsylvania
State Lodge, Fraternal Order of Police v. Department of Conservation and Natural Resources, 909
A.2d 413, 415 (Pa. Cmwlth. 2006), aff'd, 924 A.2d 1203 (Pa. 2007). In reviewing Respondents’
preliminary objections, we must accept as true all well pleaded facts that are material and all
inferences reasonably deducible from the facts. Ohio Casualty Group of Insurance Companies v.
Argonaut Insurance Company, 500 A.2d 191, 194 (Pa. Cmwlth. 1986.) “‘In order to sustain
preliminary objections, it must appear with certainty that the law will not permit recovery, and,
where any doubt exists as to whether the preliminary objections should be sustained, the doubt must
be resolved in favor of overruling the preliminary objections.’” Pennsylvania Builders Association
(Footnote continued on next page…)
                                                 5
1, 3). PSERS asserts that the doctrines of administrative jurisdiction and exhaustion
of administrative remedies require that a determination first be made at the
administrative agency level. (Id.) PSERS observes that Petitioners did not pursue an
administrative remedy with PSERS or report their claims to PSERS so that PSERS
could investigate the claims. (Id. ¶9.) Subsequently, after receiving the School
District’s Answer, PSERS added the preliminary objection averring mootness.
(Pet’rs’ Br. in Resp. to Resp’ts’ Brs. in Supp. of Prelim. Obj. at 25.)


              AEA’s preliminary objections claim that Petitioners: (1) lack standing,
(2) failed to exhaust their administrative remedies before PSERS, and (3) failed to
state a claim upon which relief may be granted. They also claim that, if this court
dismisses the petition as to PSERS, we will lack jurisdiction over the Petitioners’
remaining allegations.


                                        Background


              This case is about a provision in the CBA between AEA and the School
District that authorizes full release time from school duties for the AEA president to
conduct AEA business “without a loss in wages, benefits or other contractual




(continued…)

v. Department of Labor and Industry, 4 A.3d 215, 220 (Pa. Cmwlth. 2010) (en banc) (citation
omitted). Preliminary objections “should be sustained only in cases that are clear and free from
doubt.” League of Women Voters of Pennsylvania v. Commonwealth, 692 A.2d 263, 267 (Pa.
Cmwlth. 1997) (en banc).


                                               6
advantages.” (Article 28 of the CBA.) The undisputed10 facts are as follows.
              Article 28 of the 2012 to 2015 CBA states:

              Article 28 – ASSOCIATION PRESIDENT RELEASE
              TIME

              For the term of this Agreement, the President shall be
              entitled to full released time from Professional duties to
              conduct Association business during the work day, without
              loss in wages, benefits or other contractual advantages.
              Any grants, stipends, awards or other alternative financial
              arrangements made between the AEA and the PSEA/NEA
              for President’s released time shall be remitted to the
              District.
(Pet. at Ex. E; School District’s Answer ¶16; PSERS’ Br. in Opp’n to Pet’rs’ Appl.
for Summ. Relief at 2.) (emphasis added.) A similar provision authorizing full
release time has been included in every CBA since 1990. (School District’s Answer
¶17; PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 2.)


              Under the terms of Article 28 of the CBA, AEA is not obligated to, and
in fact does not, reimburse the School District for any of the School District’s costs

       10
           Petitioners and Respondents School District and PSERS agree on the material issues of
fact. (See Pet’rs’ Appl. for Summ. Relief ¶8; School District’s Answer & New Matter; and PSERS’
Br. in Opp’n to Appl. for Summ. Relief at 3-6.) AEA argues that there are material facts in dispute.
(AEA’s Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 8.) AEA asserts that the record does not
contain facts as to how the AEA presidents spend their time. (Id.) AEA contends that the work the
presidents performed for AEA constitutes “school service” for purposes of the Retirement Code,
(Id. at 9) and that, by “being the designated point-person for the labor management requirements,
which are mandated under Pennsylvania law,” the president performed a service that benefited
School District students and employees. (PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief,
App. A, AEA’s appeal on behalf of Debra Tretter from PSERS’ adjustment letter at 9.) However,
there is no question that the AEA president does not perform classroom work. (See School
District’s Answer and New Matter ¶22.)



                                                 7
associated with full release time. (School District’s Answer ¶19.) “While on ‘full-
release time,’ the AEA President leaves the classroom and instead performs full-time
work for the AEA but continues to receive wages and benefits from the (School
District) that is not reimbursed by AEA.” (PSERS’ Br. in Opp’n to Pet’rs’ Appl. for
Summ. Relief at 2.) The current AEA president left the classroom in 2009 to assume
full release time duties for AEA, pursuant to the CBA, (School District’s Answer at
¶¶20-22, 31; PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 2) and, during
that time, has continued to receive wages and benefits from the School District,
funded by taxpayers. (School District’s Answer ¶¶11, 23.) Since 2009, the current
AEA president has received approximately $555,000 in wages. (School District’s
Answer ¶24.)


             The School District admits that Article 19 of the CBA states that
“tenured professional employees shall be retained on the basis of seniority rights
acquired through continuous tenured, professional service in the Allentown School
District in any or all areas of certification.” (Id. ¶31.) The School District further
admits that AEA president “Tretter left ‘continuous tenured, professional service in
the Allentown School District’ in 2009 yet has continued to accrue seniority. . . .”
(Id.) Current AEA president Tretter, while on full release time, “has continued to
accrue other contractual advantages . . . including seniority preference” and “various
preferences over a number of other teachers, including but not limited to employment
preference in the event of furloughs, transfers and recalls.” (Id. ¶¶29-30.)


             Petitioners claim that current AEA president Tretter “has continued to
accrue pension credit despite no longer working in the classroom,” that the School


                                           8
District has contributed over $76,000 in pension contributions to PSERS on her
behalf since 2009, and that the Commonwealth has reimbursed the School District
over $47,000 for that period for her pension. (Pet. ¶36.) In its Answer, the School
District states that it “is without sufficient knowledge and information” to respond to
the allegation. (School District’s Answer ¶36.) Petitioners also aver that AEA
president Tretter received over $134,000 in benefits from the School District. (Pet.
¶24.)


             Former AEA president Riddick was on full release time from 2001
through 2009 while working “full-time . . . for the AEA.” (Id. ¶25.) During that
time, he received “over $512,000 in wages” from the School District. (Id. ¶¶26-27.)


