         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Mifflin Area School District;     :
and Phil Shar, Resident and            :
Taxpayer of the West Mifflin           :
Area School District,                  :
                   Petitioners         :
                                       :
            v.                         : No. 314 M.D. 2016
                                       : Argued: November 14, 2016
Pedro A. Rivera, Secretary of          :
Education of the Commonwealth          :
of Pennsylvania; the Pennsylvania      :
Department of Education;               :
Duquesne City School District;         :
and Paul B. Long, Receiver for         :
Duquesne City School District,         :
                   Respondents         :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                            FILED: January 17, 2017

            West Mifflin Area School District and Phil Shar, a taxpayer,
(collectively, West Mifflin) have filed a petition for review in the nature of a
mandamus and declaratory judgment action (Petition) that challenges the amount
of tuition West Mifflin is paid for educating students from the Duquesne City
School District. In its effort to secure more funding, West Mifflin has filed the
instant Petition against the Pennsylvania Department of Education; Pedro Rivera,
the Secretary of Education; the Duquesne City School District; and the Duquesne
City School District’s receiver, Dr. Paul B. Long. The respondents have filed
various preliminary objections seeking a dismissal of the petition for failing to
state a claim upon which relief may be granted.

                                   Background
              On July 14, 2000, the Secretary of Education placed the Duquesne
City School District (Duquesne) on the Education Empowerment List. Petition for
Review, ¶11. In October of 2000, the Secretary declared Duquesne a financially
distressed school district and placed it under the management of a Special Board of
Control. Id. at ¶¶12-13. On or about June 5, 2007, the Board of Control closed
Duquesne High School, which consisted of grades 9 through 12. Id. at ¶15. In
July 2007, the Secretary of Education designated West Mifflin as one of two
school districts that must accept high school students from Duquesne High School
on a tuition basis. Id. at ¶18.
              West Mifflin commenced litigation to challenge the constitutionality
of Act 45,1 the statute that authorized the transfer of Duquesne students to West
Mifflin. On September 29, 2010, the Pennsylvania Supreme Court held that Act
45 was unconstitutional as “special legislation” because it created a class of one
member, Duquesne. West Mifflin Area School District v. Zahorchak, 4 A.3d 1042,
1049 (Pa. 2010).
              Thereafter, the General Assembly enacted Act 1232 to amend Section
1607(b) of the Public School Code, 24 P.S. §16-1607(b).                 This amendment


1
  Act of July 20, 2007, P.L. 278, No. 45. Act 45 added Sections 1607.1 and 1113(b.2) to the
Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§16-1607.1,
11-1113(b.2).
2
  Act of November 23, 2010, P.L. 1350, No. 123.


                                             2
authorized the Secretary of Education to designate two or more adjacent school
districts to accept, on a tuition basis, high school students from third class school
districts that are declared distressed. The amendment also authorized the Secretary
of Education to establish a per-pupil tuition rate to compensate a school district
assigned students from an adjacent district. The Secretary of Education again
designated West Mifflin as one of the two school districts to accept Duquesne high
school students.
             In the summer of 2011, pursuant to Act 123, Duquesne high school
students began choosing a high school in one of the school districts adjacent to
Duquesne.    At approximately the same time, Duquesne sought and received
approval from the Department of Education to end its junior high school program
for grades 7 and 8; West Mifflin then received 7th and 8th grade students from
Duquesne. Petition for Review, ¶31. In November 2012, the Secretary appointed
Dr. Paul B. Long receiver for Duquesne.
             West Mifflin contends that, since the 2007-2008 school year, it has
been educating Duquesne students without adequate funding. Petition for Review,
¶¶44, 58, 124, 133. The tuition paid to West Mifflin bears no relationship to
tuition calculations made in other circumstances. For example, the per pupil
tuition rate does not differentiate between a regular education student and a student
receiving special education services (exceptional students). Id. at ¶64. Some of
Duquesne’s exceptional students have disabilities that require placement in a
special school, and these costs have been borne by West Mifflin. Id. at ¶68. Other
Duquesne exceptional students require therapeutic support services and one-on-one
aides, resulting in additional costs to West Mifflin that, again, are not covered by
                                          3
Duquesne’s tuition payments.              Id. at ¶71.      By contrast, Duquesne pays a
significantly higher tuition rate to a charter school chosen by a Duquesne
exceptional student. Id. at ¶78. Likewise, West Mifflin has paid more than
$640,000 in tuition for Duquesne students who attend career and technical
programs at the Steel Center for Career and Technical Education (Steel Center).
Id. at ¶92.       West Mifflin has incurred more than $120,000 in unreimbursed
transportation expenses associated with its transportation of reassigned Duquesne
students. Id. at ¶104.
                 On May 23, 2016, West Mifflin filed the instant six-count Petition.
Count I seeks a writ of mandamus to compel Respondents to recalculate the
amount of tuition owed by Duquesne to West Mifflin. Count II seeks a declaratory
judgment that Section 1607(b) of the Public School Code violates Article III,
Section 32 of the Pennsylvania Constitution3 because the tuition rate is arbitrary


