              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Graystone Academy Charter School,         :
                      Petitioner          :
                                          :
                   v.                     :
                                          :
Coatesville Area School District,         :   No. 1336 C.D. 2013
                        Respondent        :
                                          :
Coatesville Area School District,         :
                        Petitioner        :
                                          :
                   v.                     :
                                          :
Graystone Academy Charter School,         :   No. 1402 C.D. 2013
                      Respondent          :   Argued: June 20, 2014


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE COVEY                                   FILED: August 27, 2014

             Graystone Academy Charter School (Charter School) petitions this
Court for review of the State Charter School Appeal Board’s (CAB) August 2, 2013
order affirming the Coatesville Area School District’s (District) Board of Directors’
(Board) decision to revoke the Charter School’s charter. The District cross-petitions
this Court for review of CAB’s June 18, 2012 order dismissing its motion to quash
the Charter School’s appeal to CAB as untimely. There are nine issues before the
Court: (1) whether CAB committed an error of law in dismissing the District’s
motion to quash; (2) whether William Harner (Harner), the Secretary of Education
(Secretary) nominee, had the authority to call to order, preside over and/or participate
in the CAB meeting during which CAB voted to revoke the Charter School’s charter
and to execute an order memorializing CAB’s decision; (3) whether the District is
estopped from challenging the Charter School’s changes to the Charter School’s
education program; (4) whether CAB and the District erred when they determined
that the Charter School’s charter includes by incorporation the Charter School
application (Charter Application); (5) whether CAB and the District erred when they
determined that the Charter School materially deviated from its charter; (6) whether
CAB and the District erred when they determined that the Charter School failed to
meet the student performance requirements; (7) whether the Charter School suffered
disparate treatment; (8) whether CAB and the District erred when they determined
that the Charter School failed to meet generally-accepted standards of fiscal
management; and (9) whether CAB and the District violated the Charter School’s due
process rights.
                                       Background
              In 2000, the District issued a three-year charter to the Charter School
pursuant to the Charter School Law (CSL).1 The District subsequently voted to
extend the charter two years and, in 2006, the District renewed the Charter School’s
charter for another five years, starting July 1, 2007. In 2011, after the Charter School
prematurely sought to renew its charter, the District initiated a comprehensive five-
year review. Since the charter would not lapse until 2012, and the District wished to
terminate the charter prior to that date, it issued a Notice of Revocation to the Charter
School on March 16, 2011. The Notice of Revocation set forth five revocation
grounds with each containing multiple reasons. The five categories were: material
violations of the charter; failure to meet student performance standards; failure to
meet standards of fiscal management; failure to provide the District certain reports
and records; and, violations of law.

       1
         Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of June 19,
1997, P.L. 225, 24 P.S. §§ 17-1701-A - 17-1751-A.
                                              2
               The Board appointed hearing officer James E. Prendergast (Prendergast)
to preside over the revocation proceedings which consisted of thirteen days of
hearings. On November 22, 2011, after receiving public comment, the Board voted
unanimously to revoke the Charter School’s charter. The Charter School appealed to
CAB on January 24, 2012, and the District filed a motion to quash the appeal. On
June 18, 2012, CAB dismissed the District’s motion to quash. On August 2, 2013,
CAB issued its adjudication, concluding that the evidence supported revoking the
Charter School’s charter on three separate grounds: (1) material charter violations; (2)
failure to meet student performance standards; and (3) failure to timely submit audit
reports. On August 7, 2013, the Charter School filed a petition for review and motion
for stay with this Court. By August 15, 2013 order, this Court denied the Charter
School’s motion for stay. On August 20, 2013, the District filed a cross-petition for
review.2 On September 16, 2013, the Charter School filed a petition for review with
the Pennsylvania Supreme Court to overturn this Court’s denial of its motion for stay.
By October 11, 2013 order, our Supreme Court denied the Charter School’s petition
for review.
                                       Motion to Quash
               The District’s cross-petition contains a threshold issue which we will
address first.3 The District argues that CAB committed an error of law in dismissing


       2
          “Our scope of review of an order of [CAB] is limited to a determination of whether
constitutional rights were violated, errors of law committed or whether the decision is not supported
by substantial evidence.” Cmty. Serv. Leadership Dev. Charter Sch. v. Pittsburgh Sch. Dist., 34
A.3d 919, 924 n.7 (Pa. Cmwlth. 2012).
        3
          The District does not technically have standing to challenge CAB’s order because the
District was not aggrieved. However, the District is asserting alternative grounds for affirming
CAB’s order, i.e., CAB erred in addressing the merits of the Charter School’s appeal because it
lacked jurisdiction based on the Charter School’s untimely appeal. This issue is acceptable. See
Keebler v. Zoning Board of Adjustment of City of Pittsburgh, 998 A.2d 670 (Pa. Cmwlth. 2010).
Thus, although improperly raised as a cross-appeal, we will address the District’s issue concerning
its motion to quash.
                                                 3
the District’s motion to quash because the Charter School did not appeal from the
Board’s revocation of its charter to CAB for 63 days.4
              Although the Board voted to revoke the Charter School’s charter on
November 22, 2011, the District did not send the Charter School a copy of the
decision and order until December 7, 2011.5                The Charter School received the
Board’s decision and order on December 9, 2011, and filed its appeal therefrom on
January 24, 2012, 44 days thereafter.6
              In dismissing the District’s motion, CAB stated in its decision: “The
[CSL] is silent on this issue, and CAB has not by way of regulation, informal
guidance or through its decisions clearly established the time within which the appeal
of a decision to revoke or non-renew a charter must be filed.” CAB June 18, 2012
Dec. (CAB(1) Dec.) at 2. CAB specifically held: “[W]e have not set a specific appeal
time from decisions to revoke or non[-]renew charters. Having not done so, we will



       4
          The Board voted to revoke the charter on November 22, 2011 and the Charter School
appealed to CAB on January 24, 2012.
        5
          The District sent the Board’s decision and order by certified mail.
        6
          The District maintains that the Charter School had notice earlier because “the Charter
School’s Solicitor received service of the Findings of Fact and Conclusions of Law and Order as an
attachment to a filing in a federal court proceeding involving the Parties, and the Findings of Fact
and Conclusions of Law were posted to [the District’s] website for public view.” District First Br.
at 38 (emphasis added). However, neither of the above publications can be construed as effective
service of the Board’s decision and order on the Charter School. Moreover,

              where the appeal period is triggered by administrative action, the
              involved administrative agency has a duty to provide to the recipient
              information essential to calculating the appeal period. Without such
              information, the recipient has no reliable basis for knowing the
              number of days remaining in which to file a petition for review.
              Where the agency’s notice is defective in this regard, we will not
              dismiss an appeal for untimeliness.