             Petitioners assert that PSERS’ grant of pension credit to both the current
and former AEA presidents is contrary to sections 8102 and 8302(b) of the
Retirement Code, 24 Pa. C.S. §§8102 and 8302(b). Section 8102 of the Retirement
Code defines “Leave for service with a collective bargaining organization” as:


             Paid leave granted to an active member by an employer for
             purposes of working full time for or serving full time as an
             officer of a Statewide employee organization or a local
             collective bargaining representative under the act of July
             23, 1970 (P.L. 563, No. 195), known as the Public Employe
             Relations Act: Provided, . . . that the employer shall fully
             compensate the member, including, but not limited to,
             salary, wages, pension and retirement contributions and
             benefits, other benefits and seniority, as if he [or she] were
             in full-time active service; and that the employee
             organization shall fully reimburse the employer for such



                                           9
              salary, wages, pension and retirement contributions and
              benefits and other benefits and seniority. [11]


(Emphasis added.)

              Section 8302(b) of the Retirement Code states:

              Approved leaves of absence.—An active member shall
              receive credit for an approved leave of absence provided
              that:
                    (1) the member returns for a period at least equal
                          to the length of the leave or one year,
                          whichever is less, to the school district which
                          granted his leave, unless such condition is
                          waived by the employer; and

                      (2)    the proper contributions are made by the
                             member and the employer.

              PSERS has guidelines to determine whether a person not employed by a
school district is eligible to accrue pension credit. (School District’s Answer ¶38.)
Specifically, PSERS has guidelines for purchasing credit “for an Approved Leave of
Absence – Employer Verification.” (Id. ¶¶38, 42.) “[T]here is no record of a leave of
absence for AEA President Debra Tretter being approved by the Allentown School

       11
          PSERS has explained that, in 1992, the General Assembly amended the Retirement Code
by adding section 8102, “to permit a school employee to receive retirement credit if placed on an
approved leave of absence to work full time for a labor union and inserted the definition of ‘leave
for service with a collective bargaining organization.’” (PSERS’ Br. in Opp’n to Pet’rs’Appl. for
Summ. Relief at 5.) PSERS explained that the amendment was in response to Attorney General
Opinion No. 83-11, dated October 19, 1983, in which the Attorney General opined that a person on
leave from employment as a public school employee to work full-time for a public school labor
union is not entitled to active membership in PSERS because he or she did not “meet the definition
of a ‘school employee,’ and that such service could not qualify as an approved leave of absence,
because such leave was not authorized under [s]ection 8302(b) of the Retirement Code, 24 Pa. C.S.
§8302(b), which defined approved leaves of absence.” (PSERS’ Br. in Opp’n to Pet’rs’Appl. for
Summ. Relief at 4-5.)


                                                10
District Board of Directors.” (Id. ¶44.) Rather, the School District reported Tretter to
PSERS “as an active member and not as a member on an approved leave of absence
or leave with collective bargaining unit.” (PSERS’ Prelim. Obj. ¶6.) Neither current
president Tretter nor former president Riddick “was placed (by the School District)
on a ‘leave with collective bargaining organization,’” as required by section 8102 of
the Retirement Code. (PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 2.)


                  Standing of Petitioners Ramos and Armstrong


             Initially, we address AEA’s preliminary objection that Petitioners lack
standing to bring their Petition. “Standing is determined by the facts that exist at the
time the complaint is filed.” Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir.
2001). Thus, we examine whether Petitioners had standing at the time they filed their
Petition.


             AEA asserts that Petitioners lack standing because they do not have a
“substantial interest” in the outcome that “surpasses the common interest of all
citizens in procuring obedience to the law,” because they have not, or will not, suffer
any immediate or personal harm, and because they do not have actual harm, any harm
they might suffer is “remote or speculative.” (AEA’s Prelim. Obj. ¶¶ 8, 9, 11.)


             Petitioners Ramos and Armstrong are Allentown residents and taxpayers
whose property taxes fund Allentown schools pursuant to section 672 of the Public
School Code, 24 P.S. §6-672. The School District admits that the property taxes of
Petitioners Ramos and Armstrong “are among the property taxes that fund the


                                          11
Allentown School District” and that “a portion of the property taxes received are
provided in the form of salary to the AEA President to perform full-time work in the
capacity of AEA President.”12          (School District’s Answer ¶¶10-11.)            Petitioners
attempt to take advantage of the relaxed requirements for taxpayer standing first
identified in Application of Biester, 409 A.2d 848, 851 (Pa. 1979).


              In Biester, the Pennsylvania Supreme Court “determined that certain
cases warrant the grant of standing to taxpayers where their interest arguably is not
substantial, direct and immediate.” Sprague v. Casey, 550 A.2d 184, 187 (Pa. 1988).
The purpose behind “Biester’s relaxation of the general rules regarding standing . . .
is to enable citizens to challenge governmental action which would otherwise go
unchallenged in the courts.” Keith v. Pennsylvania Department of Agriculture, 116
A.3d 756, 759 (Pa. Cmwlth. 2015).


              In Consumer Party of Pennsylvania v. Commonwealth, 507 A.2d 323,
329 (Pa. 1986), overruled on other grounds, Pennsylvanians Against Gambling
Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 408 (Pa. 2005), our Supreme
Court summarized the Biester Court’s exception to the usual requirements of
standing, as follows:


              [I]n Biester, we held that a taxpayer seeking standing to sue
              must allege a substantial, direct, and immediate interest in
              the outcome of the suit unless the taxpayer can show:


       12
          Petitioner Armstrong is also a former school board member. (Pet. at ¶4; School District’s
Answer at ¶4.) Although that may make him more informed than the average taxpayer, it adds
nothing to his standing claim.


                                                12
                  1. the governmental         action    would     otherwise     go
                     unchallenged;

                  2. those directly and immediately affected by the
                     complained of expenditures are beneficially affected
                     and not inclined to challenge the action;

                  3. judicial relief is appropriate;

                  4. redress through other channels is unavailable; and

                  5. no other persons are better situated to assert the claim.

(Emphasis added.) Applying those five factors, the Supreme Court in Consumer
Party of Pennsylvania determined that the taxpayers had standing to challenge the
constitutionality of the Public Official Compensation Law of 1983.13 507 A.2d at
329. Thus, to determine whether Petitioners Ramos and Armstrong have taxpayer
standing, we must apply Biester’s five factors as identified by our Supreme Court in
Consumer Party of Pennsylvania.


