        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Penn School District;            :
Panther Valley School District;          :
The School District of Lancaster;        :
Greater Johnstown School District;       :
Wilkes-Barre Area School District;       :
Shenandoah Valley School District;       :
Jamella and Bryant Miller, parents of    :
K.M., a minor; Sheila Armstrong,         :
Parent of S.A., minor; Tyesha            :
Strickland, parent of E.T., minor;       :
Angel Martinez, parent of A.M.,          :
minor; Barbara Nemeth, parent of         :
C.M., minor; Tracey Hughes, parent       :
of P.M.H., minor; Pennsylvania           :
Association of Rural and Small Schools; :
and The National Association for the     :
Advancement of Colored                   :
People–Pennsylvania State Conference, :
                            Petitioners  :
                                         :
              v.                         :   No. 587 M.D. 2014
                                         :   Argued: March 7, 2018
Pennsylvania Department of Education; :
Joseph B. Scarnati III, in his official  :
capacity as President Pro-Tempore of :
the Pennsylvania Senate; Michael C.      :
Turzai, in his official capacity as the  :
Speaker of the Pennsylvania House of :
Representatives; Tom W. Wolf,            :
in his official capacity as the Governor :
of the Commonwealth of Pennsylvania; :
Pennsylvania State Board of Education; :
and Pedro Rivera, in his official        :
capacity as the Acting Secretary of      :
Education,                               :
                            Respondents :
BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN H. CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                  FILED: May 7, 2018

               Before this Court, on remand from our Supreme Court, are preliminary
objections to a petition for review filed in this Court’s original jurisdiction. As
explained below, we overrule the preliminary objections.1


               Also before us is an application for dismissal filed by Respondent
Joseph B. Scarnati III, President Pro-Tempore of the Pennsylvania Senate,
contending the claims in the petition for review are moot. As explained in more
detail below, we defer ruling on the application for dismissal, pending further
development of the pleadings or the record.




       1
          However, as discussed below, we acknowledge that the immunity objection asserted by
the Pennsylvania Department of Education, Pennsylvania Governor Tom Wolf, Pennsylvania
Secretary of Education Pedro A. Rivera, and the Pennsylvania State Board of Education
(collectively, Executive Branch Respondents) has been preserved for advancement as an
affirmative defense by those Respondents.
        Also, as explained below, we anticipate that issues regarding the nature of the constitutional
rights involved and the corresponding level of judicial scrutiny to be applied will be further
developed and submitted to the Court for decision on an application for partial summary relief.
                                      I. Background
              The previous opinions in this case2 set forth the facts in greater detail.
We recount here only those necessary to this opinion.


              This action is a petition for review in our original jurisdiction, filed by
several Pennsylvania public school districts, the parents of several Pennsylvania
public school students, the Pennsylvania Association of Rural and Small Schools,
and the National Association for the Advancement of Colored People–Pennsylvania
State Conference (collectively, Petitioners).


              Respondents are Pennsylvania Governor Tom Wolf, the Pennsylvania
Department of Education, Pennsylvania Secretary of Education Pedro A. Rivera, and
the Pennsylvania State Board of Education (collectively, Executive Branch
Respondents), as well as President Pro-Tempore of the Pennsylvania Senate, Joseph
B. Scarnati III, and Speaker of the Pennsylvania House of Representatives, Michael
C. Turzai (collectively, Legislative Branch Respondents).


              Petitioners filed their petition for review in 2014, challenging the
constitutionality of the educational funding legislation then in place, popularly
known as Act 61.3 Specifically, Petitioners contended Act 61 failed to fulfill the
General Assembly’s mandate to “provide for the maintenance and support of a
thorough and efficient system of public education” as set forth in Article III, §14 of

       2
        See William Penn Sch. Dist. v. Pa. Dep’t of Educ., 114 A.3d 456 (Pa. Cmwlth. 2015)
(William Penn I), rev’d and remanded, 170 A.3d 414 (Pa. 2017) (William Penn II).

       3
         Act of July 9, 2008, P.L. 846, No. 61, amending Act of Mar. 10, 1949, P.L. 30, No. 14,
24 P.S. §§1-101–25-2599.2.


                                              2
the Pennsylvania Constitution (Education Clause). Petitioners further contended
Act 61 resulted in gross disparities in education funding and resources among public
school districts in Pennsylvania, and thus violated Article III, §32 of the
Pennsylvania Constitution (Equal Protection Clause).