Julia Ribaudo Senior Servs. v. Dep’t of Pub. Welfare, 969 A.2d 1184, 1188-89 (Pa. 2009) (citations
omitted).


                                                 4
not penalize [the Charter School] for an appeal filed 46[7] days after [the Board’s]
decision.” Id. at 4.
              The District maintains that Germantown Settlement Charter School v.
Philadelphia School District (CAB 2008-06) (Germantown), controls the outcome
here, and requires that an appeal be filed within 30 days of the revocation decision.
However, in Germantown, CAB erroneously relied on Section 5571 of the Judicial
Code, which directs:

              (a) General rule.--The time for filing an appeal, a petition
              for allowance of appeal, a petition for permission to appeal
              or a petition for review of a quasi-judicial order, in the
              Supreme Court, the Superior Court or the
              Commonwealth Court shall be governed by general
              rules. No other provision of this subchapter shall be
              applicable to matters subject to this subsection.
              (b) Other courts.--Except as otherwise provided in
              subsections (a) and (c) and in [S]ection 5571.1 (relating to
              appeals from ordinances, resolutions, maps, etc.), an appeal
              from a tribunal or other government unit to a court or from
              a court to an appellate court must be commenced within
              30 days after the entry of the order from which the appeal
              is taken, in the case of an interlocutory or final order.

42 Pa.C.S. § 5571 (emphasis added). Because the Charter School appealed from the
Board to CAB, not “to a court or from a court,” Section 5571 of the Judicial Code
does not control in the instant action. Further, in Germantown, CAB specifically held
as a Conclusion of Law that “CAB acted within its discretionary authority when it
granted the Motion to Quash.” Germantown, Slip Op. at 3, Conclusion of Law
(COL) 6 (emphasis added).             Moreover, although CAB found the appeal in
Germantown untimely, it decided the appeal in In Re: Wonderland Charter School
(CAB 2002-07), wherein, the appeal was filed over 30 days after the district denied


       7
         CAB refers to 46 days rather than 44 days because it used the mailing date of December 7,
2011, as opposed to the date of receipt which was December 9, 2011. See CAB(1) Dec. at 2.
                                                5
the charter school’s renewal. See also In Re: Ronald H. Brown Charter School (CAB
2005-08) (appeal decided although filed beyond 30 days). Thus, Germantown is not
dispositive.
               The Charter School contends CAB’s website establishes that the time for
appeal is 60 days; however, the website does not so state. Rather, CAB’s website
refers to the 60 day time period for gathering signatures to appeal from a denial of an
original charter school application or a resubmitted application. See Reproduced
Record (R.R.) at 250a. Thus, CAB’s website is not dispositive.
               Pursuant to Section 1721-A(b) of the CSL, CAB

               shall meet as needed to fulfill the purposes provided in this
               subsection. A majority of the members of [CAB] shall
               constitute a quorum, and a majority of the members of
               [CAB] shall have authority to act upon any matter properly
               before [CAB]. [CAB] is authorized to establish rules for
               its operation.

24 P.S. § 17-1721-A(b) (emphasis added). Further,

               [w]ell-settled precedent establishes that courts defer to an
               administrative agency’s interpretation of its own regulations
               unless that interpretation is unreasonable. The task of the
               reviewing court is limited to determining whether the
               agency’s interpretation is consistent with the regulation and
               with the statute under which the regulation was
               promulgated. The United States Supreme Court has
               referred to this deference as the interpretive lawmaking
               power of administrative agencies and has characterized
               it as a ‘necessary adjunct’ of the authority to
               promulgate and enforce regulations.

Marshall v. Commonwealth, 41 A.3d 67, 77 (Pa. Cmwlth. 2012) (emphasis added)
(quoting Dep’t of Envtl. Prot. v. N. Am. Refractories Co., 791 A.2d 461, 464–65 (Pa.
Cmwlth. 2002) (citations omitted)). Here, CAB never established rules denoting the
time period from which to appeal a local school district board’s decision to revoke or
non-renew charters to CAB. While reluctant to leave the time for appeal open-ended,

                                            6
this Court will not usurp CAB’s authority by specifying the appeal period.
Accordingly, CAB’s order denying the District’s motion to quash is affirmed.
              This Court acknowledges the continued confusion that will persist in the
absence of a rule establishing an appeal time period from a local school district
board’s decision to revoke or non-renew charters to CAB. The inconsistency of
CAB’s prior decisions on this issue demands that CAB use the authority bestowed
upon it through Section 1721-A(b) of the CSL to set forth the number of days for
which an appeal must be commenced. Thus, we strongly urge CAB to promulgate
and steadfastly enforce such a rule.
             Authority of Department of Education Secretary Nominee
              Having disposed of the issue raised in the District’s cross-petition, we
will now address the Charter School’s issues. The Charter School first argues that
Harner did not have the authority, absent confirmation by the Pennsylvania Senate, to
call to order, preside over and/or participate in the CAB meeting during which CAB
revoked the Charter School’s charter and executed the order memorializing CAB’s
decision. However, as nominee to fill the vacancy in the Secretary of Education
position, Harner was Acting Secretary for the Department of Education8 at all
relevant times during the proceeding before CAB involving this case.                       Harner
withdrew his nomination on August 27, 2013, before being confirmed by the



       8
         Harner was appointed Acting Secretary of Education effective June 3, 2013, when then
Secretary of Education Ronald Tomalis left the Department in May 2013 to become an advisor to
Pennsylvania Governor Tom Corbett on higher education. Specifically, “Harner was nominated by
the Governor of the Commonwealth of Pennsylvania to fill the vacancy in the position of Secretary
of Education on May 22, 2013.” Charter School First Br. at 29. This Court takes judicial notice of
the July 26, 2013 letter from Governor Tom Corbett to “Acting Secretary” Harner which reads as
follows: “I am pleased to appoint you as Chairman of [CAB], effective immediately. Please accept
my best wishes for success in your new responsibilities and appreciation for your dedicated service
to the Commonwealth.” District Second Br., Appendix A.


