                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

KIPP Philadelphia Charter Schools,     :
                        Petitioner     :
                                       :
                     v.                :
                                       :
Commonwealth of Pennsylvania,          :
Department of Education; and Pedro A. :
Rivera, in his official capacity as    :
Secretary of Education,                :          No. 52 M.D. 2016
                           Respondents :          Argued: December 14, 2016


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge


OPINION BY
JUDGE COVEY                                       FILED: May 1, 2017

               Before the Court is KIPP Philadelphia Charter Schools’ (Charter
Schools)1 Application for Summary Relief (Application) seeking payment from the


       1
         KIPP Philadelphia Charter Schools include: KIPP Philadelphia Charter School, KIPP
Philadelphia Elementary Charter School, KIPP Dubois Collegiate Academy and KIPP West
Philadelphia Preparatory Charter School. See Petition for Review in the Nature of an Appeal and a
Complaint for Direct Payment, Mandamus, Declaratory and Injunctive Relief at 4.
       In the Charter Schools’ Answer to Respondents’ Preliminary Objections, the Charter
Schools explained:

              As of the date of the redirection request, KIPP Philadelphia
              Elementary Academy, KIPP Dubois Collegiate Academy, and KIPP
              Philadelphia Charter School were under the same charter and
              management. Together with KIPP West Philadelphia Preparatory
              Charter School (which has a separate charter but is under the same
              management), these schools are collectively referred to as the KIPP
              Philadelphia [Charter] Schools.
Commonwealth of Pennsylvania, Department of Education (Department) and Pedro
A. Rivera, in his official capacity as Secretary of Education (Secretary) (collectively,
Respondents) of reconciliation monies for the 2014-2015 school year pursuant to
Section 1725-A of the Charter School Law (CSL).2                Also before the Court are
Respondent’s preliminary objections (Preliminary Objections) to the Charter Schools’
Petition for Review in the Nature of an Appeal and a Complaint for Direct Payment,
Mandamus, Declaratory and Injunctive Relief (Complaint).


                                   I. Background
              “Pursuant to [S]ection 1725-A of the . . . CSL . . . , a school district that
has any resident students enrolled in a charter school must pay the charter school for
each enrolled student.” Waslow v. Pa. Dep’t of Educ., 984 A.2d 575, 576 (Pa.
Cmwlth. 2009). Section 1725-A(a)(5) of the CSL requires that “[p]ayments shall be
made to the charter school in twelve (12) equal monthly payments, by the fifth day of
each month, within the operating school year.” 24 P.S. § 17-1725-A(a)(5). Under
former Governor Thomas W. Corbett’s administration,3 the Department permitted
charter schools to conduct end-of-year reconciliations and then seek to have any
underfunded amounts withheld by Respondents from school districts’ state subsidies
pursuant to Section 1725-A(a)(5) of the CSL, which provides:

              If a school district fails to make a payment to a charter
              school as prescribed in this clause, the [S]ecretary shall

Charter Schools’ Ans. to Prelim. Obj. at 1-2 (footnote omitted). “For the 2014-2015 school year,
the charter for ‘KIPP Philadelphia Charter School’ included three schools: KIPP Philadelphia
Elementary Academy, KIPP Philadelphia Charter School, and KIPP Dubois Collegiate Academy.
Subsequently, the structure changed.” Id. at 1 n.1.
        2
          Act of June 19, 1997, P.L. 225, as amended, 24 P.S. § 17-1725-A. The CSL amended
Article XVII-A of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24
P.S. §§ 1-101 – 27-2702.
        3
          Thomas W. Corbett served as Pennsylvania Governor from January 18, 2011 to January
20, 2015.
                                               2
                deduct the estimated amount, as documented by the charter
                school, from any and all [s]tate payments made to the
                district after receipt of documentation from the charter
                school.

24 P.S. § 17-1725-A(a)(5).4
                On July 14, 2015, the Charter Schools submitted a reconciliation report
to the Department for $425,658.74 they claimed they were owed by the School
District of Philadelphia (District) for the 2014-2015 school year. See Complaint Ex.
A. On January 8, 2016, the Department notified Pennsylvania charter schools and
school districts (January 2016 Notice):

       4
           Section 1725-A(a)(6) of the CSL states:

                Within thirty (30) days after the [S]ecretary makes the deduction
                described in [Section 1725-A(a)](5) [of the CSL], a school district
                may notify the [S]ecretary that the deduction made from [s]tate
                payments to the district under this subsection is inaccurate. The
                [S]ecretary shall provide the school district with an opportunity to be
                heard concerning whether the charter school documented that its
                students were enrolled in the charter school, the period of time during
                which each student was enrolled, the school district of residence of
                each student and whether the amounts deducted from the school
                district were accurate.
24 P.S. § 17-1725-A(a)(6).
        The Act of July 13, 2016, P.L. 716 (Act 86), amended Section 1725-A(a)(5) of the CSL by
adding:

                No later than October 1 of each year, a charter school shall submit to
                the school district of residence of each student final documentation of
                payment to be made based on the average daily membership for the
                students enrolled in the charter school from the school district for the
                previous school year. If a school district fails to make payment to the
                charter school, the [S]ecretary shall deduct and pay the amount as
                documented by the charter school from any and all [s]tate payments
                made to the [school] district after receipt of documentation from the
                charter school from the appropriations for the fiscal year in which the
                final documentation of payment was submitted to the school district
                of residence.
24 P.S. § 17-1725-A(a)(5).