3
    It states:
           The General Assembly shall pass no local or special law in any case which has
           been or can be provided for by general law and specifically the General Assembly
           shall not pass any local or special law:
                   1.    Regulating the affairs of counties, cities, townships, wards,
                   boroughs or school districts:
                   2.    Vacating roads, town plats, streets or alleys:
                   3.    Locating or changing county seats, erecting new counties or
                   changing county lines:
                   4.    Erecting new townships or boroughs, changing township
                   lines, borough limits or school districts:
                   5.    Remitting fines, penalties and forfeitures, or refunding
                   moneys legally paid into the treasury:
                   6.    Exempting property from taxation:
                   7.    Regulating labor, trade, mining or manufacturing:
                   8.    Creating corporations, or amending, renewing or extending
                   the charters thereof:
(Footnote continued on the next page . . . )
                                                 4
and bears no rational relationship to any legitimate government purpose. Count III
seeks a writ of mandamus to compel Respondents to transfer federal special
education funding from Duquesne to West Mifflin. Count IV seeks damages from
Duquesne and Dr. Long for not paying for the vocational education of Duquesne
students. Count V seeks damages because Duquesne and Dr. Long have been
unjustly enriched by not paying what is owed to West Mifflin. Count VI seeks a
writ of mandamus to compel the Secretary to establish an Education Advisory
Committee and begin the reporting required by statute.
              Respondents filed preliminary objections seeking to dismiss the
Petition.   On preliminary objections, our review 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),
affirmed, 924 A.2d 1203 (Pa. 2007). When reviewing preliminary objections,

              [this Court is] required to accept as true the well-pled averments
              set forth in the ... complaint, and all inferences reasonably
              deducible therefrom. Moreover, the [C]ourt need not accept as
              true conclusions of law, unwarranted inferences from facts,
              argumentative allegations, or expressions of opinion. 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.


(continued . . . )
      Nor shall the General Assembly indirectly enact any special or local law by the
      partial repeal of a general law; but laws repealing local or special acts may be
      passed.
PA. CONST. art. III, §32.


                                             5
Id. at 415-16 (citations omitted).
                              Count I: Mandamus
                             (Against all Respondents)

             A writ of mandamus is used to compel the performance of a
ministerial and mandatory duty. “The burden of proof falls upon the party seeking
this extraordinary remedy to establish his legal right to such relief.” Werner v.
Zazyczny, 681 A.2d 1331, 1335 (Pa. 1996). A party “must demonstrate: a clear
legal right for performance of an act by the government; a corresponding duty in
the government to perform the ministerial act and mandatory duty; and the absence
of any other appropriate or adequate remedy.” Chester Community Charter School
v. Department of Education, 996 A.2d 68, 75 (Pa. Cmwlth. 2010). “A mandatory
duty is ‘one which a public officer is required to perform upon a given state of
facts and in a prescribed manner in obedience to the mandate of legal authority.’”
Id. (citing Filippi v. Kwitowski, 880 A.2d 711, 713 (Pa. Cmwlth. 2005)).

             a.    Duquesne’s preliminary objection
             Duquesne contends that Count I does not state a claim because it does
not have a duty to calculate the tuition rate paid to West Mifflin; this duty belongs
to the Secretary of Education. Indeed, Count I recites that the Secretary sets the
per pupil tuition rate and that “Duquesne paid the tuition rates in the 2012-2013
through 2015-2016 school years in the manner directed by the Secretary.” Petition
for Review, ¶50.
             West Mifflin responds that Section 1607(b)(4) of the Public School
Code, 24 P.S. §16-1607(b)(4), establishes a formula for calculating tuition, and the
tuition paid by Duquesne deviates from that formula. This deviation entitles West
                                         6
Mifflin to damages under 42 Pa. C.S. §8303.4 Duquesne had the duty to pay a
tuition that conformed to the formula set in Section 1607(b)(4).
              Section 1607 of the Public School Code compels a school district with
a curtailed high school program to pay the amount determined by the formula in
Section 1607(b)(3)-(4). It states, in relevant part, as follows:

              (b) If a third class school district operating under a special
              board of control pursuant to [24 P.S. §6-692 (repealed)] has,
              with the approval of the Secretary of Education, curtailed its
              educational program by eliminating its high school and has not
              assigned its high school pupils to another school district and
              provided adequate transportation in a manner under subsection
              (a), the secretary shall have the following authority:
                                              ***

                      (3) To establish the per-pupil tuition rate that a
                      school district designated under paragraph (1) shall
                      receive for each reassigned student in a regular or
                      special education program. For the 2010-2011 and
                      2011-2012 school years, the tuition rate
                      established under this paragraph may not exceed
                      the product of:

                             (i) the tuition rate established
                             for the 2007-2008 school year;
                             and

                             (ii) the greater of:
                                     (A) two percent (2%); or


4
 Section 8303 provides:
       A person who is adjudged in an action in the nature of mandamus to have failed
       or refused without lawful justification to perform a duty required by law shall be
       liable in damages to the person aggrieved by such failure or refusal.
42 Pa. C.S. §8303.


                                               7
                                   (B) the         percentage
                                   increase in total budgeted
                                   revenues available to a
                                   distressed school district.

                    (4) For the 2012-2013 school year and each
                    school year thereafter, the per pupil tuition rate
                    that a school district designated under paragraph
                    (1) shall receive for each reassigned student in a
                    regular or special education program shall be the
                    greater of ten thousand dollars ($10,000) or the
                    product of:

                           (i) the tuition rate established for the
                           prior school year; and
                           (ii) the greater of:
                                   (A) the         percentage
                                   increase in total budgeted
                                   revenues available to a
                                   distressed school district;
                                   or

                                   (B) the       index    set
                                   pursuant to the act of
                                   June 27, 2006 (1st
                                   Sp.Sess., P. L. 1873, No.
                                   1), [53 P.S. §§6926.101 –
                                   6926.5006,] known as
                                   the “Taxpayer Relief
                                   Act,” for the distressed
                                   school district.