                                                7
Pennsylvania Senate which date was after the order issued and appealed from in the
instant matter.
             The District retorts that the Charter School waived this issue because
although it could not be raised below since Harner did not withdraw his name for
consideration until August 27, 2013, the Charter School had 30 days from CAB’s
August 2, 2013 order to amend its petition for review to include this issue. On
August 26, 2013, the Charter School moved to amend its petition for review to
include three additional issues which this Court granted.       The Charter School’s
Motion to Amend its Petition for Review did not include this issue. On September
17, 2013, the Charter School filed a Second Motion to Amend its Petition for Review
to include this issue which this Court denied because it was beyond the 30 days. See
Commonwealth Ct. September 26, 2013 Order (September 26, 2013 Order).
             It is undisputed that the Charter School “failed to preserve this issue in
[its] petition for review and, thus, it is waived. See Pa. State Troopers Ass’n v. Pa.
Labor Relations Bd., 39 A.3d 616, 622 (Pa.[]Cmwlth.[]2012) (‘Issues not raised or
‘fairly comprised’ within the petition for review are deemed waived.’); Pa. R.A.P.
1513(d).” Fisler v. State Sys. of Higher Educ., Cal. Univ. of Pa., 78 A.3d 30, 46 (Pa.
Cmwlth. 2013). Further, by September 26, 2013 Order, this Court specifically denied
the Charter School’s Second Motion to Amend its Petition for Review because a
“petitioner may not amend his petition for review beyond the 30-day filing period in
order to raise new issues.” Edwards v. Unemployment Comp. Bd. of Review, 3 A.3d
690, 693-94 (Pa. Cmwlth. 2010).
             The Charter School acknowledges that this issue was not included in its
Petition for Review or its Amended Petition for Review and that this Court denied its
Second Motion to Amend its Petition for Review to include this issue due to
timeliness. However, the Charter School asserts in its brief that it included the issue
nonetheless because it goes directly to this Court’s jurisdiction to decide the case.
                                          8
The Charter School maintains that since Harner was without the authority to
participate in the meeting at which CAB revoked the Charter School’s charter or
execute the order in question, the order is void ab initio and consequently there exists
no order from which an appeal can be taken to this Court.        See Charter School First
Br. at 26.

             Under the de facto doctrine, the official acts of one who acts
             under the color of title to an office are to be given the same
             effect as those of a de jure official. The acts of de facto
             officials that are performed under the color of title are valid
             with regard to the public, even if their election or
             appointment was irregular or illegal.

Ucheomumu v. Cnty. of Allegheny, 729 A.2d 132, 135 (Pa. Cmwlth. 1999) (citation
omitted). Thus, notwithstanding Harner’s subsequent withdrawal of his nomination,
he had the authority as Acting9 Secretary to call to order, preside over and participate
in the meeting of CAB during which CAB revoked the Charter School’s charter and
executed the order memorializing its decision.
                                         Estoppel
             The Charter School next asserts that the District is estopped from
challenging changes to the Charter School’s education program where the Charter
School provided notice to the District of the changes, the District failed to object, and
the Charter School continued to operate under its reasonable interpretation of the
charter in reliance on the District’s inaction. The District responds that the Charter
School’s estoppel issue was never raised before CAB.
             The law is well-settled that issues not raised in the lower tribunal are
waived and cannot be raised for the first time on appeal. Schmidt v. Boardman Co.,
11 A.3d 924 (Pa. 2011). At the outset, there is “no indication that this [estoppel]


      9
          Black’s Law Dictionary 29 (9th Ed. 2009), defines “acting” as: “Holding an interim
position; serving temporarily[.]”
                                             9
issue was presented to [CAB], and [the Charter School] has failed to direct us to any
portion of the record that would show otherwise. Therefore, this issue has been
waived.”       Commonwealth v. Spotz, 18 A.3d 244, 275 n.17 (Pa. 2011).
Notwithstanding, “[t]he essential elements of estoppel are an inducement by the party
sought to be estopped to the party who asserts the estoppel to believe certain facts to
exist-and the party asserting the estoppel acts in reliance on that belief.” Ward v.
Dep’t of Transp., Bureau of Motor Vehicles, 65 A.3d 1078, 1084 (Pa. Cmwlth. 2013)
(quoting Westinghouse Elec. Corp./CBS v. Workers’ Comp. Appeal Bd. (Korach),
883 A.2d 579, 586 (Pa. 2005) (internal quotation marks omitted)).
              The Charter School contends that many of the charter violations that
formed the basis of the revocation were in existence before the Charter School’s
attempted renewal in 2011, and the Board should have been aware of them when the
Charter School’s charter was renewed in September 2006.10                    For example, the

       10
           Section 1728-A(a) of the CSL specifically provides that “[t]he local board of school
directors shall annually assess whether each charter school is meeting the goals of its charter and
shall conduct a comprehensive review prior to granting a five (5)[-]year renewal of the
charter.” 24 P.S. § 17-1728-A(a) (emphasis added). Further, Section 1729-A of the CSL states in
relevant part:

              (a) During the term of the charter or at the end of the term of the
              charter, the local board of school directors may choose to revoke or
              not to renew the charter based on any of the following:

              (1) One or more material violations of any of the conditions,
              standards or procedures contained in the written charter signed
              pursuant to [S]ection 1720-A.