               The first factor of the Biester analysis is whether the governmental
action would otherwise go unchallenged. The lack of other legal actions against the
claimed misconduct is evidence that the governmental action would otherwise go
unchallenged. Pennsylvania Federation of Dog Clubs v. Commonwealth, 105 A.3d
51, 58 (Pa. Cmwlth. 2014), aff’d, 115 A.3d 309 (Pa. 2015).                    Here, although a
provision for full release time has been included in every CBA since 1990, the
practice has gone unchallenged for over 25 years. (Pet’rs’ Reply Br. to Resp’ts’ Brs.
in Supp. of Prelim. Obj. at 6; School District’s Answer ¶17.) Petitioners claim that

      13
           Act of September 30, 1983, P.L. 160, as amended, 65 P.S. §§366.1-336.4.



                                                13
the full release time provision has not been heretofore challenged and that, absent the
current case, “will otherwise go unheard.” (Pet’rs’ Reply Br. at 6.). AEA does not
maintain otherwise.14


              AEA asserts that “the ballot box” is an effective means to challenge the
practice. (AEA’s Br. in Supp. of Prelim. Obj. at 9-10.) AEA contends that, “[if] the
people of the District do not like the agreements made by the school board, the
answer is to elect new board members.” (Id. at 10.) However, we have made clear
that taxpayer standing is an additional control over public officials. In Keith, 116
A.3d at 759 (citations omitted), we explained, “[t]axpayer standing ‘allows the courts,
within the framework of traditional notions of ‘standing,’ to add to the controls over
public officials inherent in the elective process the judicial scrutiny of the statutory
and constitutional validity of their acts.’” If the ballot box were the only permissible
control, there would be no need for taxpayer standing.


              Moreover, as Petitioners point out, Petitioner Armstrong attempted to
challenge the practice when he was a School District board member. (Pet. ¶6.) At
the October 8, 2015, meeting of the School District’s Finance Committee-of-the-
Whole, Petitioner Armstrong, who was at that time a school board member, requested
that the School District Solicitor research the legality of the School District’s
payment of the AEA president’s salary. (Pet., Ex. Q at 3; School District’s Answer
¶53.) The Solicitor’s October 21, 2015, legal memorandum stated that, under section

       14
           Instead, AEA asserts that Petitioners should have first raised the issue with PSERS and
“PSERS would have initiated an appropriate investigation and rendered a decision on the matter.”
(AEA’s Br. in Supp. of Prelim. Obj. at 8-9.) Because AEA’s claim in this regard also goes to
factors three, four, and five of the Biester test, we consider it in relation to those factors.


                                               14
8102 of the Retirement Code, there is no authority “for the District to pay the salary
of the union president to perform union responsibilities, absent reimbursement by the
Association.”    (Pet’rs’ Br. in Supp. of Appl. for Summ. Relief, App. 1 at 1.)
Thereafter, at the November 19, 2015, School District board meeting, Petitioner
Armstrong, still a School District board member, stated that “the solicitor’s opinion
[was] that paying the salary of the full-time teacher union’s president was illegal.”
(Ex. C to Pet., School Board Minutes, 11/19/15, at 6.) Petitioners assert that, despite
receipt of the solicitor’s opinion, the “board refused to take action.” (Pet. ¶12.d.) (See
also Pet. at Ex. B, Affidavit of Scott Armstrong ¶9; Pet. at Ex. C, School Board
Minutes, 11/19/15, at 6).       None of the Respondents have denied Petitioners’
assertions in this regard.


             AEA also argues that the practice will not otherwise go unchallenged
because the practice can be challenged through the collective bargaining process,
where the interests of the School District and AEA are clearly opposed. (AEA’s Br.
in Supp. of Prelim. Obj. at 10.) However, that has not happened. As Petitioners note,
the practice has continued for over 25 years as a result of the School District’s
collective bargaining with AEA. (See School District’s Answer ¶17.) Thus, we
conclude that Petitioners have satisfied the first factor of the Biester standing test.


             The second factor of the Biester analysis is whether those directly and
immediately affected by the complained of expenditures are beneficially affected and
not inclined to challenge the action. Here, the School District was not inclined to
challenge the practice, even after the School District Solicitor rendered a legal
opinion that the practice was illegal. See discussion, supra. Petitioners assert that


                                            15
both the School District and AEA benefit from the practice of full release time and
are, therefore, not inclined to challenge the expenditure. The “school board has
repeatedly voted in support of full release time and receives the benefit of using full
release time as a bargaining chip to secure other concessions in collective
bargaining,” AEA “gets a full-time employee complete with salary and benefits
without having to pay for them,” and PSERS continues to receive contributions from
the School District and the full release employees. (Pet. ¶12.b; Pet’rs’ Reply Br. at
8.)


               AEA responds that, because the full release time “provision was
bargained for as part of the negotiation process,”15 we may not find that the School
District was beneficially affected by the provision “[a]bsent a specific allegation of
fraud or collusion.” (AEA’s Prelim. Obj. ¶20.) We disagree. The CBA is the

       15
           A similar claim was made by the School District, i.e., that section 701 of the Public
Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.701,
required the School District to bargain collectively with AEA over the subject of release time for
the AEA president and, therefore, the School District cannot be liable for doing what it was required
to do under the law. (School District’s New Matter ¶6.) Section 701 of PERA merely defines what
collective bargaining is. That section states:

               Collective bargaining is the performance of the mutual obligation of
               the public employer and the representative of the public employes to
               meet at reasonable times and confer in good faith with respect to
               wages, hours and other terms and conditions of employment, or the
               negotiation of an agreement or any question arising thereunder and
               the execution of a written contract incorporating any agreement
               reached but such obligation does not compel either party to agree to a
               proposal or require the making of a concession.

It does not require public employers to bargain collectively in violation of law. Indeed, it expressly
states that it “does not compel either party to agree to a proposal or require the making of a
concession.” Id.


                                                 16
consequence of the normal give and take process of negotiation. The collective
bargaining process, by its very nature, benefits both parties involved. Neither fraud
nor collusion is necessary to our analysis. Moreover, when considering preliminary
objections, we must accept the truth of Petitioners’ averments that the parties have
benefitted from the full release time practice.         See Keith, 116 A.3d at 759.
Additionally, Biester does not require that the School District receive a financial
benefit, just a benefit. See id. Thus, we determine that Petitioners have met the
second part of the Biester standing test.


             The third, fourth and fifth factors of the five-part Biester test are related
and, thus, we will discuss them together.        However, first we consider whether
Petitioner Williams has standing.