                                                     3
              In 2012, the Pennsylvania Commonwealth Court [in
              Chester Community Charter School v. Pennsylvania
              Department of Education, 44 A.3d 715 . . . [(Pa. Cmwlth.
              2012) (Chester II)]] determined that the mandatory
              withholding requirements of [S]ection 1725-A(a)(5) of the
              [CSL] apply only to claims on current year funding. The
              prior administration delayed the implementation of the
              [C]ourt’s decision.
              [The Department] cannot contravene the law, and
              therefore will cease the end-of-year reconciliation
              process. Instead, charter schools may work directly with
              resident school districts to reconcile each school year’s
              tuition payments based on the number of days that each
              student was enrolled in the charter school.
              Charter schools may continue to submit invoices to [the
              Department] for deduction of estimated amounts related to
              current school year enrollment. However, pursuant to the
              law, charter schools must first provide resident school
              districts with an invoice and must have provided the
              resident school district with sufficient time and opportunity
              to make a payment before requesting subsidy redirection
              from [the Department]. Therefore, [the Department] will
              only process charter school withholding requests that
              relate to the enrollment of students in the current school
              year.

Complaint Ex. B (emphasis added). Effectively, the Department declared it would
only redirect delinquent school districts’ funding under Section 1725-A(a)(5) of the
CSL during the current fiscal year and a school district’s failure to pay outstanding
prior-year balances would be a matter for the charter schools and the school districts
to resolve.
              On January 8, 2016, the Charter Schools made an email inquiry to the
Department regarding the status of its fund redirection request. By January 20, 2016
email, the Department notified the Charter Schools that the Department would not
pay the Charter Schools’ 2014-2015 reconciliation. See Complaint Ex. C.




                                           4
            On February 8, 2016, the Charter Schools filed the Complaint seeking:
(1) an order directing the Department and/or the Secretary to pay the Charter Schools
$425,658.74 owed by the District for the 2014-2015 school year (Count I); (2) a
mandamus order directing the Secretary to withhold the District’s state funds until the
Charter Schools are paid in full, redirect the Charter Schools’ overdue payments,
make all outstanding payments to the Charter Schools and pay the Charter Schools all
costs and attorney’s fees (Count II); (3) a declaration from this Court that the
Department is in violation of the CSL’s mandatory fund withholding provisions, that
Chester II does not prevent its 2014-2015 school year claims, that the Department’s
January 8, 2016 statement that Chester II precludes it from withholding the Charter
Schools’ funds is incorrect, that the Department must withhold the funds as mandated
by the CSL, and that the Charter Schools are entitled to costs and attorney’s fees
(Count III); (4) a permanent injunction from Respondents delaying or refusing the
Charter Schools’ withholding requests and from refusing to make future
reconciliation payments (Count IV); and, (5) to the extent that the January 2016
Notice is the Department’s final determination of the Charter Schools’ rights to funds
for the 2014-2015 school year, an appeal therefrom (Count V).
            On March 7, 2016, the Department issued a letter to charter schools,
including the Charter Schools (March 2016 Notice), clarifying:

            On January 8, 2016, the [Department] notified charter
            schools and school districts that it would no longer be
            performing an end-of-year reconciliation process.
            However, prior to issuing this notification, the Department
            received documentation from charter schools for the 2014-
            2015 school year. As a result, the Department is providing
            school districts with the information received prior to
            January 8, 2016. One or more charter schools have
            prepared the enclosed report(s) related to payments made
            and the amount claimed to be due for students enrolled
            during the 2014-2015 school year.


                                          5
              As indicated in its previous communication, the Department
              will not be withholding funds related to the documentation
              submitted by charter schools because there are no 2014-
              [20]15 funds from which to withhold. This matter will
              proceed to an administrative hearing as prescribed by
              [Chester II].
              As a result of the record established through the
              administrative hearing process, the Secretary will then issue
              a decision. Since there are no 2014-[20]15 funds from
              which to withhold, the manner in which funds are paid
              based on the Secretary’s decision will be decided by the
              respective charter school and school district.

Application Ex. A (emphasis added).
              On March 14, 2016, Respondents filed their Preliminary Objections to
the Complaint arguing that: (1) the Charter Schools failed to exhaust their statutory
remedies since the matter has not been submitted to a hearing (Objection I); (2) this
Court lacks jurisdiction because the January 2016 Notice was not a final, appealable
order (Objection II); (3) not all of the Charter Schools have a direct interest and, thus,
lack standing (Objection III); (4) Complaint Counts I through IV fail to state claims
upon which relief may be granted because, inter alia, Respondents have sovereign
immunity (Objections IV-IX); and, (5) the Charter Schools failed to join necessary
parties (Objection V).
              On April 13, 2016, the Charter Schools filed the Application seeking
judgment in its favor and against Respondents because Respondents have denied its
reconciliation request for the 2014-2015 school year in violation of Section 1725-
A(a)(5) of the CSL.5 On April 14, 2016, the Department notified the Charter Schools
and the District that there were no funds from which payments could be made, and
the parties were entitled to a hearing. See Respondents’ Ans. to Application Ex. 1.