              (2) Failure to meet the requirements for student performance set forth
              in 22 Pa. Code Ch. 5 (relating to curriculum) or subsequent
              regulations promulgated to replace 22 Pa.[]Code Ch. 5 or failure to
              meet any performance standard set forth in the written charter signed
              pursuant to [S]ection 1716-A.

              (3) Failure to meet generally[-]accepted standards of fiscal
              management or audit requirements.

                                                10
Paragon Curriculum had been discontinued at the end of the 2006-2007 school year, a
letter regarding reducing the number of instructional days was sent in 2008, the
library described in the Charter School’s Charter Application never existed, and the
annual reports from at least 2004-2005 do not identify primary care teaching or
“looping” or performance pay incentive for teachers as part of the Charter School’s
educational programming. See Charter School First Br. at 33, 35, 36, 37, 38. Thus,
the Charter School was induced to rely on the fact that the departures from the charter
were acceptable.
               With the exception of the letter from the Charter School to the District
stating “[s]ubject to the approval of the [District]” the Charter School would be
reducing its instructional days from 200 to 181, the District had no advance notice
regarding the above modifications to the Charter School’s charter. R.R. at 1532a. In
addition, as stated in CAB’s Finding of Fact (FOF) 25,11 the Charter School “stopped
using the Paragon Curriculum at the end of [the] 2005-2006 school year, but
continued to promote [it] as its ‘signature curriculum,’ in [the Charter School’s]
Annual Report filed with [Pennsylvania Department of Education (]PDE[)],
dated October 9, 2007.” CAB August 2, 2013 Dec. (CAB(2) Dec.) at 7 (emphasis
added). Moreover, the letter regarding reducing the number of instructional days was
sent in 2008 but was never approved, and the District did not learn that the library
described in the Charter School’s Charter Application never existed until the District
conducted its comprehensive review in 2010. See CAB(2) Dec. at 8, FOF 29-31.




               (4) Violation of provisions of this article.
24 P.S. § 17-1729-A (emphasis added).
        11
           “The [agency’s] findings of fact are conclusive on appeal only so long as the record, taken
as a whole, contains substantial evidence to support them.” Stage Road Poultry Catchers v. Dep’t
of Labor and Industry, Office of Unemployment Comp., Tax Services, 34 A.3d 876, 886 (Pa.
Cmwlth. 2011). Here, substantial evidence supports CAB’s findings.
                                                   11
Because the District had no prior knowledge of the alterations, the District could not
have induced the Charter School to believe or rely on the fact that the changes were
acceptable.
              Section 1702-A of the CSL provides in pertinent part:
              It is the intent of the General Assembly, in enacting this
              article, to provide opportunities for teachers, parents, pupils
              and community members to establish and maintain schools
              that operate independently from the existing school district
              structure as a method to accomplish all of the following:

              (1) Improve pupil learning.

              (2) Increase learning opportunities for all pupils.

24 P.S. § 17-1702-A. Further, Section 1720-A(a) of the CSL establishes that:

              Upon approval of a charter application under [S]ection
              1717-A [of the CSL], a written charter shall be developed
              which shall contain the provisions of the charter application
              and which shall be signed by the local board of school
              directors of a school district, by the local boards of school
              directors of a school district in the case of a regional charter
              school or by the chairman of the appeal board pursuant to
              [S]ection 1717-A(i)(5) [of the CSL] and the board of
              trustees of the charter school. This written charter, when
              duly signed by the local board of school directors of a
              school district, or by the local boards of school directors of
              a school district in the case of a regional charter school, and
              the charter school’s board of trustees, shall act as legal
              authorization for the establishment of a charter school.
              This written charter shall be legally binding on both the
              local board of school directors of a school district and
              the charter school’s board of trustees.

24 P.S. § 17-1720-A(a) (emphasis added). In order to change the terms of a charter, a
charter school is “required to amend its charter.” Career Connections Charter High
Sch. v. Sch. Dist. of Pittsburgh, 91 A.3d 736, 744 (Pa. Cmwlth. 2014). Moreover, a
charter school that changes the terms of the charter “without [amending its charter], is

                                            12
subject to closure under Section 1729–A (a)(1) of the CSL, regardless of whether
the [school d]istrict knew of the changes.” Id. (emphasis added).
             Here, the record is devoid of evidence that the Charter School and the
District amended the Charter School’s charter. In fact, the Charter School does not
appear to dispute CAB’s findings that the Charter School made changes to its charter,
rather, it contends that the District knew of the changes and by its inaction implicitly
approved the changes. However, that is not the law. Nor is the equitable doctrine of
estoppel applicable. “The doctrine of unclean hands requires that one seeking equity
act fairly and without fraud or deceit as to the controversy in issue . . . .” Mazzitti and
Sullivan Counseling Servs., Inc. v. Dep’t of Pub. Welfare, 7 A.3d 875, 882 (Pa.
Cmwlth. 2010) (footnote omitted) (quoting Terraciano v. Dep’t of Transp., Bureau
of Driver Licensing, 753 A.2d 233, 237-38 (Pa. 2000) (citations omitted)). The law
did not allow the Charter School to unilaterally change the charter’s terms.
Moreover, the Charter School acknowledges in its letter to the District that the change
in the number of school days required the District’s approval. Notwithstanding this
admission, the Charter School reduced the number of school days without
authorization. Thus, the Charter School does not have clean hands. Mindful of the
Legislature’s intent for enacting the CSL - to “[i]mprove pupil learning” and
“[i]ncrease learning opportunities for all pupils” - although the District could
possibly have revoked the Charter School’s charter sooner as the Charter School
admittedly altered its charter without authorization, we disagree with the Charter
School’s position that because the District did not revoke the charter earlier, it cannot
do so now. 24 P.S. § 17-1702-A(1), (2) (emphasis added).
                Charter Application Incorporated into the Charter
             The Charter School next contends that CAB and the District erred when
they determined that the Charter School’s charter includes by incorporation the
Charter Application when the express language of the CSL requires the District to
                                            13
develop a written charter that incorporates the terms of the application into the
charter. Section 1720-A(a) of the CSL expressly provides that “[u]pon approval of a
charter application under [S]ection 1717-A [of the CSL], a written charter shall be
developed which shall contain the provisions of the charter application . . . .” 24
P.S. § 17-1720-A(a) (emphasis added).12 As illustrated in Northside Urban Pathways
Charter School v. State Charter School Appeal Board (Northside), 56 A.3d 80 (Pa.
Cmwlth. 2012), this statutory provision incorporates a charter school’s application as
a matter of law. The Northside Court explained:

              If a charter school states in its charter application that it will
              be located in a particular building, then that provision
              becomes part of the school’s charter. If the school changes
              its location during the term of the charter without amending
              its charter, it is subject to closure under Section 1729-
              A(a)(1) of the [CSL], 24 P.S. § 17-1729-A(a)(1).