                           Standing of Petitioner Williams


             Williams is a public school teacher in Pennsylvania, although not in the
Allentown School District, and is a vested PSERS member, currently contributing to
PSERS and accruing pension credit. (Pet. ¶5 and Ex. D; Pet’rs’ Appl. for Summ.
Relief ¶55.) Petitioners allege that Williams has a “substantial, direct and immediate
interest in the proper functioning and solvency of PSERS, which is jeopardized by the
provision of pension credit and benefits to employees not permitted by law to receive
them.” (Pet. ¶13.) Petitioners argue that “[e]very individual receiving pension credit
and pension dollars who should not be enrolled in the system adds to PSERS’
financial problems” and lessens “PSERS members’ chances of receiving full
retirement benefits.” (Pet. ¶¶51, 52.) Petitioners assert that, pursuant to 24 Pa. C.S.
§8521, PSERS “owes a fiduciary duty to the members of the system and is obligated

                                            17
to ‘invest and manage the fund for the exclusive benefit of the members of the
system.’”16 (Pet’rs’ Reply Br. in Resp. to Resp’ts’ Brs. In Supp. of Prelim. Obj. at 14;
Pet. ¶13.)


                As a PSERS member, there is no question that Williams is owed a
fiduciary duty by the PSERS Board. See 24 Pa. C.S. §8521(e). As such he has
standing. Compare Pennsylvania School Boards Association, Inc. v. Public School
Employees’ Retirement Board, 863 A.2d 432, 442 (Pa. 2004) (holding that an
association lacked standing because it was not a “member” of the system).


                AEA, however, contends, without citing any authority, that, before
Williams may file a suit for breach of fiduciary duty, he must first give PSERS notice
of his concern and PSERS must fail to respond to his concern. (AEA’s Br. in Supp.
of Prelim. Obj. at 7.) AEA contends that the same administrative remedy available to
Petitioners Ramos and Armstrong is applicable to Petitioner Williams’ breach of
fiduciary duty claim. (See AEA’s Prelim. Obj. at 10-12.) Accordingly, we continue
our analysis of Petitioners’ standing by examining the administrative remedies that
Respondents claim are available to all Petitioners.




      16
           24 Pa. C.S. §8521(e) provides:

                Fiduciary status of board.—The members of the board, employees
                of the board, and agents thereof shall stand in a fiduciary relationship
                to the members of the system regarding the investments and
                disbursements of any of the moneys of the fund and shall not profit
                either directly or indirectly with respect thereto.


                                                  18
                      Administrative Remedies before PSERS


             The third, fourth and fifth factors of the five-part Biester taxpayer
standing test are: whether judicial relief is appropriate, whether redress through other
channels is available, and whether other persons are better situated to assert the claim.
See Consumer Party of Pennsylvania, 507 A.2d at 329. Because those factors relate
to the standing of Ramos and Armstrong as taxpayers, as well as Williams as a
PSERS member, we discuss them with respect to all three Petitioners.


             AEA asserts that redress through another channel was and is available to
Petitioners, making judicial relief inappropriate. (AEA’s Br. in Supp. of Prelim Obj.
at 9.) AEA states that “the issue is committed to the administrative jurisdiction of
PSERS” and, had Petitioners raised the issue with PSERS, “PSERS would have
initiated an appropriate investigation” and decided the matter. (Id.) Indeed, in its
preliminary objections, PSERS asks us to dismiss this case because Petitioners’ claim
that AEA’s president is not entitled to receive credited service is within the “primary
and exclusive jurisdiction” of the PSERS Board. (PSERS’ Prelim. Obj. ¶8.)


             AEA and PSERS contend that Petitioners have failed to exhaust
mandatory statutory remedies. Citing 2 Pa. C.S. §702 and 24 Pa. C.S. §8501(a), AEA
claims that PSERS “has exclusive jurisdiction to initially determine whether service
performed by an individual for a public school district in Pennsylvania is creditable
under the Public Employees Retirement Code, subject to appellate review.” (AEA’s
Br. in Supp. of Prelim. Obj. at 11) Citing the same statutes, PSERS claims that it
“has primary and exclusive jurisdiction regarding interpretation of the Retirement


                                           19
Code and the administration of member accounts, subject to appellate review.”
(PSERS’ Prelim. Obj. at 3.)


             There is no question that, where an administrative agency has exclusive
jurisdiction, this court is precluded from granting declaratory relief. See 42 Pa. C.S.
§7541(c)(2), which provides that declaratory relief is not available with respect to any
proceeding “within the exclusive jurisdiction of a tribunal other than a court.”
Therefore, we must determine whether PSERS has exclusive jurisdiction over
Petitioners’ claims.


             “Whether a matter lies within the exclusive jurisdiction or the primary
jurisdiction of an agency is for the legislature to direct by statute.” Sunrise Energy,
LLC v. FirstEnergy Corporation, ___ A.3d ___, (Pa. Cmwlth. No. 1282 C.D. 2015,
filed October 14, 2016), slip op. at 10 (en banc). Our examination of the statutes
cited by AEA and PSERS, however, does not show that PSERS has exclusive
jurisdiction over this matter. Specifically, 24 Pa. C.S. §8501(a) discusses only the
composition of the PSERS board; it says nothing about jurisdiction. Additionally, 2
Pa. C.S. §702 states only that a person “aggrieved by an adjudication of a
Commonwealth agency who has a direct interest in such adjudication shall have the
right to appeal” to a court. We fail to see how those statutes confer exclusive
jurisdiction on PSERS to hear this case. AEA has not identified any mandatory
statutory remedies that Petitioners were required to, or should have, used. It is
noteworthy that PSERS does not claim that any statutory remedies are available to
Petitioners. Accordingly, we reject Respondents’ assertion that Petitioners’ claims
are within the exclusive jurisdiction of PSERS.


                                          20
              Although PSERS does not have exclusive jurisdiction over Petitioners’
claims, Biester requires us to determine whether “redress through other channels” is
available. Thus, we next consider whether administrative remedies were available to
Petitioners and whether Petitioners were required to exhaust them before seeking
judicial relief.


              The exhaustion of administrative remedies requirement is a judge-made
rule intended to prevent premature judicial intervention into the administrative
process. National Solid Wastes Management Association v. Casey, 580 A.2d 893,
897 (Pa. Cmwlth. 1990) (en banc). Generally, parties “seeking relief must exhaust
available administrative remedies” before they may obtain judicial review. Ohio
Casualty Group of Insurance Companies v. Argonaut Insurance Company, 525 A.2d
1195, 1197 (Pa. 1987).      However, the doctrine of exhaustion of administrative
remedies “is neither inflexible nor absolute.” Feingold v. Bell of Pennsylvania, 383
A.2d 791, 793 (Pa. 1977). “The mere existence of a remedy does not dispose of the
question of its adequacy; the administrative remedy must be ‘adequate and
complete.’” Id. at 794 (citation omitted).