       5
         On April 13, 2016, the Charter Schools also filed preliminary objections to Respondents’
preliminary objections which were overruled by this Court. See May 5, 2016 order and
Respondents’ May 10, 2016 verification filing.
                                               6
On April 27, 2016, Respondents filed an answer to the Application, in which they
claimed that withholding can only be made against available funds appropriated for
the subject school year, and that Respondents are not obligated to pay anything to the
Charter Schools pending the hearing process.


                                II. Summary Relief

            [Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.)]
            1532(b) provides that ‘[a]t any time after the filing of a
            petition for review in an . . . original jurisdiction matter the
            court may on application enter judgment if the right of the
            applicant thereto is clear.’ Pa.R.A.P. 1532(b). ‘An
            application for summary relief is properly evaluated
            according to the standards for summary judgment.’ Myers
            v. Commonwealth, 128 A.3d 846, 849 (Pa. Cmwlth. 2015).
            That is, in ruling on a[n application] for summary relief, the
            evidence must be viewed in the light most favorable to
            the non-moving party and the court may enter judgment
            only if: (1) there are no genuine issues of material fact;
            and (2) the right to relief is clear as a matter of law.
            N[w.] Youth Serv[s.], Inc. v. Dep[’t] of Pub[.] Welfare, 1
            A.3d 988, 990 n.1 (Pa. Cmwlth. 2010).

Flagg v. Int’l Union, Sec., Police, Fire Prof’ls of Am., Local 506, 146 A.3d 300, 305
(Pa. Cmwlth. 2016) (emphasis added).


A. Genuine Issues of Material Fact
            At December 14, 2016 oral argument before this Court, counsel for the
Charter Schools represented, and Respondents acknowledged, that under Governor
Corbett’s administration, the Department’s practice was to allow charter schools to
conduct end-of-year reconciliations and, based upon the amounts charter schools
documented they were owed, the Department would withhold state funding from
delinquent school districts in the relevant amounts in accordance with Section 1725-
A(a)(5) of the CSL. The Department deducted funds owed from prior-year budgets

                                           7
from future school district basic education subsidies. See Sch. Dist. of Phila. v. Dep’t
of Educ., 41 A.3d 222, 225 (Pa Cmwlth. 2012), rev’d on other grounds, 92 A.3d 746
(Pa. 2014) (the Department withheld past due amounts “from the [school d]istrict’s
next Basic Education Subsidy”).
               Notwithstanding this Court’s 2012 Chester II decision, the Department
continued this reconciliation practice for the 2012-2013 and 2013-2014 school years.
The Charter Schools made its reconciliation request with supporting documentation
just days after the 2014-2015 school year ended. At that time, the Charter Schools
were not aware of any change to the Department’s end-of-year reconciliation
procedure. The Charter Schools’ first notice of the process modification was the
Department’s January 2016 Notice. Further, the Charter Schools had no notice that
the matter was being submitted to a hearing until it received the Department’s March
2016 Notice. However, to date, the Department has not scheduled or conducted a
hearing. Moreover, the Department has not withheld the funds the Charter Schools
requested in accordance with Section 1725-A(a)(5) of the CSL,6 nor has the District
disputed the requested reconciliation amounts.7



       6
          The July 13, 2016 amendment to Section 1725-A(a)(5) of the CSL reflects the General
Assembly’s intent that Respondents should not be involved in the reconciliation process unless and
until a dispute arises between the charter school and a school district. See Act of July 13, 2016, P.L.
716 (Act 86). Notably, however, in sharp contrast to Respondents’ attempts to limit reconciliation
to the current school year, the General Assembly memorialized Respondents’ historical practice and
declared in Act 86 that a charter school has until October 1st following the applicable school year to
submit final reconciliation documents to a school district and, if the school district fails to pay the
charter school, “the [S]ecretary shall deduct and pay” the charter school from the school district’s
subsidies “for the fiscal year in which the final documentation of payment was submitted to the
school district . . . .” 24 P.S. § 17-1725-A(a)(5).
        7
           We acknowledge Respondents’ claim that they “are without sufficient information to
determine the truth or veracity of what amount, if any, was owed by the [District] to [the Charter
Schools.]” Respondents’ Ans. to Application at 2-3. However, since Respondents have yet to
withhold the funds, there is nothing for the District to dispute. See Section 1725-A(a)(6) of the
CSL.
                                                  8
               Based on the foregoing, there are no genuine issues of material fact that
would preclude this Court from deciding the Charter Schools’ Application.


B. Clear Right to Relief
               The Charter Schools’ Complaint seeks declaratory, mandamus and
injunctive relief against Respondents.8


               1.     Declaratory Judgment
               The Charter Schools aver that Respondents are in violation of the CSL’s
mandatory fund withholding provisions, that Chester II does not prevent its 2014-