24 P.S. §16-1607(b)(3)-(4) (emphasis added). In short, Section 1607(b)(4) gives
the Secretary, not the school district, the authority to calculate the per pupil tuition
rate. It does not impose any duty upon a school district, beyond payment of the
established per-student tuition.

                                            8
             Count I does not allege that Duquesne has not paid the tuition set by
the Secretary. Accordingly, Count I does not state a claim as to Duquesne under
Section 1607(b)(4) of the Public School Code.
             Count I also seeks to compel Duquesne to reimburse West Mifflin for
the tuition it paid for Duquesne students attending a vocational school. West
Mifflin contends that Duquesne has a mandatory duty to pay this tuition because
Duquesne does not maintain or participate in an approved vocational program.
Duquesne responds that West Mifflin has failed to state a claim because Duquesne
participates in a vocational program at Steel Center.
             The Public School Code requires a school district to pay for its
students’ vocational training. If it refuses, it can be held liable for breach of
contract to the school attended by one of its students. Section 1809(c) of the
Public School Code states as follows:

             (c) The school district in which the person resides, who has
             been admitted, as above provided, to an approved vocational
             industrial, vocational agricultural, vocational homemaking,
             vocational high or vocational distributive occupational school
             or department maintained by another school district, shall pay
             the high school charge provided for by this act. If any school
             district neglects or refuses to pay for such tuition, it shall be
             liable therefor, in an action of contract, to the school district or
             school districts maintaining the school which the pupil, with the
             approval of the board, attended.

24 P.S. §18-1809(c) (emphasis added). In addition, where a student resides in a
“nonparticipating district,”

             [t]he school district in which the pupil resides shall be charged,
             for each pupil attending the area vocational-technical school or

                                          9
             technical institute, an amount equal to the total approved
             budget for current expenses, debt service and capital outlay
             divided by the number of pupils enrolled in the school.

Section 1847 of the Public School Code; 24 P.S. §18-1847 (emphasis added).
             In ruling on Duquesne’s preliminary objections, we must accept the
facts in the pleading as true. Count I alleges that Duquesne does not maintain or
participate in an approved vocational program, which Duquesne disputes.             A
factual dispute precludes the grant of a demurrer. However, mandamus does not
lie because Section 1809(c) of the Public School Code contains a statutory remedy,
i.e., breach of contract.
             West Mifflin’s real claim lies with the amount of tuition it receives for
Duquesne students. This is a matter that must be addressed to the Secretary and,
thus, Count I must be dismissed as to Duquesne.
             b.    Preliminary Objections of the Department of Education, the
                   Secretary, and Dr. Long
             The Department, the Secretary, and Dr. Long (collectively,
Commonwealth Respondents) contend that Count I fails to state a claim because it:
(1) does not, and cannot, allege that the Secretary has failed to calculate an annual
tuition rate pursuant to Section 1607(b)(4) of the Public School Code, 24 P.S. §16-
1607(b)(4), and (2) fails to identify a duty in the Commonwealth Respondents to
pay tuition associated with the vocational education costs of Duquesne’s students.
In addition, the Commonwealth Respondents contend that Count I does not satisfy
the six-month statute of limitations for a mandamus action. Further, mandamus
does not lie where, as here, West Mifflin seeks to appeal the Department’s
determination of the tuition rates to be paid to West Mifflin by Duquesne.

                                         10
             As noted, Section 1607(b)(4) of the Public School Code requires the
Secretary to calculate the per pupil tuition rate for students residing in a third class
school district operating under a board of control where the high school has been
eliminated. 24 P.S. §16-1607(b)(4). Section 1607(b)(4) establishes the formula
for the per pupil tuition rate, which is $10,000 unless a higher number is reached
by taking the product of:

             (i) the tuition rate established for the prior school year; and

             (ii) the greater of:

                    (A) the percentage increase in total budgeted
                    revenues available to a distressed school district;
                    or

                    (B) the index set pursuant to the act of June 27,
                    2006 (1st Sp.Sess., P. L. 1873, No. 1), known as
                    the “Taxpayer Relief Act,” [53 P.S. §§6926.101 –
                    6926.5006,] for the distressed school district.

Id.
             Count I alleges that the Secretary did not follow the statutory formula
by using the greater of either Duquesne’s total budgeted revenue percentage
increase or the Taxpayer Relief Act Index when calculating Duquesne’s tuition
rates.   24 P.S. §16-1607(b)(4).      The Secretary’s failure to comply with its
mandatory, ministerial duty set by Section 1607(b)(4) subjects him to a writ of
mandamus. The Commonwealth Respondents claim that the formula requires the
exercise of discretion, which precludes a writ of mandamus. We agree with West
Mifflin that the formula for setting the tuition rate is strictly mathematical and does
not involve discretion.