              Although PSERS has no internal regulations that require or permit
Petitioners to seek redress, Respondents refer us to the General Rules of
Administrative Practice and Procedures, at 1 Pa. Code Part 35, as the administrative
remedies which they claim Petitioners were required to follow. AEA and PSERS
assert that, pursuant to 1 Pa. Code §35.5, Petitioners could have filed an informal
complaint with PSERS by means of a letter. (AEA’s Br. in Supp. of Prelim. Obj. at
11.) If unsatisfied with the response to the informal complaint, Petitioners could file

                                             21
a formal complaint with PSERS, pursuant to 1 Pa. Code §35.9, “complaining of
anything done or omitted to be done by a person subject to the jurisdiction of an
agency, in violation of a statute or regulation administered or issued by the agency.”
(Id. at 12.) If the agency finds a violation of a statute or regulation that it has issued
or administers, 1 Pa. Code §35.9 directs that “the agency will either invite the parties
to an informal conference, set the matter for a formal hearing, or take another action
which in the judgment of the agency is appropriate.”                       (Id.)    AEA asserts that
Petitioners “could” also have petitioned PSERS for a declaratory order under 1 Pa.
Code §35.19.17 (Id. at 13.)


                In Pennsylvania Pharmacists Association v. Department of Public
Welfare, 733 A.2d 666, 672 (Pa. Cmwlth. 1999), we determined that the
administrative process at 1 Pa. Code Part 35 provided an adequate remedy for the
petitioners. In that case, the petitioners sought a declaration that outpatient pharmacy
rates implemented under a managed care program were invalid. In requiring that the
petitioners first exhaust their administrative remedy, we noted that they had already
begun the administrative process when, “pursuant to 1 Pa. Code §35.19,” they
formally requested that the Secretary of the Department of Public Welfare review the


      17
           1 Pa. Code §35.19 states:

                Petitions for declaratory orders.
                        Petitions for issuance, in the discretion of the agency, of a
                declaratory order to terminate a controversy or remove uncertainty,
                shall state clearly and concisely the controversy or uncertainty which
                is the subject of the petition, shall cite the statutory provision or other
                authority involved, shall include a complete statement of the facts and
                grounds prompting the petition, together with a full disclosure of the
                interest of the petitioner.


                                                   22
rates. Id. at 672. In contrast, here, Petitioners have not already begun administrative
proceedings. Also, they are not challenging “decision-making” by PSERS, but rather
the validity of a provision in the CBA between AEA and the School District.
Moreover, unlike the petitioners in Pennsylvania Pharmacists Association, here,
Petitioners have also made a constitutional challenge to section 8102 of the
Retirement Code.


            In support of its position that Petitioners were required to have first
sought relief from PSERS, AEA cites Keith, 116 A.3d at 760, where this court
determined that the petitioner dog owners met the Biester taxpayer standing test to
contest regulations promulgated by the Department of Agriculture concerning
commercial kennels. We held that redress through other channels was futile and that
judicial scrutiny was required to insure that the contested regulations were lawful
because, prior to filing suit, the petitioners had requested the Department of
Agriculture and the Independent Regulatory Review Commission to review the
regulations at issue, and both agencies declined to do so. However, that is not to say
that every case requires the submission of the issue to an administrative agency
before the taxpayers have standing.


            Recently, in Sunrise Energy, slip op. at 13, this court considered a
similar argument when the Public Utility Commission claimed authority to adjudicate
the controversy by means of “the General Rules of Administrative Practice and
Procedure.” We explained that “an agency cannot confer authority upon itself by
regulation. Any power exercised by an agency must be conferred by the legislature
in express terms.” Id. at 13-14. We noted that the procedure authorized by the


                                          23
General Rules of Administrative Practice and Procedure assume “an underlying
statutory basis for the agency’s exercise of an adjudicatory function.” Id. at 14.


             In Ohio Casualty Group of Insurance Companies v. Argonaut Insurance
Company, 500 A.2d 191, 194 (Pa. Cmwlth.), aff’d, 525 A.2d 1195 (Pa. 1987), we
declined to require an insurer to first exhaust the administrative remedies at 1 Pa.
Code Part 35, before bringing an action in our original jurisdiction. Our Supreme
Court affirmed, explaining that, “‘[w]here the administrative process has nothing to
contribute to the decision of the issue and there are no special reasons for postponing
its immediate decision, exhaustion should not be required.’” Ohio Casualty Group,
525 A.2d at 1197 (citation omitted). The Supreme Court pointed out that “[n]ebulous
claims of informal procedures or implied administrative powers are unavailing since
it is clear that without a concrete procedural remedy the litigant could in no way
achieve a resolution of his claim except by the grace of the party against whom he is
proceeding.” Id. at 1198. Our Supreme Court further explained:

             [I]t would clearly be better practice to first seek informal
             resolution of the claim, but the failure to follow the better
             practice does not mean the litigant is precluded from the
             only enforceable means by which he or she can obtain
             relief. The rule requiring exhaustion of administrative
             remedies is not intended to set up a procedural obstacle to
             recovery; the rule should be applied only where the
             available administrative remedies are adequate with respect
             to the alleged injury sustained and the relief requested.

Id.




                                           24
             Here, as in Ohio Casualty Group, it might have been better practice for
Petitioners to first attempt to resolve their claims with PSERS, but that is not to say
that they were required to do so. Additionally, at the time of the filing of the
complaint, it was far from clear whether the administrative procedures could have
afforded Petitioners their requested relief.


             “Courts should not be too hasty in referring a matter to an agency, or to
develop a ‘dependence’ on the agencies whenever a controversy remotely involves
some issue falling arguably within the domain of the agency’s ‘expertise.’” Elkin v.
Bell Telephone Company of Pennsylvania, 420 A.2d 371, 377 (Pa. 1980). In Elkin,
our Supreme Court provided the following guidance:


             [W]here the subject matter is within an agency’s
             jurisdiction and where it is a complex matter requiring
             special competence, with which the judge or jury would not
             or could not be familiar, the proper procedure is for the
             court to refer the matter to the appropriate agency. Also
             weighing in the consideration should be the need for
             uniformity and consistency in agency policy and the
             legislative intent. Where, on the other hand, the matter is
             not one peculiarly within the agency’s area of expertise, but
             is one which the courts or jury are equally well-suited to
             determine, the court must not abdicate its responsibility.
Id. (emphasis added).