       8
           Respondents contend that “this Court cannot review this matter in its original jurisdiction
nor in its appellate jurisdiction,” since its original jurisdiction is limited to actions outside its
appellate jurisdiction, and the CSL affords this Court appellate jurisdiction only after the Charter
Schools fully exhaust their administrative remedies (i.e., receives a final order issued by a hearing
examiner after a hearing). Respondents’ Br. in Support of Preliminary Objections at 8; see also
Respondents’ Br. in Support of Preliminary Objections at 7-8.
         Indeed, under Section 761(a)(1) of the Administrative Agency Law, 42 Pa.C.S. § 761(a)(1),
this Court has original jurisdiction to decide challenges to the Department’s actions or
inactions. Moreover, Section 702 of the Administrative Agency Law specifically provides that
“[a]ny person aggrieved by an adjudication of a Commonwealth agency who has a direct interest
in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction
of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).” 2 Pa.C.S.
§ 702 (emphasis added). Adjudications include “[a]ny final order, decree, decision, determination
or ruling by an agency affecting personal or 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 (emphasis added). However, “[w]hen an agency’s decision or refusal to
act leaves a complainant with no other forum in which to assert his or her rights, privileges, or
immunities, the agency’s act is an adjudication.” Ruiz v. Attorney Gen. of Pa., 789 A.2d 372, 375
(Pa. Cmwlth. 2001) (emphasis added).
         Were we to adopt Respondents’ position that this Court lacks any jurisdiction whatsoever to
hear this matter, the Charter Schools’ causes of action would be hamstrung for as long as
Respondents choose not to act. Because the Department’s January 2016 Notice and its failure to
conduct a hearing pursuant to the CSL have left the Charter Schools without a means to assert their
statutory rights, this Court has jurisdiction over their claims for declaratory, mandamus and
injunctive relief.


                                                  9
2015 school year claims, and that the Department’s reliance on the January 2016
Notice that Chester II precludes it from withholding the Charter Schools’ funds is
incorrect. The Charter Schools also seek

             an order from this Court that:
             (1) [Respondents are] in violation of [their] mandatory
             obligations under the CSL by failing to withhold the funds
             sought by [the Charter Schools];
             (2) this Court’s decision in Chester II does not prevent
             Respondents from withholding state payments where the
             claim was made after the requisite school year;
             (3) [Respondents’] statement in the January 8, 2016 email
             that the CSL or Chester II preclude [them] from
             withholding the funds sought by [the Charter Schools] is
             incorrect;
             (4) [Respondents] must withhold the funds sought by [the
             Charter Schools] and pay them to [the Charter Schools] in
             order for Respondents to be in compliance with their
             mandatory obligations under the CSL[.]

Complaint at 20. The Charter Schools also request “costs, attorney’s fees, and such
other relief as the Court shall deem appropriate for Respondents’ failure to comply
with the CSL.” Complaint at 20.
             Respondents claim that Section 1725-A(a)(5) of the CSL requires only
that Respondents deduct and withhold any and all of the District’s state payments, but
does not obligate Respondents to pay anything to the Charter Schools pending the
hearing process.     Moreover, based on Chester II, withholding for purported
underfunding “can only be made against available funds appropriated for that school
year.” Respondents’ Ans. to Application at 5.
             Section 7532 of the Declaratory Judgments Act provides: “Courts of
record, within their respective jurisdictions, shall have power to declare rights, status,
and other legal relations whether or not further relief is or could be claimed.” 42

                                           10
Pa.C.S. § 7532. Section 7541 of the Declaratory Judgments Act states that “[i]ts
purpose is to settle and to afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations, and is to be liberally construed and
administered.” 42 Pa.C.S. § 7541.
             However, declaratory judgment is appropriate only where there exists an
actual controversy. Allegheny Cnty. Constables Ass’n, Inc. v. O’Malley, 528 A.2d
716 (Pa. Cmwlth. 1987).       “An actual controversy exists when litigation is both
imminent and inevitable and the declaration sought will practically help to end the
controversy between the parties.” Chester Cmty. Charter Sch. v. Dep’t of Educ., 996
A.2d 68, 80 (Pa. Cmwlth. 2010) (Chester I). “Granting or denying a petition for a
declaratory judgment is committed to the sound discretion of a court of original
jurisdiction.” GTECH Corp. v. Dep’t of Revenue, 965 A.2d 1276, 1285 (Pa. Cmwlth.
2009).
             The General Assembly mandated in Section 1725-A(a)(5) of the CSL
that “[i]f a school district fails to make payment to the charter school, the [S]ecretary
shall deduct and pay the amount as documented by the charter school from any
and all [s]tate payments made to the [school] district after receipt of
documentation from the charter school[.]” 24 P.S. § 17-1725-A(a)(5) (bold and
underline emphasis added). This Court has declared that “[t]here is no air in Section
1725-A(a)(5) [of the CSL]. . . . There is no discretion to exercise . . . .” Chester I,
996 A.2d at 77-78 (emphasis added). Rather, “[t]he Department has a mandatory,
non-discretionary duty to withhold subsidies to a school district based upon the
estimated amount documented by the charter school.” Id. at 78 (emphasis added).
Therefore,