Id. at 86.
              Here, the Charter School was aware that CAB took the position that the
Charter Application was automatically part of the charter and CAB’s underlying
support therefor because the Charter School had unsuccessfully sought to amend its
Charter Application for the purpose of deviating from its charter. Specifically, in its
November 10, 2004 letter to the District, the Charter School requested “an
amendment to the [Charter Application][,] . . . to add grades 9 and 10 to [its] existing
charter application . . . .” R.R. at 1367a; see also R.R. at 1532a (Charter School’s
February 20, 2008 letter to the District requesting change in calendar days).




       12
         Approval of a charter “is more like the issuance of a regulatory permit where the state or
local government must honor the terms of the permit unless breached by the party receiving the
permit.” Foreman v. Chester-Upland Sch. Dist., 941 A.2d 108, 115 (Pa. Cmwlth. 2008).
                                                14
              In giving due deference to the administrative agency whose
responsibility it is to interpret and apply the law it is to administer, 13 we embrace
CAB’s rationale as the basis for our ruling set forth below.                  CAB articulately
explained:

              [T]he rules of statutory construction require that a statute’s
              language must be read in a sense which harmonizes with the
              subject matter and its general purpose and object. Busy
              Beaver Bldg. Centers, Me. v. Tueehe, 442 A.2d 252, 256
              (Pa. Super[.] 1981). The general purpose and object of the
              CSL are set forth in section 1702-A, 24 P.S. § 17-1702-A,
              where the General Assembly outlined its intent in enacting
              the CSL. Also, in evaluating a charter school application
              initially, the local board of school directors is to consider
              criteria including, but not limited to, the criteria set forth in
              [S]ection 1717-A(e)(2) of the CSL, 24 P.S. § 17-171[7]-
              A(e)(2), which specifically references, among other things,
              ‘the extent to which the application[]. . . conforms to the
              legislative intent outlined in section 1702-A.’ Section
              1717-A(e)(2)(iii), 24 P.S. § 17-1717-A(e)(2)(iii). Given (1)
              that the legislature established an application process in
              which the charter school applicant must provide specified
              information to the chartering district so as to assure that the
              proposed charter school will, among other things, fulfill the


       13
          “CAB is the administrative agency charged with exclusive review of an appeal of a local
school board decision not to grant a charter application[.]” McKeesport Area Sch. Dist. v. Propel
Charter Sch. McKeesport, 888 A.2d 912, 916 n.4 (Pa. Cmwlth. 2005); Souderton Area Sch. Dist. v.
Souderton Charter Sch. Collaborative, 764 A.2d 688, 692 n.8 (Pa. Cmwlth. 2000).
              It is a fundamental principle of administrative law that an
              administrative agency’s interpretation of the statute it is charged to
              administer is entitled to deference on appellate review absent fraud,
              bad faith, abuse of discretion, or clearly arbitrary action. Our
              Supreme Court has stated: It is well settled that when the courts of
              this Commonwealth are faced with interpreting statutory language,
              they afford great deference to the interpretation rendered by the
              administrative agency overseeing the implementation of such
              legislation.
Turchi v. Phila. Bd. of License & Inspection Review, 20 A.3d 586, 591 (Pa. Cmwlth. 2011) (citation
and quotation marks omitted).
                                               15
             stated legislative intent of the CSL, and (2) that the charter
             application is the document by which the charter school
             applicant persuades the chartering district that the proposed
             charter school will further that specifically-stated legislative
             intent, it follows that interpreting the statute to incorporate
             the charter application into the charter as a matter of law
             harmonizes with that legislative intent.

             Indeed, interpreting the CSL differently could result in an
             absurd implementation of the CSL in which a chartering
             district could approve a charter application, but because it
             neglects to include express incorporation language in the
             written charter, the charter school could immediately
             deviate from any of the items set forth in the charter
             application.

CAB(2) Dec. at 32-33 (footnote omitted). In adopting CAB’s rationale, we also
accept CAB’s holding in its Fell Charter School (CAB 2007-04) decision as our
ruling herein on this issue:
             When a charter is granted by a local board of school
             directors, the charter school is required to comply with the
             terms and conditions of that charter, as well as the
             information contained in the charter school application,
             which is incorporated into the charter. 24 P.S. § 17-1720-
             A; see also 24 P.S. § 17-1729-A(a)(1).

Id. at 7. Accordingly, CAB and the District did not err when they determined that the
Charter School’s charter included the Charter Application by incorporation.
                               Charter School By-Laws
             The Charter School next avers that CAB and the District erred when
they determined that the Charter School materially deviated from its charter because
the Charter School was specifically permitted by its approved by-laws to make
changes to its operations, and the Charter School’s Board of Trustees is statutorily
responsible for such decisions. Section 1716-A(a) of the CSL provides:

             The board of trustees of a charter school shall have the
             authority to decide matters related to the operation of the

                                           16
            school, including, but not limited to, budgeting, curriculum
            and operating procedures, subject to the school’s charter.
            The board shall have the authority to employ, discharge and
            contract with necessary professional and nonprofessional
            employe[e]s subject to the school’s charter and the
            provisions of this article.