             Both Executive Branch Respondents and Legislative Branch
Respondents filed various preliminary objections. This Court, in a unanimous en
banc opinion, sustained a demurrer on the basis that the petition for review presented
political questions that were non-justiciable. William Penn Sch. Dist. v. Pa. Dep’t
of Educ., 114 A.3d 456 (Pa. Cmwlth. 2015) (William Penn I), rev’d and remanded,
170 A.3d 414 (Pa. 2017) (William Penn II). Based on that conclusion, this Court
did not reach Respondents’ other preliminary objections. Id.


             On appeal, the Pennsylvania Supreme Court reversed. The Supreme
Court found the case to be justiciable, and remanded to this Court for consideration
of the remaining preliminary objections. William Penn II.


                                      II. Issues
             On remand, we address Respondents’ preliminary objections not
reached in William Penn I.


             Executive Branch Respondents filed preliminary objections in the
nature of a demurrer, contending Petitioners fail to state a claim for which relief may
be granted because the statutory scheme establishing and providing for the system
of public education is rationally related to legitimate governmental objectives.



                                          3
Executive Branch Respondents also argue Petitioners’ claims are barred by
sovereign immunity to the extent that the petition for review seeking to impose a
mandatory injunction.       Further, Executive Branch Respondents assert that
Petitioners’ claims are barred by the separation of powers doctrine to the extent that
the petition for review seeks to compel action by the General Assembly and subject
it to ongoing supervision by this Court.


             Legislative Branch Respondents filed preliminary objections in the
nature of a demurrer, contending Petitioners fail to state a claim upon which relief
may be granted under the Education Clause, because the funding system in Act 61
serves the rational basis of preserving local control over public education. Similarly,
Legislative Branch Respondents also argued Petitioners fail to state a claim upon
which relief may be granted under the Equal Protection Clause, because education
is not a fundamental right subject to strict scrutiny, and because Act 61’s funding
system serves the rational basis of preserving local control over public education.


             Following our Supreme Court’s remand, this Court accepted
supplemental briefs from the parties concerning the preliminary objections.


             Executive Branch Respondents, except the Board of Education
(Remaining Executive Branch Respondents), withdrew all of their preliminary
objections, concluding the objections were largely foreclosed by our Supreme
Court’s opinion in William Penn II.        However, Remaining Executive Branch
Respondents reserved the right to reassert their immunity defense in their answer to
the petition for review.



                                           4
                   The Board of Education filed a separate supplemental brief. The Board
of Education reasserted and incorporated by reference the argument in Executive
Branch Respondents’ original brief that Petitioners’ claims are barred by the doctrine
of separation of powers. With regard to immunity, the Board of Education’s
supplemental brief incorporated by reference Executive Branch Respondents’
immunity argument from their original brief.4


                   Senator Scarnati and Speaker Turzai also filed separate supplemental
briefs.        Senator Scarnati argued Petitioners failed to satisfy the fact-pleading
requirements of the Pennsylvania Rules of Civil Procedure. Notably, he challenged
the adequacy of Petitioners’ pleading of causation, which was not among Legislative
Branch Respondents’ original preliminary objections. He also filed an application
to dismiss the petition for review, contending Petitioners’ claims became moot upon
the General Assembly’s repeal and replacement of Act 61 with a new statutory
funding scheme, popularly known as Act 35,5 while this action was pending. He
addressed that application in his supplemental brief as well.


                   Speaker Turzai focused on the nature of the right to public education,
and the related issue of the appropriate level of scrutiny to be applied in
constitutional challenges asserting that right under the Education and Equal
Protection Clauses of the Pennsylvania Constitution.

          4
          The Board of Education did not expressly incorporate any other portion of Executive
Branch Respondents’ original brief. However, this Court’s order authorizing additional briefs
specifically provided that in such briefs, the parties might “supplement the arguments made in
their prior briefs regarding the preliminary objections that they previously filed.” Cmwlth. Ct.
Order, 1/4/18. Thus, express preservation of arguments from the original briefs was not necessary.

          5
              Act of June 1, 2016, P.L. 252, No. 35, §1, 24 P.S. §25-2502.53.


                                                    5
             Petitioners filed a single supplemental brief in opposition to all of the
preliminary objections, and to Senator Scarnati’s application for dismissal.