             Here, the subject matter is not “complex” or “peculiarly within the”
expertise of PSERS, “but is one which the courts . . . are equally well-suited to
determine.” See id. As noted above, Petitioners are not challenging an adjudication
made by PSERS. Rather, they are challenging the School District’s practice of full


                                               25
release time, in particular when no reimbursement has been made by a union to the
school district. They are challenging the validity of a provision in the CBA between
AEA and the School District, specifically whether the CBA is consistent with section
8102 of the Retirement Code, and whether section 8102 violates the Pennsylvania
constitution. Those determinations do not require the special competence of PSERS.
Moreover, “judicial relief is appropriate” where the constitutionality of a statute is
challenged “since the determination of the constitutionality of an act is a function
ultimately left to the courts.” Consumer Party of Pennsylvania, 507 A.2d at 329. For
all of the above reasons, we conclude that Petitioners have satisfied the third and
fourth prongs of the Biester test for standing.


             The fifth Biester factor is whether other persons are better situated to
assert the claim. Recently, in Americans for Fair Treatment, Inc. v. Philadelphia,
___ A.3d ___ (Pa. Cmwlth., No. 1618 C.D. 2015, filed Nov. 21, 2016), we held that
an association did not meet the test for taxpayer standing to contest the validity of a
provision of a CBA between a school district and teachers’ union, as well as the
constitutionality of section 8102 of the Retirement Code. There, the school district
had in the past filed a declaratory judgment action attempting to cancel the provision
and was in a position to challenge the provision again because of the expiration of the
CBA. In contrast, here, the School District has shown no interest in challenging the
CBA provision. Additionally, in Americans for Fair Treatment, we determined that
PSERS has the power to challenge inflated pension claims and in fact had done so in
Kirsch v. Public School Employees’ Retirement Board, 985 A.2d 671 (Pa. 2009). It is
noteworthy that, in both Kirsch and Americans for Fair Treatment, the union had
fully reimbursed the school district and, thus, in Americans for Fair Treatment, we


                                           26
determined that there was no adverse effect on taxpayers or PSERS members. (Slip
Op. at 15).


              In stark contrast, here, the challenged CBA provision does not provide
for reimbursement, and all parties agree that no reimbursement has occurred. Thus,
all Petitioners have suffered an adverse effect from the continuing practice of full
release time – Ramos and Armstrong by having a portion of their taxes fund the
unreimbursed practice of full release time, and Williams by a reduction in the pension
fund because PSERS may be providing pension credit to persons not entitled by law
to receive credit.


              Having satisfied all five prongs of the narrow exception to standing
enunciated in Biester, Petitioners had standing at the time the Petition was filed.
However, we consider below the question of whether at this time, changed
circumstances that arose after the filing of the Petition and Application for Summary
Relief have rendered this case moot.


                             Current Posture of the Case



              PSERS grants retirement credit to employees, not of its own volition, but
only based on information provided by the employer, “absent good cause to question
the information reported.” (PSERS’ Prelim. Obj. at 4 n.1.) Here, the School District
“did not place the AEA President[s] on a ‘leave with collective bargaining
organization,’” as section 8102 of the Retirement Code required. (PSERS’ Br. in



                                          27
Opp’n to Pet’rs’ Appl. for Summ. Relief at 2.) Therefore, PSERS had no reason to
question the information reported by the School District about Tretter and Riddick.




             However, once PSERS became aware of the facts as a result of the filing
of Petitioners’ Petition and Application for Summary Relief, as well as the School
District’s Answer and New Matter, PSERS took action, by conducting its own
inquiry and making appropriate adjustments to the presidents’ retirement accounts.
Section 8534(b) of the Retirement Code, 24 Pa. C.S. §8534(b), requires PSERS to
correct all intentional or unintentional errors in members’ accounts. In other words,
PSERS has a statutory duty to correct errors made by public school employers and to
make actuarial adjustments to an individual member’s benefit payments. See Baillie
v. Public School Employees’ Retirement Board, 993 A.2d 944, 950 (Pa. Cmwlth.
2010). That is precisely what PSERS did in this case once it became aware of the
problem.




             PSERS agrees with Petitioners that the AEA presidents did not meet the
requirements for being on ‘leave with collective bargaining organization’ as set forth
in the Retirement Code. (PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at
6.) PSERS agrees that, here, “the AEA presidents on ‘full release time’ are not
‘school employees’ because they are not rendering ‘school service’ for a
‘governmental entity’ and are not placed on a ‘leave with collective bargaining
organization.’” (Id.) Thus, PSERS “legally agrees that the AEA President is not
entitled to receive retirement credit while on ‘full release time.’” (Id. at 3.)


                                            28
              More particularly, PSERS has determined that Tretter and Riddick “were
not entitled to receive retirement credit while on ‘full release time.’” 18 (PSERS’ Br.
in Opp’n to Appl. for Summ. Relief at 7-8.) “Accordingly, PSERS has removed all
credited service, salary and contributions reported while Ms. Tretter and Mr. Riddick
were on ‘full-release time’ and not on a ‘leave with collective bargaining
organization’ as provide[d] under [s]ections 8102 and 8302(b) of the Retirement
Code, 24 Pa. C.S. §§8102 and 8302(b).”                 PSERS notes that it “is awaiting
information from the (School District) identifying the prior AEA Presidents since
1992 pursuant to its statutory obligation under [s]ection 8506(b) of the Retirement
Code to ‘furnish service and compensation records as well as other information
requested by the board.’” (PSERS’ Br. in Opp’n to Appl. for Summ. Relief at 3 n.3.)




              PSERS’ position in granting retirement credit for union presidents on
full release time is consistent with the Retirement Code’s requirements for members
who are working “full time as an officer of a Statewide employee organization or a


       18
          By letter of April 29, 2016, PSERS notified AEA president Tretter of “its decision to
move $506,421.61 from her Retirement-Covered-Compensation to Non-Retirement-Covered-
Compensation” and “to remove six years of service credit” from Tretter’s retirement account.
(PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief, App. A at 5 ¶¶16, 18.) By letter of April
29, 2016, PSERS notified former AEA president Riddick of “its decision to move $518,804.12 from
[his] Retirement-Covered-Compensation to Non-Retirement-Covered-Compensation” and “to
remove eight years of service credit” from his retirement account. (Id., App. B ¶¶16, 18.) Both
Tretter and Riddick have filed appeals with PSERS. (Id., App. A and B; AEA’s Br. in Opp’n to
Pet’rs’ Appl. for Summ. Relief at 6.) “The regulations adopted by the PSERS Board provide for an
appeal to an Executive Staff Review Committee, followed by an appeal to the full Public School
Employees Retirement Board,” followed by an appeal to this court, pursuant to 42 Pa. C.S. §761(a).
(AEA’s Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 6.)