             [u]nder [Section 1725-A(a)(5) of the CSL], if a school
             district does not make its required statutory payments, the
             Secretary, upon notification by the affected charter school,
             shall deduct the estimated amount as documented by the
                                           11
            charter school from any and all state payments made to the
            school district. If a school district refuses to transfer funds
            to a charter school, the Secretary has no discretion to
            decline to withhold the estimated amount of payment from
            the charter school. Thus, the Secretary has a mandatory,
            non-discretionary obligation to deduct the estimated amount
            of payment due a charter school by a school district upon
            submission of supporting documentation by the charter
            school. [Under Section 1725-A(a)(6) of the CSL a] school
            district has 30 days to challenge the accuracy of the
            estimated amount withheld by the Secretary and to require
            the Secretary to provide the school district with an
            opportunity to be heard on the estimated deduction.
Chester II, 44 A.3d at 719-20.
            Despite this Court’s acknowledgement in Chester II that Section 1725-
A(a) of the CSL represents the Charter Schools’ exclusive remedy against the District
for the underfunded amounts, and that the Charter Schools submitted a reconciliation
request and supporting documentation, the Secretary has not deducted and
withheld or paid the outstanding funds to the Charter Schools, nor scheduled a
hearing. Under the circumstances, this matter presents imminent and inevitable
litigation that a declaration from this Court would resolve for the Charter Schools
and, perhaps, the limited number of similarly-situated charter schools. Chester I.
            Respondents assert that the Secretary may only deduct, withhold and pay
monies allocated for the current school year, and that a hearing may be held before
Respondents withhold funds, was based solely upon this Court’s Chester II holding.
In Chester II, the Chester Community Charter School (CCCS) filed a petition in this
Court to compel the Department and then-Secretary Gerald L. Zahorchak to withhold
Chester Upland School District’s (Chester Upland) state subsidies because Chester
Upland used an improper special education student calculation rate between
September 1998 and September 2007 and, thus, underfunded CCCS by
$7,490,171.75. Chester Upland responded, inter alia, that CCCS’ claims for past



                                          12
school years were barred as untimely filed.9 CCCS filed an application for summary
relief.
              In denying the summary relief application, this Court expressly held:

              Under Section 1725-A(a)(5) [of the CSL], challenges are
              made by the charter school to one or all of the 12 equal
              monthly payments calculated by the school district based on
              the budgeted education expenditures within the operating
              school year. Because that ties the challenge to the
              withholding to a particular school year, withholding for
              purported underfunding can only be made against funds
              appropriated in the school year for which payment is
              authorized to withhold disputed amounts.
              Our previous holding in Chester I [was] that Sections 1725-
              A(a)(5) and (6) [of the CSL] provide the exclusive remedy
              for underpayment(s) to a charter school, and our holding in
              this case [is] that withholding can only be made against
              appropriations for the school year in question . . . .
              [Thus, w]hen there are no funds to withhold, the Secretary
              must still acknowledge the receipt of the claim for
              underpayment from the charter school, state that there are
              no appropriated funds for the year in which the charter
              school claim can be withheld, and because there is no
              ‘trigger’ for the School District to appeal, the Secretary
              must inform the charter school that the claim will go
              directly to a hearing. In keeping with the process under
              Section 1725-A(a)(6) [of the CSL] that the school district
              has to take the appeal, the school district still has the burden
              to prove the claim is invalid. Of course, the school district
              can defend the purported claim based on the timeliness or
              validity of the claim.
              Because we have previously held that the administrative
              remedy is the exclusive remedy to hear disputes regarding
              payments made to charter schools by school districts, this
              court will not address the merits of the claims or whether
              the claims were untimely filed.          Accordingly, the
              application for summary relief is denied. The Secretary is


          9
        The Chester II Court did not address the timeliness of CCCS’ claims because it had a
remedy available in the pending hearing.
                                            13
             to hold a hearing, previously held in abeyance, in
             accordance with this opinion.

Chester II, 44 A.3d at 722-23 (emphasis added; footnote omitted). However, Chester
II is clearly distinguishable from the current case and is limited to its particular facts.
             Initially, although Respondents purportedly applied Chester II’s legal
conclusions, they failed to satisfy the conditions the Chester II Court established.
Specifically, Respondents did not, as the Chester II Court prescribed, “acknowledge
the receipt of the claim for underpayment from the charter school, [and/or] state
that there are no appropriated funds for the year in which the charter school claim
can be withheld.” Chester II, 44 A.3d at 722 (emphasis added). Rather, Respondents
in this case issued the general January 2016 Notice of its policy change to all
Pennsylvania charter schools and school districts more than three months after the
Charter School’s request. It was not until another four months later, on April 14,
2016 (the day after the Charter Schools filed the instant Application), that the
Department issued specific notice to the Charter Schools and the District that there
are no funds from which payments could be made, and these particular parties were
entitled to a hearing. See Respondents’ Ans. to Application Ex. 1. However, the
Department has never scheduled a hearing. Under the circumstances, Respondents’
failure to adhere to Chester II’s clear mandates eviscerates their argument that
they followed Chester II and that it controls in the resolution of this matter.
             Moreover, the fact that Chester II did not address timeliness or the
merits of CCCS’ claims also distinguishes that case from the instant matter. The
Court finds it significant that, in Chester II, CCCS sought underpayment
reconciliations up to nine years after the applicable fiscal years. In the case at bar,
the Charter Schools submitted their 2014-2015 documentation only days after the
applicable school year ended, in accordance with Respondents’ previously-



                                            14
permitted practice. But for the Commonwealth’s budget impasse,10 Respondents
could have, as they had repeatedly done in the years following the Chester II
decision, withheld the underfunded amounts from the next fiscal year’s
appropriations.11 Instead, long after the Charter Schools submitted its reconciliation
requests, Respondents decided to and did retroactively apply a previously-
undocumented, significant policy change.
               In addition, Section 1921(b) of the Statutory Construction Act of 1972
requires: “When the words of a statute are clear and free from all ambiguity, the letter
of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §
1921(b). The General Assembly clearly stated in Section 1725-A(a)(6) of the CSL
that a hearing will be held only upon a school district’s request whose funds have
been withheld by Respondents.            This Court has since declared that “the [CSL]
Section 1725-A(a)(6) hearing is intended to cover the accuracy of the Secretary’s
deduction of a [school district’s] subsidy . . . .” Chester I, 996 A.2d at 78 (emphasis
added). Where, as here, the Secretary has not withheld a deduction, a CSL
Section 1725-A(a)(6) hearing would be a nullity. There being no circumstance
presented here under which the Secretary could not withhold funds from the District’s
next fiscal year once the budget impasse resolved, the Chester II Court’s hearing
process modification is inapposite.
               Further illustrative of Respondents’ misguided application of Chester II
to this case is that Act 86 has since amended Section 1725-A(a)(5) of the CSL,12