                                   III. Discussion
                                    A. Mootness
             In 2016, Act 35 changed the statutory scheme for funding
Pennsylvania’s public education system. Senator Scarnati contends that the changes
are significant and that Petitioners’ constitutional challenges to Act 61 are moot in
light of this intervening change in the law.


             In opposition, Petitioners contest the significance of the funding
changes wrought by Act 35. In addition to the factual contest, Petitioners largely
rely on our Supreme Court’s discussion of mootness in William Penn II. That
discussion, while not essential to its decision in William Penn II, offers some
indication of our Supreme Court’s views on this issue. Observing that the nature of
the state’s education funding formula can change any time the legislature chooses,
our Supreme Court stated: “Changes in the formula do not render the questions
presented moot ….” Id. at 435. Further, the Supreme Court noted that even if the
passage of Act 35 mooted Petitioners’ claims, “Petitioners would have a compelling
argument ... to proceed to decision on the basis that the issues as stated are of
importance to the public interest and ‘capable of repetition yet evading review.’” Id.
at 435 n.34 (citation omitted). Our Supreme Court explained: “At the inception of
any action such as the one presented – the public importance of which cannot be
disputed – there inheres the risk that the General Assembly will move the goalposts
by enacting new legislation ….” Id.



                                          6
               Unfortunately, neither the petition for review nor the record affords this
Court a basis to determine the possible impact of Act 35 on the causes of action
currently pled by Petitioners.6 In addition, we are mindful of our Supreme Court’s
comments on mootness in William Penn II. Accordingly, at this juncture we cannot
say as a matter of law that the abrogation of the statutory funding scheme challenged
by Petitioners renders their challenges moot. We will therefore defer action on the
application for dismissal pending further supplementation of the pleadings or the
record by the parties in accordance with the attached order.


                           B. Demurrer/Petitioners’ Pleading
               In his supplemental brief, Senator Scarnati also challenges the
sufficiency of Petitioners’ pleading. Specifically, he contends the petition for review
fails to set forth sufficient facts to provide the necessary causal links between the
alleged infirmities of the educational funding scheme and the resulting harm averred
by Petitioners. We discern no merit in this argument.


               Because Pennsylvania is a fact-pleading state, a civil complaint must
aver sufficient facts to apprise the defendant of the nature and extent of the plaintiff’s
claim, so that the defendant can prepare to meet the plaintiff’s evidence at trial.
Clark v. Se. Pa. Transp. Auth., 691 A.2d 988 (Pa. Cmwlth. 1997). However, that
does not mean the plaintiff must plead the facts in such detail as to eliminate the
need for discovery.        Rather, Pennsylvania’s fact-pleading rules arise from the

       6
         At oral argument, counsel for Petitioners contended that Paragraph 150 of the petition for
review referenced persistent problems in the current public school funding system so as to dispel
any factual doubts about mootness. Our review of the averments in the petition for review,
however, convinces us that the “current school financing arrangement” is not described in
sufficient detail to allow us to resolve the issue at this point.


                                                7
premise that discovery can be narrowed if the pleadings initially define the contours
of the dispute. McNeil v. Jordan 814 A.2d 234 (Pa. Super. 2002), rev’d on other
grounds, 894 A.2d 1260 (Pa. 2006). Senator Scarnati’s demurrer seeks a level of
detail far exceeding what is required for an initial pleading defining the contours of
the dispute.


               A fair reading of the petition for review reveals that it avers sufficient
facts to allow Respondents to understand the nature of Petitioners’ claims. The
petition for review is extensive and detailed. It sets forth Petitioners’ challenges to
the constitutionality of “the current school financing arrangement,” at least as it
existed in 2014, with specificity and clarity. Indeed, the opinion of our Supreme
Court in William Penn II demonstrates the sufficiency of Petitioners’ pleading. The
Supreme Court was clearly able to discern from the petition for review the nature
and extent of Petitioners’ claims, notably including the alleged causal link between
the alleged constitutional defects to the “current funding scheme” and the harm
averred by Petitioners.


               Moreover, Pa. R.C.P. No. 1028(b) expressly requires that all
preliminary objections must be asserted at one time. Petitioners correctly point out
that Senator Scarnati’s demurrer relating to fact-pleading requirements was not
among the Legislative Branch Respondents’ preliminary objections. Rather, it
appeared for the first time in Senator Scarnati’s supplemental brief. Having failed
to assert a demurrer relating to fact-pleading in the original preliminary objections,
Senator Scarnati waived that objection to the sufficiency of the petition for review.
Pa. R.C.P. No. 1032(a).