24 P.S. § 17-1716-A(a) (emphasis added). This Court has held: “A prerequisite to the
grant of a charter is the organization of the school as a nonprofit corporation
governed by a board of trustees that possesses authority to decide matters relating to
the operation of the school, subject to the school’s charter.” McKeesport Area Sch.
Dist. v. Propel Charter Sch. McKeesport, 888 A.2d 912, 921 (Pa. Cmwlth. 2005)
(emphasis added) (quoting Mosaica Acad. Charter Sch. v. Dep’t of Educ., 813 A.2d
813, 818 (Pa. 2002) (citing Section 1716-A(a) of the CSL, 24 P.S. § 17-1716-A(a))).
Moreover, the terms listed in the charter application are determined without input of
the board of trustees. West Chester Area Sch. Dist. v. Collegium Charter Sch., 812
A.2d 1172 (Pa. 2002). Consequently, notwithstanding whether the Charter School
was specifically permitted by its approved by-laws to change its operations and/or
whether its Board of Trustees are statutorily responsible for such decisions, the Board
of Trustees is constrained by the Charter School’s charter. As astutely explained in
CAB’s decision which we adopt:
            [W]hile a charter school’s board of trustees unquestionably
            possesses the authority to decide matters related to the
            operation of the school, that authority is subject to the
            school’s charter. In review then, the chartering district
            grants the charter based on what is in the charter
            application. The contents of the charter application are
            incorporated by operation of law into the charter. Any
            changes to the charter are subject to the approval of the
            chartering district. And finally, the chartering school
            district has accountability over the charter school.

            It follows that the charter school’s board of trustees may
            make changes to the charter, but any changes are subject to
            the approval of the chartering school district, and if changes

                                          17
             are made without amending the charter, the charter school is
             subject to closure under [S]ection 1729-A(a)(1) of the CSL,
             24 P.S. § 17-1729-A(a)(1). Therefore, [the Charter School]
             does not, as it argues, have unfettered authority to make
             changes to its operations if those changes require deviation
             from the charter and the charter application incorporated
             into the charter by operation of law.

CAB(2) Dec. at 36-37 (citations omitted). Thus, we hold that any unilateral change
the Board of Trustees made to the Charter School’s operations not in accordance with
the charter or the Charter Application which is incorporated into the charter as a
matter of law constituted a deviation from the charter. Accordingly, CAB and the
District did not err when they determined that the Charter School materially deviated
from its charter.
                               Student Performance
             The Charter School next maintains that CAB and the District erred when
they determined that the Charter School failed to meet the student performance
requirements. Specifically, the Charter School argues the fact that the Charter School
did not make adequate yearly progress (AYP) for the 2009-2010 or 2010-2011 school
years does not demonstrate that it violated the student performance standards.
             Section 1729-A(a)(2) of the CSL authorizes a school district to revoke or
not renew a charter based on a school’s

            [f]ailure to meet the requirements for student performance
            set forth in 22 Pa. Code Ch. 5 (relating to curriculum) or
            subsequent regulations promulgated to replace 22 Pa.[]Code
            Ch. 5 or failure to meet any performance standard set
            forth in the written charter signed pursuant to [S]ection
            1716-A.
24 P.S § 17-1729-A(a)(2) (emphasis added).
             Proficiency as measured by PSSA test scores is . . . a . . .
             student performance requirement. A consistently low
             percentage of students scoring proficient or better on
             the PSSA constitutes a failure to satisfy . . . student

                                          18
              performance requirements and is a valid ground for
              non[-]renewal of a school’s charter under Section 1729–
              A(a)(2) of the [CSL] where the charter school’s proficiency
              rates are lower than those of its school district’s schools as a
              whole and no clear pattern of significant improvement in its
              PSSA results is shown.

New Hope Acad. Charter Sch. v. Sch. Dist. of the City of York (New Hope Acad.), 89
A.3d 731, 737 (Pa. Cmwlth. 2014) (citations and footnote omitted; emphasis added).
The Charter Application represented that “[a]cademic achievement will increase for
all students in the areas of math, science, reading and social studies”; and its annual
measurable goal was that 85% of students who attend the Charter School for five
years will achieve grade level proficiency as measured by the state assessments in
math, science, reading and social studies. R.R. at 615a.
              Here, it is undisputed that based on 7 years of PSSA scores, the Charter
School did not meet AYP for 6 of those years. Specifically CAB found: “With regard
to [m]ath, [the Charter School] failed to make AYP in the past five consecutive
school years . . .; [the Charter School] has only made AYP in [m]ath once since the
2005-2006 school year, in school year 2006-2007.” CAB(2) Dec. at 14, FOF 62.
“With regard to [r]eading, [the Charter School] failed to make AYP in the past five
consecutive school years . . .; [the Charter School] has made AYP in [r]eading just
once since the 2005-2006 school year, in school year[] 2006-2007.” CAB(2) Dec. at
16, FOF 64.
              In addition, the Charter School did not achieve its stated measurable goal
that 85% of students who attend the Charter School for five years will achieve grade-
level proficiency as measured by the state assessments in math, science, reading and
social studies. As of 2010 (i.e., the last year before the underlying administrative
hearings began), there were 41 students who attended the Charter School for five or
more years. Of these students, only 46.3% were proficient or advanced in math, and
only 31.7% were proficient or advanced in reading, which was less than half of the