                                          11
                However, the Commonwealth Respondents also argue that mandamus
does not lie because West Mifflin had an adequate remedy at law, i.e., an appeal of
the Secretary’s tuition rate. West Mifflin responds that Section 1607(b)(4) does
not provide for a hearing where a school district is aggrieved by the Secretary’s
determination on a tuition rate. Further, Count I does not contain any allegations
that the tuition schedule was set forth in an adjudication with findings of fact and
conclusions of law, which is required by the Administrative Agency Law. 2 Pa.
C.S. §507 (“All adjudications of a Commonwealth agency shall be in writing, shall
contain findings and the reasons for the adjudication, and shall be served upon all
parties or their counsel personally, or by mail.”).
                The Administrative Agency Law5 defines an “adjudication” as “[a]ny
final order, decree, decision, determination or ruling by an agency affecting
personal property rights, privileges, immunities, duties, liabilities or obligations of
any or all of the parties to the proceeding in which the adjudication is made.” 2 Pa.
C.S. §101. It is beyond peradventure that West Mifflin has a right to be paid the
tuition required by statute. Guthrie v. Borough of Wilkinsburg, 478 A.2d 1279,
1281 (Pa. 1984) (adjudication is a determination that affects a right guaranteed by
statute). The Administrative Agency Law governs all Commonwealth agencies,
including the Department, and it provides that, “[n]o adjudication of a
Commonwealth agency shall be valid as to any party unless he shall have been
afforded reasonable notice of a hearing and an opportunity to be heard.” 2 Pa. C.S.
§504.

5
    2 Pa. C.S. §§501-508, 701-704.


                                          12
               We have explained that where “there are no specific provisions
regarding adjudicatory actions of an agency, the Administrative Agency Law [ ]
provides a default mechanism for the provision of hearings and for appeals from
administrative adjudications, which comport with due process requirements.”
Turner v. Pennsylvania Public Utility Commission, 683 A.2d 942, 946 (Pa.
Cmwlth. 1996). Here, the default mechanism for challenging the tuition rates set
by the Secretary is an administrative hearing before the Department of Education.
The Secretary’s tuition rate is a “determination” that affected Duquesne’s
“property rights.” 2 Pa. C.S. §101. However, it was not final because there was no
hearing. Likewise, the Secretary’s determination did not have findings of fact and
conclusions of law, which is required in order for a final determination, or
adjudication, to be valid. The Administrative Agency Law provides the exclusive
mechanism by which West Mifflin can challenge the merits of the Secretary’s
determination on tuition, whether on procedural or substantive grounds.             The
existence of this remedy forecloses West Mifflin’s request for a writ of mandamus
in Count I.6
               Count II – Declaratory Judgment - Violation of Article III,
               §32   of    the   Pennsylvania   Constitution    (Against
               Commonwealth Respondents)
               In Count II, West Mifflin seeks a declaration that

               [t]he tuition rate established by the Commonwealth for special
               education students reassigned from Duquesne to West Mifflin
               violates Article III, Section 32 of the Pennsylvania Constitution
6
  Because we hold that West Mifflin has a remedy under the Administrative Agency Law that
forecloses an action in mandamus, we need not consider the Commonwealth Respondents’
alternate argument that the mandamus count was untimely filed.


                                           13
             in that the rate is wholly arbitrary, has no rational relationship
             to any legitimate government purpose, and treats similarly
             situated students, taxpayers and school districts in a
             discriminatorily different fashion – all to the great financial
             detriment of West Mifflin and its taxpayers.

Petition for Review, ¶161. The Commonwealth Respondents have demurred to
this count for the stated reason that West Mifflin has not alleged “facts to
demonstrate that the classification established under section 1607(b)(4) … is
‘wholly irrelevant’ to the objective of providing a thorough and efficient education
for Duquesne students educated at and by West Mifflin....”            Commonwealth
Respondents’ Preliminary Objections, ¶34.
             Article III, Section 32 of the Pennsylvania Constitution states, in
relevant part, as follows:

             The General Assembly shall pass no local or special law in any
             case which has been or can be provided for by general law and
             specifically the General Assembly shall not pass any local or
             special law ... [r]egulating the affairs of ... school districts [.]

Pa. Const. art. III, §32 (emphasis added). When reviewing a statute that is alleged
to violate Article III, Section 32, our Supreme Court has explained that

             [o]ur constitutionally mandated concerns are to ensure that the
             challenged legislation promotes a legitimate state interest, and
             that a classification is reasonable rather than arbitrary and
             rest[s] upon some ground of difference, which justifies the
             classification and has a fair and substantial relationship to the
             object of the legislation. A legislative classification must be
             based on real distinctions in the subjects classified and not on
             artificial or irrelevant ones used for the purpose of evading the
             constitutional prohibition.      In its review, a court may
             hypothesize regarding the reasons why the General Assembly
             created the classifications.

                                          14
            … A classification will, therefore, not violate Article III,
            Section 32, if it is one based on “necessity ... springing from
            manifest peculiarities clearly distinguishing those of one class
            from each of the other classes and imperatively demanding
            legislation for each class separately that would be useless and
            detrimental to the others.”

Robinson Township v. Commonwealth, 147 A.3d 536, 573 (Pa. 2016) (citations
omitted).
            West Mifflin asserts that Section 1607(b) of the Public School Code
has singled out West Mifflin taxpayers for “particularized treatment” to benefit the
Commonwealth. Petition for Review, ¶163. West Mifflin contends that there is no
legitimate government purpose in having Duquesne pay higher tuitions to a public
charter school than it pays to West Mifflin. Likewise, there is no legitimate
government purpose served by having West Mifflin bear the expense of providing
transportation to Duquesne’s students while Duquesne pays for the transportation
of its students to charter schools or for allowing Duquesne to include students
enrolled in West Mifflin for purposes of allocating state funding. Accordingly,
West Mifflin asks this Court to:

            (a) [d]eclare 24 P.S. §16-1607(b)(4) to be unconstitutional in
            violation of Article III, §32 of the Pennsylvania Constitution;
            (b) [d]eclare that West Mifflin must receive special education
            funding reflective of the actual costs associated with the
            services provided to Duquesne special education students over
            and above the regular tuition rate;
            (c) [d]eclare that West Mifflin must be reimbursed for all
            costs associated with transportation of Duquesne students; [and]
            (d) [d]eclare that West Mifflin can include Duquesne students
            in West Mifflin’s ADM [average daily membership]
                                        15
              calculations for the purposes of receipt of state subsidies and
              special education funding[.]