                                            8
             Further, this Court’s order authorizing supplemental briefing only
allowed the parties to “supplement the arguments made in their prior briefs regarding
the preliminary objections that they previously filed.” Cmwlth. Ct. Order, 1/4/18
(emphasis added). Our order did not authorize the addition of preliminary objections
not previously asserted.


             Accordingly, we overrule the objection concerning Petitioners’
pleading of causation.


                             C. Sovereign Immunity
             In their preliminary objections, supported in their original brief,
Executive Branch Respondents asserted immunity to the claims in the petition for
review. Executive Branch Respondents acknowledged that suits seeking restrictive
injunctions against state officials are not barred by immunity, but contended those
seeking mandatory injunctions are barred. Fawber v. Cohen, 532 A.2d 429 (Pa.
1987). Executive Branch Respondents suggested the petition for review seeks to
compel affirmative acts by Respondents, and is therefore subject to the bar of
immunity.


             In response, Petitioners argued immunity does not bar a declaratory
judgment action asserting unconstitutionality of a statute.     Wilkinsburg Police
Officers Ass’n v. Commonwealth, 636 A.2d 134 (Pa. 1993). Further, Petitioners
argued immunity does not bar an action seeking to compel state officials to comply
with constitutional rather than statutory mandates. Twps. of Springdale & Wilkins
v. Kane, 312 A.2d 611 (Pa. Cmwlth. 1973).



                                         9
             In their supplemental brief on remand, Remaining Executive Branch
Respondents abandoned their preliminary objection asserting immunity. They
conceded that “Petitioners’ demands are more expansive,” and the defense of
immunity would not fully dispose of Petitioners’ claims. Supp. Br. on Executive
Branch Respondents’ Prelim. Objs. to Pet. for Review, at 10-11 n.4. The Board of
Education did not develop the immunity argument further and did not separately
address the arguments and authorities offered by Petitioners on the immunity issue.


             The reasoning of Remaining Executive Branch Respondents is
persuasive. Accordingly, and in light of the limited development of the Board of
Education’s argument, we overrule the Executive Branch Respondents’ preliminary
objection of sovereign immunity. We acknowledge that the immunity defense has
been preserved for reassertion in the appropriate pleadings by Executive Branch
Respondents, including the Board of Education.


                        D. Separation of Powers Doctrine
             Executive Branch Respondents asserted a further preliminary objection
to the petition for review, contending Petitioners’ claims were barred by the doctrine
of separation of powers among the three branches of state government. On remand,
the Board of Education reasserts this objection. However, our Supreme Court’s
analysis in William Penn II foreclosed this argument.


             The principle of separation of powers among the branches of
government was intertwined with the discussion of justiciability in William Penn II.
Our Supreme Court observed that generally, “‘the exercise of the judiciary’s power



                                         10
to review the constitutionality of legislative action does not offend the principle of
separation of powers ….’” Id. at 438 (quoting Hosp. & Health System Ass’n of Pa.
v. Commonwealth, 77 A.3d 587, 596 (Pa. 2013); Sweeney v. Tucker, 375 A.2d 698,
705 (Pa. 1977)). As the Court explained, “‘[T]he need for courts to fulfill their role
of enforcing constitutional limitations is particularly acute where the interests or
entitlements of individual citizens are at stake.’” Id. (quoting Hosp. & Health
System Ass’n, 77 A.3d at 597; citing Sweeney, 375 A.2d at 709).


             We are persuaded by our Supreme Court’s reasoning and conclude that
the doctrine of separation of powers does not bar Petitioners’ claims. Accordingly,
we overrule the preliminary objection relating to the separation of powers doctrine.


                      E. Nature of Rights/Level of Scrutiny
             Analysis of a constitutional challenge to a statute begins with a
determination of the proper level of scrutiny to be applied in examining the statute:

             The determination of the appropriate level of scrutiny
             (effectively, the standard of judicial review) depends upon the
             type of interest affected by the classification. Generally
             speaking, there are three different types of classifications
             calling for three different standards of review: (1)
             classifications which implicate a suspect class or a fundamental
             right are strictly construed in light of a compelling
             governmental purpose; (2) classifications which implicate an
             important though not a fundamental right or a sensitive
             classification are assessed under a heightened standard of
             scrutiny which seeks an important governmental purpose; and
             (3) classifications which involve none of these classes or rights
             are upheld if there is any rational basis for the classification.