                                               29
local collective bargaining representative.” 24 Pa. C.S. §8102. Relying on Kirsch,
929 A.2d at 667, aff’d, 985 A.2d 671 (Pa. 2009), PSERS explains that a member may
receive retirement credit while working for a collective bargaining organization only
if:

                (1) at least half the members of the organization are
                members of PSERS; (2) the employer approves the
                leave; (3) the collective bargaining organization
                reimburses the employer for the member’s salary and
                benefits; (4) the member works full-time; and (5) the
                employer reports only the salary the member would have
                earned as a school employee.


(PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 6.)


             As a result of PSERS’ intervening actions, this case no longer presents
an actual controversy.     PSERS asserts that, because PSERS has removed the
retirement credit from the accounts of Tretter and Riddick and has asked the School
District to furnish records on AEA presidents going back to 1992, “no actual
controversy exists.” (PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 3 n.3
and 7.) PSERS points out that PSERS’ removal of the retirement credits moots
Petitioners’ claims that the provision of credit for full release time violates public
policy and is contrary to the Retirement Code. (PSERS’ Br. in Supp. of its Prelim.
Obj. at 9.) Therefore, PSERS argues that Petitioners fail to state a claim upon which
relief may be granted due to the lack of an actual controversy.




                                          30
             A legal question can become moot as a result of an intervening change in
the facts of the case. In re Gross, 382 A.2d 116, 119 (Pa. 1978). In that case, our
Supreme Court 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 facts or in
             the law - - which allegedly deprive the litigant of the
             necessary stake in the outcome. The mootness doctrine
             requires that “an actual controversy must be extant at all
             stages of review, not merely at the time the complaint is
             filed.”


Id. (quoting G. Gunther, Constitutional Law 1578 (9th ed. 1975)) (emphasis added).
See also Borough of Marcus Hook v. Pennsylvania Municipal Retirement Board, 720
A.2d 803, 804 (Pa. Cmwlth. 1998) (citation omitted) (“To avoid dismissal, an actual
case or controversy must usually exist at every stage of the judicial process”); Strax v.
Department of Transportation, Bureau of Driver Licensing, 588 A.2d 87, 89 (Pa.
Cmwlth. 1991), aff’d, 607 A.2d 1075 (Pa. 1992) (The general rule is that an actual
case or controversy must exist at all stages of review).


             The doctrine of ripeness “is a judicially-created principle which
mandates the presence of an actual controversy.” Bayada Nurses, Inc. v. Department
of Labor and Industry, 8 A.3d 866, 874 (Pa. 2010). In that case, our Supreme Court
explained the interplay of the ripeness doctrine and the Declaratory Judgments Act:


             While the right to relief under the Declaratory Judgments
             Act is broad, there are certain limitations upon a court’s
             ability to make a declaration of rights. Generally, our

                                           31
            judicial system requires a real or actual controversy before
            it will embrace a matter for review and disposition. . . .
            [W]hile we do not have a constitutional case or controversy
            requirement, as found in our federal system, “[s]everal
            discrete doctrines – including standing, ripeness, and
            mootness – have evolved to give body to the general
            notions of case or controversy and justiciability.”

Id. (citation omitted.) We have observed that “[g]enerally, courts are reluctant to
grant a declaratory judgment and injunctive remedies against administrative agencies,
unless the controversy is ripe for judicial resolution.”         Pennsylvania Dental
Hygienists’ Association, Inc. v. State Board of Dentistry, 672 A.2d 414, 416 (Pa.
Cmwlth. 1996). In Bayada Nurses, our Supreme Court observed that the rationale for
the ripeness doctrine “is to prevent premature adjudications:”

            In the context of administrative law, the basic rationale of
            ripeness is to prevent the courts, through the avoidance of
            premature adjudication, from entangling themselves in
            abstract disagreements over administrative policies, and to
            protect state agencies from judicial interference until an
            administrative decision has been formalized and its efforts
            felt in a concrete way by the challenging parties.


8 A.3d at 874.


            Petitioners disagree that PSERS’ intervening actions have made this case
unripe. They note that PSERS’ decisions regarding the AEA presidents’ entitlement
to retirement credit are not yet final because the affected members have a right to
appeal, a right to a formal evidentiary hearing, and a right to appeal to the
Commonwealth Court. (Pet’rs’ Reply Br. in Resp. to Resp’ts’ Prelim. Obj. at 26.)
However, we see no reason to interfere in the ongoing administrative processes

                                          32
before PSERS. It may be that Petitioners will deem the eventual results of PSERS’
actions, to recoup the improper expenditures from the current or past presidents,
sufficient. We will not engage in speculation or make an assumption that PSERS will
not perform its statutory duties.


             We are aware that courts have recognized exceptions to the mootness
doctrine where: “(1) the conduct complained of is capable of repetition yet likely to
evade judicial review; (2) the case involves issues of great public importance; or (3)
one party will suffer a detriment in the absence of a court determination.” Mistich v.
Pennsylvania Board of Probation and Parole, 863 A.2d 116, 119 (Pa. Cmwlth.
2004).


             Applying the exceptions to this case, we conclude that Petitioners’
claims do not fall within an exception to the mootness doctrine. First, as a result of
the matter being brought to the attention of PSERS and PSERS’ resulting actions, it is
unlikely that AEA presidents will continue to be granted pension credit without
compliance with section 8102 of the Retirement Code. Second, there has been no
indication that any other school districts have ignored section 8102’s requirement for
reimbursement. Third, Petitioners will not suffer a detriment in the absence of
adjudication by this court.         Indeed, PSERS’ actions with respect to the AEA
presidents are in line with what would have occurred had this court granted
Petitioners’ request for relief.


             Petitioners remind us that they are challenging the constitutionality of
section 8102 of the Retirement Code. (Pet’rs’ Reply Br. in Resp. to Resp’ts’ Prelim


                                            33
Obj. at 26.) Petitioners argue that this matter is not moot because their constitutional
challenge remains regardless of the outcome of PSERS’ administrative processes
with respect to the AEA presidents. (Id. at 25-26, 28.)