Petition for Review at 48.
              The Declaratory Judgments Act, 42 Pa. C.S. §§7531-7541, provides
the means by which the moving party can settle “‘rights, status, and other legal
relations.’” Office of the Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014)
(citation omitted). There must exist a real or actual controversy; it is not to be used
for the pursuit “of an advisory opinion which may prove to be purely academic.”
Funk v. Wolf, 144 A.3d 228, 251 (Pa. Cmwlth. 2016) (citing Gulnac by Gulnac v.
South Butler County School District, 587 A.2d 699, 701 (Pa. 1991)). Lastly, “the
mere fact that a constitutional question is raised as to the validity of a statute does
not, without more, vest jurisdiction in a court of equity to adjudicate.” Borough of
Green Tree v. Board of Property Assessments, Appeals and Review of Allegheny
County, 328 A.2d 819, 823 (Pa. 1974). “The additional element required … is
either the absence of a statutorily-prescribed remedy or, if such remedy exists, then
a showing of its inadequacy in the circumstances.” Id.
              West Mifflin seeks an advisory opinion. Were this Court to declare
Section 1607(b)(4) of the Public School Code unconstitutional, it would not
resolve this matter. Rather, it would result in West Mifflin not receiving any
tuition while still having to educate the students. West Mifflin seeks higher tuition
for the Duquesne students it educates, including Duquesne’s special education
students.    There is a remedy by way of a hearing before the Department of
Education.    The Department cannot consider the constitutionality of Section
1607(b)(4), but it can make a factual record that relates to these issues. See

                                          16
Department of General Services v. Frank Briscoe Company, Inc., 466 A.2d 1336,
1341 (Pa. 1983) (“[T]he declaratory judgment procedure may not be used to
prejudge issues that are committed for initial resolution to an administrative forum,
any more than it may be used as a substitute to establish in advance the merits of
an appeal from that forum.”).       We sustain the Commonwealth Respondents’
demurrer to Count II.
       Count III – Mandamus: Title I and Special Education Funding
                       (Against all Respondents)

             West Mifflin seeks a writ of mandamus to require all Respondents to
remit all Title I funds received by Duquesne for students enrolled in West Mifflin
schools from 2007 to present. In addition, West Mifflin wants to use Duquesne
students in its district to calculate its federal funding entitlement. Duquesne argues
that Count III should be dismissed because Duquesne has no duty to turn over
funding that it may have received in prior years. The Commonwealth Respondents
seek the dismissal of Count III on the stated ground that West Mifflin, a third
party, does not have a right of action under the federal statute.
             At issue are federal programs available to public schools, specifically
the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§1400-1487,
and the Elementary and Secondary School Act, Title I, 20 U.S.C. §§6301-6576.
Count III alleges that Duquesne has received grants under these programs since the
2007-2008 school year but has not forwarded these grants to West Mifflin to cover
the Duquesne students.       West Mifflin argues that because Duquesne is not
educating students above grade 6, it cannot include students enrolled in West



                                          17
Mifflin schools in Duquesne’s average daily membership (ADM).                            Duquesne
contends that this violates federal law.
               West Mifflin “must demonstrate: a clear legal right for performance of
an act by the government; a corresponding duty in the government to perform the
ministerial act and mandatory duty; and the absence of any other appropriate or
adequate remedy.” Chester Community Charter School, 996 A.2d at 75. West
Mifflin, however, has not identified a federal statute or regulation that requires
either Duquesne or the Commonwealth Respondents to turn over Title I funds or
IDEA funds to West Mifflin.7 Moreover, West Mifflin does not cite any federal

7
  West Mifflin directs this Court to 20 U.S.C. §6338(a) in support of its contention that
Duquesne’s failure to turn over funds to it flies in the face of the express purposes of Title I, Part
A. We fail to see how this provision supports West Mifflin’s argument, as it relates to neglected
and delinquent children in institutions, not children being educated by a neighboring school
district. Section 6338 provides, in relevant part:
         (a) Allocations for neglected children
                (1) In general
                      If a State educational agency determines that a local
                      educational agency in the State is unable or unwilling to
                      provide for the special educational needs of children who are
                      living in institutions for neglected children as described in
                      section 6333(c)(1)(B) of this title, the State educational
                      agency shall, if such agency assumes responsibility for the
                      special educational needs of such children, receive the
                      portion of such local educational agency’s allocation under
                      sections 6333, 6334, 6335, and 6337 of this title that is
                      attributable to such children.
                (2) Special rule
                      If the State educational agency does not assume such
                      responsibility, any other State or local public agency that
                      does assume such responsibility shall receive that portion of
                      the local educational agency’s allocation.
20 U.S.C. §6338(a) (emphasis added). Section 6333(c)(1)(B) states:
         the number of children (determined under paragraph (4) for either the preceding
         year as described in that paragraph, or for the second preceding year, as the
         Secretary finds appropriate) aged 5 to 17, inclusive, in the school district of such
         agency in institutions for neglected and delinquent children (other than such
(Footnote continued on the next page . . . )
                                                 18
statute or regulation granting it a right of action under the IDEA. See Lawrence
Township Board of Education v. New Jersey, 417 F.3d 368, 372 (3d Cir. 2005) (a
local educational agency “has neither an express nor implied right of action under
the IDEA.”). Additionally, Section 2509.5 of the Public School Code8 governs
Commonwealth payments to school districts for the support of programs and
services for exceptional children. As discussed above, there is an administrative
remedy for West Mifflin to pursue regarding the calculation of payments it is to
receive under the Public School Code.
               West Mifflin’s other claim is that the classification of students for a
district’s average daily membership in Section 1607(f) of the Public School Code
violates the funding requirements of the IDEA. However, mandamus “is not a
proper vehicle for challenging the constitutionality of a statute, regulation or
policy.” Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007). Mandamus is not
used to establish legal rights but to compel the enforcement of established legal
rights. We sustain the preliminary objections to Count III.
                             Count IV – Breach of Contract
                            (Against Duquesne and Dr. Long)