       10
           The Commonwealth faced a historic 2015-2016 budget impasse that nearly forced
Pennsylvania schools to close and did not end until March 23, 2016.
        11
           There were no funds Respondents could withhold and/or pay to the Charter Schools,
either from the 2014-2015 or 2015-2016 school year appropriations until the Commonwealth’s
2015 budget was finally passed in March 2016.
        12
           The Act 86 amendment removed Respondents from the reconciliation process, unless and
until a school district fails to pay a charter school, as Respondents intended to do by their January
2016 Notice.
                                                 15
thereby specifically requiring that if the Secretary has to deduct and pay funds from
school districts’ subsidies, they would be withheld “from the appropriations for
the fiscal year in which the final documentation of payment was submitted to the
school district of residence.”        24 P.S. § 17-1725-A(a)(5) (bold and underline
emphasis added). We acknowledge that Act 86’s amendment became effective July
13, 2016 and was not retroactive.13 However, based upon our strict reading of the
amendment, Act 86 reflects the General Assembly’s intent (as carried out by
Respondents for years after Chester II was decided) that, if a charter school’s
reconciliation paperwork is submitted within the school year, the deduction will be
made from that fiscal year and, if the documentation is submitted after the end of the
school year (i.e., in the next fiscal year), the deduction will be made from school
district appropriations for the next fiscal year. Further, since Act 86 did not amend
Section 1725-A(a)(6) of the CSL, it is clear that the General Assembly intended that a
hearing will be held only upon request by a school district whose funds have been
withheld by Respondents.
              Our decision herein will have a limited effect on a finite number of
charter schools and school districts.          Assuming, arguendo, that Respondents
effectuated a valid policy change with its January 2016 Notice, it could not
conceivably be effective any sooner than when it was issued on January 8, 2016. Act
86’s amendment to Section 1725-A(a)(5) of the CSL controls all reconciliation
requests submitted as of July 13, 2016. Therefore, our holding is limited to the
Charter Schools, and similarly-situated charter schools that sought to reconcile school
district payments since the end of the 2014-2015 school year.14


       13
           The July 13, 2016 amendment to Section 1725-A(a)(5) of the CSL was immediately
effective and was not expressly made retroactive. See Section 215(2) of Act 86.
        14
           Act 86 permitted charter schools to submit reconciliation requests for the 2015-2016
school year to school districts until October 1, 2016.
                                              16
             Having concluded that Chester II is not controlling in this case and, thus,
does not prohibit the Charter Schools’ 2014-2015 school year reconciliation claims,
we declare that Respondents are in violation of the CSL’s mandatory fund
withholding provisions.


             2.    Mandamus
             The Charter School also seeks

             an order of preemptory mandamus as follows:
             (1) directing [Respondents] to withhold all further state
             payments to school districts until [the Charter Schools’]
             reconciliation request is paid in full in accordance with
             Section 1725-A of the CSL;
             (2) directing [Respondents] to redirect the overdue payment
             in the full amount of [the Charter Schools’] claim in
             accordance with Section 1725-A of the CSL;
             (3) ordering [Respondents] to direct the school districts to
             make all outstanding payments in full to [the Charter
             Schools’] or be in contempt of this Court[.]

Complaint at 17. The Charter Schools also request an order “directing [Respondents]
to pay to [the Charter Schools] all costs, attorney’s fees, and such other relief as the
Court shall deem appropriate.” Complaint at 17.

             A writ of mandamus is an extraordinary remedy used to
             compel official performance of a ministerial act when a
             petitioner establishes a clear legal right, the respondent
             has a corresponding duty, and the petitioner has no other
             adequate remedy at law. The purpose of mandamus is to
             enforce rights that have been clearly established.

Tindell v. Dep’t of Corr., 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014) (citation omitted;
emphasis added).




                                          17
            Section 1725-A(a)(5) of the CSL, and Respondents’ practice thereunder,
established a clear legal right in the Charter Schools that triggered Respondents’ duty
to withhold funds from the District’s 2015-2016 appropriations, which Respondents
refused to do. In addition, Respondents have continued to fail to schedule a hearing.
Instead, on January 8, 2016, Respondents retroactively eliminated any potential 2014-
2015 school year reconciliation claims, leaving the Charter Schools without any
remedy at law. Accordingly, the Charter Schools are entitled to mandamus relief.


            3.     Injunctive Relief

            An injunction that commands the performance of an
            affirmative act, a ‘mandatory injunction,’ is the rarest form
            of injunctive relief and is often described as an extreme
            remedy. The case for a mandatory injunction must be made
            by a very strong showing, one stronger than that required
            for a restraining-type injunction. An applicant seeking
            mandatory injunctive relief must establish the following
            elements: (1) irreparable harm will occur that is not
            compensable by money damages; (2) greater injury will
            result from the denial of the injunction than by granting the
            injunction; (3) the injunction will restore the status quo
            between the parties; and (4) the party seeking relief has a
            clear right to relief in an actionable claim.