                                         11
Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 533 (Pa.
2005) (citations omitted).


              Speaker Turzai presumes a constitutional challenge based on the right
to an adequate public education is subject either to strict scrutiny review or rational
basis review. He contends the proper level of scrutiny is rational basis review.


              However, in their supplemental brief, Petitioners urge that even if not
subject to strict scrutiny, the right at issue is at least sufficiently important to trigger
heightened, or intermediate-level, review. No other party provides any analysis of
intermediate-level review or its potential applicability in this case; nor did our
Supreme Court do so in William Penn II.


              Petitioners urge us not to decide the level of scrutiny at this stage of the
case. They argue for a fully developed historical record at trial before such a ruling.
However, it is not clear what issues would arise regarding the appropriate level of
constitutional scrutiny that would justify awaiting trial before determining the
applicable level of scrutiny.


              Speaker Turzai, the only Respondent to address the level of scrutiny in
any detail, asks this Court to decide it at the preliminary objection stage. However,
we decline to address the issue in a dispositive manner at this stage in light of the
limited analysis provided so far by the other parties. Accordingly, we overrule,
without prejudice, preliminary objections addressing the applicable level of scrutiny,




                                            12
pending further development of the record and legal analysis by the parties in
accordance with the attached order.


                                  IV. Conclusion
            Based on the foregoing discussion, this Court defers ruling on the
application for dismissal for mootness, pending further development by the parties
as set forth in the accompanying order. Similarly, we overrule, without prejudice,
preliminary objections addressing the applicable level of scrutiny. After allowing
for the development of the record on this issue, any party may invite the Court’s
ruling. All other preliminary objections are overruled.




                                      ROBERT SIMPSON, Judge


President Judge Leavitt and Judges Brobson, Covey, and Fizzano Cannon did not
participate in the decision in this case.




                                        13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Penn School District;            :
Panther Valley School District;          :
The School District of Lancaster;        :
Greater Johnstown School District;       :
Wilkes-Barre Area School District;       :
Shenandoah Valley School District;       :
Jamella and Bryant Miller, parents of    :
K.M., a minor; Sheila Armstrong,         :
Parent of S.A., minor; Tyesha            :
Strickland, parent of E.T., minor;       :
Angel Martinez, parent of A.M.,          :
minor; Barbara Nemeth, parent of         :
C.M., minor; Tracey Hughes, parent       :
Of P.M.H., minor; Pennsylvania           :
Association of Rural and Small Schools; :
and The National Association for the     :
Advancement of Colored                   :
People–Pennsylvania State Conference, :
                            Petitioners  :
                                         :
              v.                         :   No. 587 M.D. 2014
                                         :
Pennsylvania Department of Education; :
Joseph B. Scarnati III, in his official  :
capacity as President Pro-Tempore of :
the Pennsylvania Senate; Michael C.      :
Turzai, in his official capacity as the  :
Speaker of the Pennsylvania House of :
Representatives; Tom W. Wolf,            :
in his official capacity as the Governor :
of the Commonwealth of Pennsylvania; :
Pennsylvania State Board of Education; :
and Pedro Rivera, in his official        :
capacity as the Acting Secretary of      :
Education,                               :
                            Respondents :
                                     ORDER

             AND NOW, this 7th day of May, 2018, upon consideration of
Respondents’ preliminary objections and Petitioners’ responses thereto, as well as
the parties’ original and supplemental briefs, it is hereby ORDERED as follows:


             1.     This Court will defer ruling on the application for dismissal for
mootness, pending further development of the issue by the parties. Petitioners may
file any amended pleading, shall submit factual support under oath or penalty of law
for their argument against mootness, and may file further written argument, within
60 days of the date of this Order. Respondents may file any responsive materials
within 90 days of the date of this Order. Thereafter, any party may file a written
application for decision of this issue by the Court.


             2.     This Court OVERRULES, without prejudice, preliminary
objections concerning the nature of the constitutional rights at issue and the
corresponding level of judicial scrutiny to be applied, because the issues have not
been sufficiently developed by the parties.       The parties may conduct limited
discovery, confined to these issues. The parties shall complete any such discovery
within 120 days of the date of this Order. Any party may then file a motion for
partial summary relief, also confined to these issues, within 30 days of the end of the
discovery period. Thereafter, this Court will order a mandatory briefing schedule
and schedule argument.
3.   All other preliminary objections are OVERRULED.




                      ROBERT SIMPSON, Judge