               In Count IV, West Mifflin asserts that Duquesne has neither paid Steel
Center for the costs of Duquesne students since the 2007-2008 school year nor
reimbursed West Mifflin for its payment of such costs to Steel Center. West

(continued . . . )
       institutions operated by the United States), but not counted pursuant to subpart 1
       of part D of this subchapter for the purposes of a grant to a State agency, or being
       supported in foster homes with public funds.
20 U.S.C. §6338(c)(1)(B). Clearly, Section 6338 is not applicable to Duquesne.
8
  Added by Section 18 of the Act of August 5, 1991, P.L. 219, 24 P.S. §25-2509.5.


                                               19
Mifflin brings this claim “[t]o the extent that 24 P.S. §18-1809(c) indicates that a
breach of contract action is the appropriate cause of action to recoup unpaid
vocational-technical tuition.” Petition for Review, ¶187. To establish a claim for
breach of contract, a party must show: (1) the existence of a contract; (2) a breach
of the duty imposed by the contract; and (3) damages resulting from such breach.
Sewer Authority of City of Scranton v. Pennsylvania Infrastructure Investment
Authority of Commonwealth, 81 A.3d 1031, 1041-42 (Pa. Cmwlth. 2013).

             a.   Duquesne’s preliminary objection
             Duquesne responds that Count IV is legally insufficient because it
participates in the Steel Center, which is a vocational and technical center.
Therefore, Section 1809(c) of the Public School Code is inapplicable. Further,
Duquesne contends that Count IV does not allege facts to show that it has a
contractual obligation to pay West Mifflin and, in any case, Count IV is barred by
the statute of limitations. We address these arguments ad seriatim.
             As noted, the Public School Code provides that if a “school district
neglects or refuses to pay for [vocational program] tuition, it shall be liable
therefor, in an action of contract, to the school district” which the student attended.
24 P.S. §18-1809(c). It also provides that “any pupil residing in a nonparticipating
district may attend the area vocational-technical school or technical institute. The
school district in which the pupil resides shall be charged ....” 24 P.S. §18-1847.
             Count IV alleges that Duquesne does not participate in an approved
vocational program and, thus, Duquesne must pay the technical institutes where its
students are enrolled. Assuming this fact to be true, Duquesne can be held liable


                                          20
for breach of contract for the payment of tuition.9                  However, an assumpsit
complaint must set forth all the elements of a breach of contract, and Count IV
does not do so.10 Accordingly, we sustain Duquesne’s preliminary objection to
Count IV.11

               b.   Dr. Long’s preliminary objection
               Dr. Long contends that the Petition does not state a cause of action for
breach of contract under Sections 1809 and 1847 of the Public School Code
because Duquesne maintains a technical education program.                        However, the
pleading does not support that factual assumption, and it must be assumed that
Duquesne does not maintain an approved career and technical education program
and does not participate in a vocational school.
               In the alternative, Dr. Long argues that “[a]bsent some clear indication
that the legislature intends to bind itself contractually, the presumption is that ‘a
law is not intended to create private contractual or vested rights but merely
declares a policy to be pursued until the legislature shall ordain otherwise.”
Commonwealth Respondents’ Preliminary Objections ¶59 (citation omitted).
Simply, Section 1809(c) of the Public School Code does not provide a cause of
action against Dr. Long, who does not have a contract with West Mifflin. The
breach of contract claim must be brought against Duquesne, not Dr. Long.

9
  West Mifflin does not assert the existence of any written contract, the terms of the contract, or
when the written contract was in place.
10
   The Petition does not allege the existence of a contract or what duty imposed by the contract
was breached.
11
   Because we grant Duquesne’s preliminary objection, we need not address its argument
regarding the statute of limitations.


                                                21
            We agree and sustain Dr. Long’s preliminary objection to Count IV.
                         Count V – Unjust Enrichment
                       (Against Duquesne and Dr. Long)

            West Mifflin asserts an unjust enrichment claim against Duquesne and
Dr. Long for: (1) the Title I, Part A and federal and state special education funds
received and unjustly retained by Duquesne; (2) the amount of unreimbursed costs
of transportation of Duquesne students incurred by West Mifflin; and (3) the
tuition, costs and fees incurred by West Mifflin for the attendance of Duquesne’s
reassigned students to the Steel Center, dating back to the 2007-2008 school year.
            Duquesne contends that these allegations do not state a cause of action
for unjust enrichment because no benefit was conferred upon Duquesne.
Duquesne students are educated by West Mifflin pursuant to a statutory scheme,
and there is no allegation that Duquesne acted wrongfully, which is necessary to be
“unjustly enriched.” Duquesne complied with the statute by paying the tuition rate
established by the Secretary. There is no allegation to show how Dr. Long unjustly
benefitted by complying with the statute.
            “Unjust [e]nrichment is an equitable doctrine.” Commonwealth ex
rel. Pappert v. TAP Pharmaceutical Products, Inc., 885 A.2d 1127, 1137 (Pa.
Cmwlth. 2005). The doctrine will imply a contract where a party has been unfairly
benefited by another’s action.    Id.   “The elements of unjust enrichment are
‘benefits conferred on defendant by plaintiff, appreciation of such benefits by
defendant, and acceptance and retention of such benefits under such circumstances
that it would be inequitable for defendant to retain the benefit without payment of
value.’” Styer v. Hugo, 619 A.2d 347, 350 (Pa. Super. 1993) (citations omitted).