Wyland v. W. Shore Sch. Dist., 52 A.3d 572, 582 (Pa. Cmwlth. 2012) (citations
omitted). Each of the above requirements must be satisfied before a mandatory
injunction will be ordered. Big Bass Lake Cmty. Ass’n v. Warren, 23 A.3d 619 (Pa.
Cmwlth. 2011).
            In the instant case, there is a strong showing that the District had a legal
obligation to fully fund the Charter Schools for the 2014-2015 school year, but failed
to do so, and Respondents refused to reconcile payments due to the Charter Schools.
24 P.S. § 17-1725-A(a). “A violation of [a] statute constitutes irreparable harm.”
Markham v. Wolf, 147 A.3d 1259, 1270 (Pa. Cmwlth. 2016). Denying the injunction

                                          18
will result in greater harm to the Charter Schools than to the District or Respondents.
This Court in Chester I recognized:

             It is clear, . . . that as between the school district and the
             charter school, the legislature has decided that more harm
             will befall a charter school that is not paid timely and
             accurately than upon a school district that may
             experience a delay in the receipt of the state subsidy to
             which it is entitled.

Id. at 78 (emphasis added). The injunction will restore the status quo between the
Charter Schools and the District. Accordingly, the Charter Schools are entitled to
injunctive relief.
             In addition to there being no genuine issues of material fact, the Charter
Schools have a clear legal right to declaratory, mandamus and injunctive relief.
Accordingly, the Court grants the Charter Schools’ Application.


                                          Costs
             Section 1726 of the Judicial Code provides, in relevant part:

             [(a)](1) Attorney’s fees are not an item of taxable costs
             except to the extent authorized by [S]ection 2503 [of the
             Judicial Code, 42 Pa. C.S. § 2503] (relating to right of
             participants to receive counsel fees).
             [(a)](2) The prevailing party should recover his costs
             from the unsuccessful litigant except where the:
                     (i) Costs relate to the existence, possession or
                     disposition of a fund and the costs should be borne
                     by the fund.
                     (ii) Question involved is a public question or where
                     the applicable law is uncertain and the purpose of
                     the litigants is primarily to clarify the law.
                     (iii) Application of the rule would work substantial
                     injustice.


                                             19
              [(a)](3) The imposition of actual costs or a multiple thereof
              may be used as a penalty for violation of general rules or
              rules of court.

42 Pa.C.S. § 1726. This Court has specifically ruled that “the General Assembly
provide[s] for the assessment of costs against the Commonwealth under [Section]
1726 [of the Judicial Code],” when the Commonwealth and/or its agency is the
unsuccessful litigant.15 Inmates of B-Block v. Jeffes, 483 A.2d 569, 571 (Pa. Cmwlth.
1984). Accordingly, where, as here, there is no fund to bear the Charter Schools’
costs, the applicable law is certain, and application of the rule will not work a
substantial injustice, this Court holds that the Charter Schools are entitled to recover
allowable litigation costs from Respondents.

                                      Attorney’s Fees

              The American Rule states that a litigant cannot recover
              counsel fees from an adverse party unless there is express
              statutory authorization, a clear agreement of the parties or
              some other established exception. Lavelle v. Koch, . . . 617
              A.2d 319, 323 ([Pa.] 1992). In Pennsylvania, the American
              Rule is embodied in [Section 1726(a)(1) of the Judicial
              Code,] 42 Pa.C.S. § 1726(a)(1), which provides that
              attorneys’ fees are not an item of taxable costs except as
              permitted by [Section 2503 of the Judicial Code,] 42
              Pa.C.S. § 2503 (relating to right of participants to receive
              counsel fees), which is not at issue here.[FN]16 Thus, we
              must determine whether there is express statutory
              authorization or some other established exception for the
              imposition of attorneys’ fees found in the aforementioned
              provisions of the Declaratory Judgments Act.
                  [FN]16 The Commonwealth Court stated several
                  times in its opinion that it ‘could have’ found the
                  imposition of attorneys’ fees appropriate pursuant to
                  [Section 2503(7) of the Judicial Code,] 42 Pa.C.S. §
       15
          Moreover, “sovereign immunity does not preclude an assessment of costs against the
Commonwealth where the underlying suit was not barred. . . .” Inmates of B-Block v. Jeffes, 483
A.2d 569, 572 (Pa. Cmwlth. 1984).


                                              20
                 2503(7), which permits the imposition of counsel
                 fees ‘as a sanction for dilatory, obdurate or
                 vexatious conduct during the pendency of a matter.’
                 We find, however, that it did not base its award on
                 Section 2503(7) [of the Judicial Code], as it stated:
                 ‘The School District of Philadelphia was ably
                 represented in this litigation, and the award of
                 attorneys[’] fees is granted solely pursuant to the
                 Declaratory Judgments Act.’         Slip op. dated
                 December 18, 2000 at 6 (emphasis added). Thus,
                 we do not examine the propriety of the award under
                 Section 2503(7) [of the Judicial Code].