             We disagree. First, we are not required to decide the constitutional issue
raised by Petitioners. Courts are reluctant to decide moot questions, and even “more
reluctant to decide moot questions which raise constitutional issues.” In re Gross,
382 A.2d at 120. In that case, our Supreme Court relied on the case of Wortex Mills,
Inc. v. Textile Workers Union of America, C.I.O., 85 A.2d 851 (Pa. 1952), where the
Court was asked to decide, as a constitutional matter, whether peaceful,
organizational labor union picketing was legal. In Wortex Mills, the strike which had
caused the picketing had ended. In declining to reach the constitutional question, the
Wortex Mills Court instructed: “‘Constitutional questions are not to be dealt with
abstractly.’” In re Gross, 382 A.2d at 120 (citation omitted).



             Second, “when faced with an issue raising constitutional and non-
constitutional grounds, courts must make their decisions on non-constitutional
grounds if possible and avoid the constitutional question.” Dauphin County Social
Services for Children and Youth v. Department of Public Welfare, 855 A.2d 159, 165
(Pa. Cmwlth. 2004). “It is axiomatic that if an issue can be resolved on a non-
constitutional basis, that is the more jurisprudentially sound path to follow.” Wertz v.
Chapman Township, 741 A.2d 1272, 1274 (Pa. 1999).




                                          34
             Here, application of the statutory provision negates the need to engage in
a constitutional analysis. See, e.g., Blake v. State Civil Service Commission, 133
A.3d 812, 815-16 (Pa. Cmwlth. 2016). Section 8102 of the Retirement Code requires
full reimbursement to the School District by AEA of the president’s “salary, wages,
pension and retirement contributions and benefits and other benefits and seniority.”
Petitioners, PSERS, and the School District Solicitor all agree that full release time,
without reimbursement from the union, is contrary to the plain language of section
8102 of the Retirement Code. PSERS has stated, “A plain reading of the Retirement
Code clearly contemplates that a member who renders service for a collective
bargaining organization but does not comply with the provision of the ‘leave with a
collective bargaining organization [of section 8102] is not entitled to receive
retirement credit.’” (PSERS’ Br. in Opp’n to Pet’rs’ Appl. for Summ. Relief at 6.)
Because PSERS has stated that it will resolve the matter in a way that is consonant
with section 8102 of the Retirement Code, there is no need for us to reach the
constitutional issue raised by Petitioners.



             Finally and most importantly, there is no longer any actual controversy
regarding the constitutionality of section 8102 of the Retirement Code with respect to
the pension credits. Because PSERS has removed the retirement credit from the AEA
presidents’ accounts and because PSERS has determined that the presidents do not
meet the requirements of section 8102 for full release time, no actual controversy
continues to exist. Therefore, the question of the constitutionality of section 8102 is
not ripe for our review.




                                              35
             There is no question that an actual case or controversy existed when
Petitioners filed their Petition and Application for Summary Relief.          However,
intervening facts have significantly changed the character of this case and have made
the relief requested by Petitioners against PSERS unnecessary. Here, the intervening
facts demonstrate that PSERS (1) agrees with Petitioners’ factual allegations; (2) has
taken appropriate steps to stop the practice of allowing pension credit for full release
time absent compliance with section 8102 of the Retirement Code; and (3) has taken
appropriate steps going to back to 1992 to make adjustments to the retirement
accounts of AEA presidents.


             Accordingly, we conclude that, because of the intervening action on the
part of PSERS to remove all credited service, salary and contributions reported while
the current and former AEA presidents were on full release time and not on a leave
with collective bargaining organization as required by sections 8102 and 8302(b) of
the Retirement Code, no actual controversy continues to exist with respect to PSERS.
We agree with PSERS that, because this matter is currently winding through the
Board’s administrative processes, Petitioners’ Petition with respect to PSERS is
premature and not ripe for review. Thus, it fails to state a claim upon which relief
can be granted. Therefore, the preliminary objection of PSERS on the ground of
mootness is sustained and this case is dismissed as to PSERS.


             Remaining Claims Against AEA and the School District


             However, Petitioners’ claims against the School District and AEA
regarding the School District’s payment of the AEA presidents’ salary; wages;


                                          36
insurance; seniority; and other benefits, pursuant to Article 28 of the CBA, have not
been rendered moot by PSERS’ actions.


             AEA asserts that, once PSERS is no longer a party, this court lacks
jurisdiction over Petitioners’ remaining claims. (AEA’s Prelim Obj. at 13-14.) We
agree. As we explained at the outset of this opinion, the basis for our jurisdiction is
42 Pa. C.S. §761(a)(1), based on the fact that PSERS was a respondent. Without
PSERS, there is no longer a basis for exercising ancillary jurisdiction over
Petitioners’ claims against AEA and the School District. See, e.g., Pittsburgh Fire
Fighters, Local No. 1 ex rel. King v. Yablonsky, 867 A.2d 666, 673 (Pa. Cmwlth.
2005) (en banc); Bowers v. T-NETIX, 837 A.2d 608, 614 (Pa. Cmwlth. 2003).
Petitioners’ remaining claims against AEA and the School District are properly
within the jurisdiction of the Court of Common Pleas of Lehigh County.
Accordingly, we transfer this matter to the Court of Common Pleas of Lehigh County
for further proceedings consistent with this opinion.


             Jurisdiction relinquished.




                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge




Judge Simpson did not participate in the decision of this case.


                                            37
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Ramos, Scott Armstrong,              :
and James Williams,                         : No. 150 M.D. 2016
                                            :
                         Petitioners        :
                                            :
                   v.                       :
                                            :
Allentown Education Association;            :
Public School Employees                     :
Retirement System; and Allentown            :
School District,                            :
                                            :
                         Respondents        :


                                       ORDER


             AND NOW, this 21st day of December, 2016, the preliminary objection
of the Public School Employees’ Retirement System is sustained for mootness, and
the petition for review of Steven Ramos, Scott Armstrong, and James Williams is
dismissed against the Public School Employees’ Retirement System.


             The preliminary objection of Allentown Education Association is
sustained for lack of jurisdiction over the claims against remaining respondents
Allentown Education Association and Allentown School District. The claims against
Allentown    Education     Association      and   Allentown   School   District   are
TRANSFERRED to the Court of Common Pleas of Lehigh County for further
proceedings consistent with this opinion.
             The Chief Clerk of this court shall certify to the Prothonotary of the
Court of Common Pleas of Lehigh County a photocopy of the docket entries of this
case, and transmit to that court of common pleas the record, together with a copy of
this opinion and order.


             Jurisdiction relinquished.



                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge




                                           2