                                        22
                 Federal and state special education funds are paid to Duquesne for its
students.       West Mifflin concedes that the issue “is not with[] Duquesne’s
application for those funds, but rather in the fact that [it] retained those funds
instead of turning that portion of the funds over to West Mifflin reflective of the
Duquesne residents that were being educated in West Mifflin schools.” West
Mifflin Brief at 37. Further, West Mifflin concedes that Duquesne “began turning
over those funds to West Mifflin in the 2014-2015 school year,” albeit only for
students in grades 7 to 8. Id. at 38.
                 Further, Count V states that West Mifflin transports Duquesne’s
students to high school, middle school, special education placements, Steel Center,
and other locations, but the transportation subsidies do not cover its actual costs.
Petition for Review, ¶¶100-106. In effect, West Mifflin challenges the statutory
transportation funding provisions in the Public School Code, but unjust enrichment
is not the vehicle to challenge the validity of a statute. Accordingly, we sustain the
preliminary objections of Duquesne and Dr. Long to Count V.
         Count VI – Mandamus to Establish Education Advisory Committee
                          (Against all Respondents)12

                 Count VI challenges the Secretary’s failure to establish the Education
Advisory Committee as required in Section 1607(i) of the Public School Code, 24
P.S. §16-1607(i).13 Specifically, Count VI alleges that the Committee has not met



12
     Commonwealth Respondents did not file preliminary objections to this Count.
13
     It states:
           The following apply:
(Footnote continued on the next page . . . )
                                                23
or adhered to the semi-annual reporting and written response requirements.
Duquesne’s preliminary objections assert that it has nothing to do with the
functions of the Education Advisory Committee. West Mifflin agrees that Count

(continued . . . )
        (1) No later than ninety (90) days after designating a school district under
        subsection (b)(1), the secretary shall establish the Education Advisory Committee,
        consisting of members selected by the secretary, including:
                (i)      A representative of each school district designated under
                subsection (b)(1) recommended by the board of school directors of
                the designated school district.
                (ii)     A member of the board of control of the distressed school
                district subject to this section.
                (iii) An administrator from each school district designated
                under subsection (b)(1) and from the distressed school district
                subject to this section.
                (iv)     A teacher from each school district designated under
                subsection (b)(1) and from the distressed school district subject to
                this section.
                (v)      An elected official representing voters in each school
                district designated under subsection (b)(1) and the distressed
                school district subject to this section.
                (vi)     Three (3) residents of each of the school districts
                designated under subsection (b)(1).
                (vii) Three (3) residents of the distressed school district subject
                to this section.
                (viii) An employe of the department. The employe must not be a
                current member of the board of control.
                (ix)     A representative of the intermediate unit in which the
                school districts designated under subsection (b)(1) and the
                distressed school district subject to this section are located.
        (2) The Education Advisory Committee shall provide a semi-annual report to
        the secretary. The report shall include:
                (i)      An evaluation of the transition of students who have been
                assigned to a school district designated under subsection (b)(1).
                (ii)     Recommendations for changes to the process established
                under subsection (b)(2).
                (iii) Recommendations for improving education opportunities
                for students of a distressed school district under this section.
        (3) The secretary shall provide the Education Advisory Committee a written
        response to the semi-annual report required under paragraph (2).
24 P.S. §16-1607(i).


                                               24
VI is directed against the Department and the Secretary and that Duquesne was
added mistakenly. Accordingly, we dismiss Duquesne from Count VI of the
Petition.
                All Counts - Demurrer- Sovereign Immunity
              a.   Dr. Long
              Dr. Long objects to West Mifflin’s Petition in its entirety, asserting
each of the claims against him are barred by sovereign immunity. Under Section
671-A of the Public School Code,14 a receiver is not “personally liable for any
obligations of the school district[,]” and is “entitled to sovereign and official
immunity as provided in 1 Pa. C.S. §2310 (relating to sovereign immunity
reaffirmed; specific waiver) and shall remain immune from suit except as provided
by and subject to the provisions of 42 Pa.C.S. Ch. 85 Subchs. A (relating to general
provisions) and B (relating to actions against Commonwealth parties).” 24 P.S.
§6-671-A(i). West Mifflin does not, and cannot, point to a statute that has waived
Dr. Long’s sovereign immunity in this regard. Accordingly, Dr. Long is entitled to
be dismissed from the proceeding by reason of sovereign immunity.15




14
  Added by Section 10 of the Act of July 12, 2012, P.L. 1142.
15
   Because we have determined to dismiss Dr. Long from the proceeding, the Commonwealth
Respondents’ Application to Remove Party and Amend Caption is dismissed, in part, as moot,
with regard to Dr. Paul Long. With regard to the remainder of the Application, which seeks to
remove the Secretary of Education, we deny the Application. Count VI of the Complaint is an
action in mandamus against the Secretary Education and PDE to obtain an order requiring the
Secretary to perform his statutory duties. West Mifflin contends that the Secretary has not
convened and/or continued the education advisory committee as required by Section 1607(i) of
the Public School Code, 24 P.S. §16-1607(i).