                                            19
85% annual measurable goal the Charter School set for itself in its Charter
Application. See CAB(2) Dec. at 54. The Charter School asserts that a goal is an
objective, not a mandate. However, a charter school is statutorily required to include
in its charter application: its “mission and education goals, the curriculum to be
offered and the methods of assessing whether students are meeting educational
goals.” 24 P.S. § 17-1729-A. Further, the record evidence demonstrates the Charter
School’s “consistently low percentage of students scoring proficient or better . . .
[which] is a valid ground . . .” for revocation. New Hope Acad., 89 A.3d at 737
(citing Section 1729-A(a)(2) of the CSL). Moreover, an essential CSL purpose is to
“[i]mprove pupil learning.” 24 P.S. § 17-1702-A. Accordingly, CAB and the District
did not err when they found that the Charter School failed to meet student
performance requirements.
                               Disparate Treatment
            The Charter School further contends that it has suffered disparate
treatment because in In Re: Sugar Valley Rural Charter School (CAB 2004-04), CAB
renewed Sugar Valley Rural Charter School’s (Sugar Valley) charter even though
Sugar Valley did not meet its AYP over the same time period, and failed to meet its
goals. The District rejoins that the Charter School waived this argument because it
did not raise it before CAB and therefore CAB did not have an opportunity to address
it.
            Similar to the estoppel issue, there is no indication that the disparate
treatment issue was presented to CAB, and the Charter School has failed to direct us
to any portion of the record that would show otherwise. Therefore, this issue has
been waived. Spotz. Nonetheless, Sugar Valley is inapposite because Sugar Valley
had only two years of fallen PSSA test scores, but no evidence that it failed to make
AYP. Here, as stated above, there were seven years of PSSA test scores, and the


                                         20
Charter School failed to make AYP for the past five consecutive years in math and
reading. See CAB(2) Dec. at 14, 15.
             The Charter School also declares that since CAB concluded in Sugar
Valley that a school’s inability to achieve its goal does not establish a ground for
revocation, the Charter School’s failure to meet its goal is not a ground for
revocation. However, in Sugar Valley:
             The record [did] not evidence that Sugar Valley ha[d] failed
             to meet the applicable student performance requirement
             established by the State Board of Education . . . . It [did]
             evidence that test scores ha[d] fallen and that, if they are not
             improved, Sugar Valley will most likely violate the
             standards . . . . Until the standards are actually violated, test
             scores cannot be the basis of a finding that the act has been
             violated.

Sugar Valley, Slip Op. at 9. As stated by CAB in the instant case: “Therein lies the
distinction that makes Sugar Valley inapplicable. . . . In failing to make AYP, [the
Charter School] violated [s]tate standards.” CAB(2) Dec. at 56. Because the Charter
School is not similarly situated to Sugar Valley, the Charter School’s reliance on the
decision therein to support its claim is misplaced.
                                  Fiscal Management
             The Charter School claims that CAB and the District erred when they
determined that the Charter School failed to meet generally-accepted standards of
fiscal management. Section 1729-A(a)(3) of the CSL provides that a school district
may revoke or not renew a charter for “[f]ailure to meet generally[-]accepted
standards of fiscal management or audit requirements.” 24 P.S. § 17-1729-A(a)(3).
The Charter Application stated that the Charter School will comply with state child
accounting procedures and “will ensure through its Student Information System that




                                            21
enrollment figures and attendance will be reported accurately and in accordance with
[the] Pennsylvania Public School Code [(School Code of 1949)].”14 R.R. at 652a.
             However, the record evidence reveals that the Charter School provided
inaccurate enrollment information as the Charter School identified four students in
the roster it provided to the District and in its monthly billings as special education
students, and billed the District for the increased per pupil allotment for these special
education students during periods when the students were no longer classified as
students with disabilities. Consequently, the Charter School overbilled the District
for these students for years, resulting in the District overpaying the Charter School
$110,398.54. The Charter School characterizes these overpayments as a “minor
misreporting” and “the parties’ mutual failure[.]” Charter School First Br. at 56, 57.
However, it was the Charter School’s obligation to periodically update the individual
education plans of special education students and provide that updated information to
the District. See 22 Pa. Code § 14.104(i).
             Moreover, the Charter School’s Charter Application stated that “[a]n
annual school audit shall be conducted according to the requirements of Article 24 of
the School Code of 1949.         Charter School Board of Trustees shall follow the
requirement set forth for School Boards in this section.” R.R. at 651a. In its Charter
Application, the Charter School certified that it would “comply with the same Federal
and State audit requirements as do other elementary and secondary schools in the
State[.]”   R.R. at 670a. The PDE issues a Manual of Accounting and Financial
Reporting for Pennsylvania Public Schools, which requires, among other things, that
a charter school file an annual audit with PDE no later than December 31 after the
fiscal year end if the charter school expends less than $500,000 in federal funds.
Nevertheless, the Charter School did not comply with this requirement for fiscal

      14
        Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-
101 - 27-2702.
                                             22
years ending June 30, 2007, June 30, 2008, June 30, 2009, and June 30, 2010, the
audits for which were dated May 2, 2008, October 17, 2009, and October 27, 2010,
respectively. The audit for the fiscal year ending June 30, 2010, had not yet been
filed as of the July 7, 2011 hearing date. There is no record evidence indicating why
the Charter School filed its audits late. As CAB explained in its decision: “[T]he
reason for requiring the regular filing of financial audits by a charter school is to
promote accountability and to enable the chartering school district, which has
oversight of the charter schools it authorizes, to identify possible financial
mismanagement before it becomes a serious problem[.]” CAB(2) Dec. at 60.
               The Charter School failed to meet generally-accepted standards of fiscal
management through its consistent failure to provide the District with accurate
enrollment data, resulting in the District overpaying the Charter School $110,398.54,
and by its failure to file timely financial audits. Accordingly, CAB and the District
did not err when they determined that the Charter School failed to meet generally-
accepted standards of fiscal management.15
                                          Due Process
               The Charter School asserts that the Board violated the Charter School’s
due process rights by unilaterally appointing Prendergast as the hearing officer
because he previously represented the District when it attempted to revoke the
Charter School’s charter.          In addition, the Charter School alleges that in the
prosecution of the revocation/non-renewal of the Charter School’s charter,
Prendergast allowed the District to litigate this matter without identifying witnesses
before they were called, without any notice of exhibits that would be introduced and