                                             25
             b.   Department of Education and the Secretary
             Likewise, the Department and the Secretary object to each count on
grounds of sovereign immunity. Generally, the Commonwealth and its agencies,
officials and employees acting within the scope of their duties are immune from
suits for damages. 1 Pa. C.S. §2310. Moreover, “[d]amage suits will be barred
unless the plaintiff establishes that the cause of action falls under one of the
specifically enumerated legislative exceptions to immunity.”           Stackhouse v.
Pennsylvania State Police, 892 A.2d 54, 59 (Pa. Cmwlth. 2006).
             Sovereign immunity is an affirmative defense which should be raised
as new matter. However, this Court has recognized limited exceptions to this rule:

             First, a party may raise the affirmative defense of immunity as a
             preliminary objection where it is clearly applicable on the face
             of the complaint; that is, that a cause of action is made against a
             governmental body and it is apparent on the face of the
             pleading that the cause of action does not fall within any of the
             exceptions to governmental immunity. Second, where a party
             erroneously asserts an immunity defense in a preliminary
             objection, the failure of the opposing party to file a preliminary
             objection to the defective preliminary objection in the nature of
             a motion to strike for lack of conformity to law waives the
             procedural defect and allows the trial court to rule on the
             immunity defense.

Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014)
(citations omitted).
             In this case, the affirmative defense of sovereign immunity is not
clearly applicable from the face of the Petition. Accordingly, the Department and
the Secretary should raise sovereign immunity as a defense in their new matter.


                                         26
                                         Conclusion
               For the reasons stated above, all counts against Duquesne and Dr.
Long are dismissed.         Counts I and II are transferred to the Department of
Education for a hearing and adjudication on the adequacy of the tuition rates paid
to West Mifflin to educate Duquesne students. See 42 Pa. C.S. §5103(a).16 We
sustain the demurrer to Counts III, IV and V because they do not state a claim.17

                                         ______________________________________
                                         MARY HANNAH LEAVITT, President Judge




16
   Section 5103(a) of the Judicial Code allows a court to transfer erroneously filed appeals or
other matters to “the proper tribunal.” 42 Pa. C.S. §5103(a). “Tribunal” is defined as:
        a court or magisterial district judge or other judicial officer of this Commonwealth
        vested with the power to enter an order in a matter, the Board of Claims, the
        Board of Property, the Office of Administrator for Arbitration Panels for Health
        Care and any other similar agency.
42 Pa. C.S. §5103(d). In determining whether a particular entity is a tribunal for purposes of
Section 5103(d), “the relevant inquiries are whether the entity is a commonwealth agency with
statewide jurisdiction … and whether the entity exercises jurisdiction involving subject matters
which are, in other instances, within the original jurisdiction of the courts.” Meck v. Carlisle
Area School District, 625 A.2d 203, 206 (Pa. Cmwlth. 1993). The Secretary of Education has
been found to be a tribunal for purposes of Section 5103(d) for matters relating to teacher
demotions. See Kemp v. City of Pittsburgh Public School District, 933 A.2d 130 (Pa. Cmwlth.
2007) (affirming court of common pleas transfer of case to Secretary of Education, who has
exclusive jurisdiction to hear appeal of board of education decision upholding recommended
demotion); Meck, 625 A.2d at 206 (district’s conduct constituted a demotion, which was
appealable to the Secretary of Education rather than court of common pleas; trial court should
have transferred case to Secretary of Education upon determining it lacked jurisdiction over
appeal).
      The Secretary of Education is a tribunal under Section 5103(d) for appeals related to
public school funding. First, the Secretary of Education has statewide jurisdiction. Second, the
Secretary would be exercising jurisdiction over a matter under the Public School Code, which is
a subject matter within the original jurisdiction of either a court of common pleas or this Court.
Accordingly, a transfer is appropriate.
17
   Finally, we deny Petitioners’ Application to Strike Portions of the Reply Brief filed by the
Commonwealth Respondents.


                                               27
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Mifflin Area School District;       :
and Phil Shar, Resident and              :
Taxpayer of the West Mifflin             :
Area School District,                    :
                   Petitioners           :
                                         :
            v.                           : No. 314 M.D. 2016
                                         :
Pedro A. Rivera, Secretary of            :
Education of the Commonwealth            :
of Pennsylvania; the Pennsylvania        :
Department of Education;                 :
Duquesne City School District;           :
and Paul B. Long, Receiver for           :
Duquesne City School District,           :
                   Respondents           :

                                     ORDER

            AND NOW, this 17th day of January, 2017, we SUSTAIN the
preliminary objections of Duquesne City School District and Dr. Paul Long; all
counts of the Petition are DISMISSED as to them. We DISMISS Counts I and II
of the Petition for lack of jurisdiction and TRANSFER those counts to the
Department of Education for an administrative hearing and adjudication.        We
SUSTAIN the preliminary objections of Pedro A. Rivera, Secretary of Education,
and of the Department of Education to Counts III, IV, and V of the Petition. The
Court RETAINS jurisdiction over Count VI.
            Petitioners’ Application to Strike Portions of the Reply Brief filed by
certain Respondents is DENIED.
                                     ______________________________________
                                     MARY HANNAH LEAVITT, President Judge