       15
           This Court notes that although CAB found the enrollment data to be a violation, it did not
find it to be “a material violation of such standards.” CAB(2) Dec. at 58. However, CAB found the
failure to file timely audits “a material [violation] and particularly when aggregated with the other
violations found above, justifie[d] the termination of [the Charter School’s] charter.” CAB(2) Dec.
at 60.
                                                 23
without any ability for the Charter School to engage in meaningful due process.
Finally, the Charter School avers that the Board violated the Sunshine Act16 by
deliberating and voting on the revocation of the Charter School’s charter in executive
session and not in public.
                In regard to Prendergast’s alleged impartiality, the Charter School argues
that Prendergast had a conflict of interest which should have disqualified him from
hearing the matter. The Charter School asserts in its brief that “Prendergast was
questioned about previous representations of the District or potential conflicts of
interest and he neglected to disclose at any time he was counsel to the District during
its first revocation attempt against [the Charter School].” Charter School First Br. at
63. However, there is nothing in the record to substantiate the Charter School’s
position that Prendergast was questioned, nor does the Charter School cite any part of
the record to support that claim. Review of the record indicates that on April 19,
2011, at the beginning of the first hearing, the Charter School’s counsel17 stated: “It is
also our position that there is no authority under the [CSL] with regards for [sic] a
hearing officer, with all due respect Mr. Prendergast, we ask that the record reflect
that we object that the proceedings go forward on that basis. That’s all.” R.R. at
1655a.
                Notwithstanding,
                we cannot ignore the fact that local school boards have a
                significant interest in whether charters are granted; indeed
                the legislative history contains frequent references to the
                bias of local school boards against charter schools. Thus, . .
                . there is a need for a neutral fact finder at some stage of the
                proceedings – one which will consider the findings made by
                the local school board but which will remain free to
                ‘disagree[] with those findings’ and draw its own
                conclusions after ‘due consideration’ of those findings.


      16
           65 Pa.C.S. §§ 701-716.
      17
           Brian H. Leinhauser, Esquire.
                                              24
W. Chester Area Sch. Dist. v. Collegium Charter Sch., 760 A.2d 452, 461 (Pa.
Cmwlth. 2000) (citation and footnote omitted), aff’d, 812 A.2d 1172 (Pa. 2002).
CAB as “the ultimate fact finder” is that neutral fact finder. Id. Thus, any potential
bias was cured when CAB reviewed the Board’s revocation decision.
            With respect to the Charter School’s contention that it was not provided
discovery before the hearing, “[a]s a general rule, discovery as provided by the rules
of civil procedure [is] not available in administrative proceedings.” Pa. Bankers
Ass’n v. Pa. Dep’t of Banking, 981 A.2d 975, 997 n.18 (Pa. Cmwlth. 2009).
            Further, Section 1729-A(c) of the CSL provides:

             Any notice of revocation or nonrenewal of a charter given
             by the local board of school directors of a school district
             shall state the grounds for such action with reasonable
             specificity and give reasonable notice to the governing
             board of the charter school of the date on which a public
             hearing concerning the revocation or nonrenewal will be
             held. The local board of school directors shall conduct such
             hearing, present evidence in support of the grounds for
             revocation or non[-]renewal stated in its notice and give the
             charter school reasonable opportunity to offer testimony
             before taking final action. Formal action revoking or not
             renewing a charter shall be taken by the local board of
             school directors at a public meeting pursuant to the act of
             July 3, 1986 (P.L. 388, No. 84), known as the ‘Sunshine
             Act,’ after the public has had thirty (30) days to provide
             comments to the board. . . .
24 P.S. § 17-1729-A(c). However,
            [l]ike many Commonwealth agencies, which serve as
            ultimate fact-finding tribunals, the [Board] has broad
            discretion to delegate to hearing officers the task of
            conducting hearings. Thus, we hold that the Board fully
            complied with the requirements of due process by: (1)
            appointing a hearing officer to hold a hearing at which [the
            Charter School] was represented by counsel and had the
            opportunity to cross-examine witnesses; (2) reviewing the
            officer’s findings of facts, conclusions of law and
            recommendation; and (3) making an independent ruling
            based on the entire record.
                                          25
Lewis v. Sch. Dist. of Phila., 690 A.2d 814, 817 (Pa. Cmwlth. 1997) (footnote
omitted).   Accordingly, we conclude that the Charter School was afforded due
process.
             Finally, an

             alleged violation of the Sunshine [Act] is not properly
             reviewed by this Court in this procedural posture. The
             courts of common pleas have original jurisdiction over open
             meeting challenges for local agencies.
             The Charter School’s remedy for a Sunshine [Act] violation
             is statutorily limited as follows: ‘a legal challenge under
             this chapter shall be filed within 30 days from the date of a
             meeting which is open, or within 30 days from the
             discovery of any action that occurred at a meeting which
             was not open at which this chapter was violated.’ Section
             713 [of the Sunshine Act] also sets a one year statute of
             limitations in the event a meeting was not open.

Pocono Mountain Charter Sch., Inc. v. Pocono Mountain Sch. Dist., 88 A.3d 275,
286 (Pa. Cmwlth. 2014) (citations omitted). Because this Court is not the proper
forum to review the alleged Sunshine Act violation, we have no jurisdiction to
resolve this issue.
             For all of the above reasons, CAB’s June 18, 2012 order dismissing the
District’s motion to quash the Charter School’s appeal to CAB and CAB’s August 2,
2013 order affirming the decision of the Board to revoke the Charter School’s charter
are affirmed.


                                         ___________________________
                                         ANNE E. COVEY, Judge




                                          26
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Graystone Academy Charter School,       :
                      Petitioner        :
                                        :
                  v.                    :
                                        :
Coatesville Area School District,       :   No. 1336 C.D. 2013
                        Respondent      :

Coatesville Area School District,       :
                        Petitioner      :
                                        :
                  v.                    :
                                        :
Graystone Academy Charter School,       :   No. 1402 C.D. 2013
                      Respondent        :


                                     ORDER


            AND NOW, this 27th day of August, 2014, the State Charter School
Appeal Board’s (CAB) June 18, 2012 order dismissing the Coatesville Area School
District’s (District) motion to quash the Graystone Academy Charter School’s
(Charter School) appeal to CAB, and CAB’s August 2, 2013 order affirming the
decision of the District’s Board of Directors to revoke the Charter School’s charter
are affirmed.


                                            ___________________________
                                            ANNE E. COVEY, Judge