Mosaica Acad. Charter Sch. v. Dep’t of Educ., 813 A.2d 813, 822-23 (Pa. 2002). The
Mosaica Academy Charter School Court held that attorney’s fees may be ordered in a
charter school’s favor (as against a school district) to effectuate a declaratory
judgment, but not as ancillary relief under the Declaratory Judgments Act. Id.
             Relative to mandamus, Section 8303 of the Judicial Code 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.
“[A]ny claim for counsel fees by a successful plaintiff in a mandamus action should
be awarded only after a consideration of the factors set forth in [S]ection 2503 [of the
Judicial Code, 42 Pa.C.S. § 2503].” Twp. of Marple v. Weidman, 613 A.2d 94, 95
(Pa. Cmwlth. 1992). “[A]n award for counsel fees under Section 2503 [of the
Judicial Code] is meant to compensate the innocent litigant for costs caused by the
actions of the opposing party.” Maurice A. Nernberg & Assocs. v. Coyne, 920 A.2d
967, 972 (Pa. Cmwlth. 2007).
             Section 2503 of the Judicial Code provides, in pertinent part:

             The following participants shall be entitled to a reasonable
             counsel fee as part of the taxable costs of the matter:
             ....


                                          21
              (6) Any participant who is awarded counsel fees as a
              sanction against another participant for violation of any
              general rule which expressly prescribes the award of
              counsel fees as a sanction for dilatory, obdurate or
              vexatious conduct during the pendency of any matter.
              (7) Any participant who is awarded counsel fees as a
              sanction against another participant for dilatory, obdurate or
              vexatious conduct during the pendency of a matter.
              ....
              (9) Any participant who is awarded counsel fees because
              the conduct of another party in commencing the matter
              or otherwise was arbitrary, vexatious or in bad faith.

42 Pa.C.S. § 2503 (emphasis added).             Clearly, “the plain meaning of [Section]
2503(7) and (9) [of the Judicial Code] is that attorney’s fees may be appropriate for
misconduct occurring in commencement of or during the pendency of statutory
appeals.” Dep’t of Transp., Bureau of Driver Licensing v. Smith, 602 A.2d 499, 504
(Pa. Cmwlth. 1992). This Court has further interpreted that

              [t]he phrase ‘or otherwise’ in [Section 2503(9) of the
              Judicial Code] refers to misconduct in the raising of
              defenses, and cannot be construed to refer to the
              [Commonwealth       agency’s]    action    before    the
              commencement of the case in court. [Dep’t of Transp.,
              Bureau of Driver Licensing v.] Smith[, 602 A.2d 499 (Pa.
              Cmwlth. 1992)].

Norris v. Commonwealth, 634 A.2d 673, 676 (Pa. Cmwlth. 1993). Accordingly,
“[Section 2503 of the Judicial Code], by its very terms, is a ‘taxable costs’ provision,
thereby relating to the conduct of a party at some point during the litigation
process.”16 Bucks Cnty. Servs., Inc. v. Phila. Parking Auth., 71 A.3d 379, 393 (Pa.
Cmwlth. 2013) (emphasis added).



       16
         The term “litigation” is defined as “[t]he process of carrying on a lawsuit.” Black’s Law
Dictionary 1017 (9th ed. 2009).
                                               22
               Here, after the Charter Schools commenced this action on February 8,
2016, Respondents continued to delay and/or refuse the Charter Schools’ withholding
requests. Also during the pendency of this matter since the Complaint was filed, the
Department issued its March 2016 Notice wherein it declared that the matter “will
proceed to administrative hearing as prescribed by [Chester II]” and, “[a]s a result of
the record established through the administrative hearing process, the Secretary will
then issue a decision.” Application Ex. A. Notwithstanding, Respondents have failed
to make any withholdings and/or schedule a hearing.
               We hold that Respondents’ retroactive application of a significant policy
change without proper notice to the Charter Schools or the District was, at the very
least, arbitrary, and its ongoing refusal to withhold reconciliation funds and/or
schedule a hearing in accordance with the CSL since the Complaint was filed is
dilatory and obdurate. Thus, the Charter Schools are entitled to attorney’s fees from
Respondents related to the Charter Schools’ mandamus action.17


                          III. Preliminary Objections
               Having determined that the Charter Schools are entitled to summary
relief, Respondents’ Preliminary Objections are overruled as moot. See Leach v.
Commonwealth, 118 A.3d 1271, 1289 (Pa. Cmwlth. 2015), aff’d, 141 A.3d 426 (Pa.
2016); see also Marshall v. Pa. Bd. of Prob. & Parole, 638 A.2d 451 (Pa. Cmwlth.


       17
           This Court acknowledges that when it imposes costs, including attorney’s fees, against
Respondents that the taxpayers are the ultimate payor. Accordingly, the Court is loath to assess
costs or fees against a Commonwealth agency except in exceptional and limited circumstances. In
this instance, the District is statutorily obligated to pay the monies owed to the Charter Schools. For
reasons unknown to the Court, the District did not pay the Charter Schools and, thus, the
Department was required to withhold the District’s subsidies for that purpose, but refused to do so.
By assessing costs and fees against Respondents in this case, the Respondents’ wrongdoing is
clearly communicated and a smaller burden will be borne by all Commonwealth taxpayers, as
opposed to the smaller numbers of taxpayers in each affected school district.
                                                  23
1994) (summary relief may be granted before disposing of outstanding preliminary
objections).


                                  IV. Conclusion
               Chester II does not apply to the circumstances presented in this case, nor
did Respondents seek to adhere to its ruling.         Based upon the particular facts
presented herein, the Charter Schools’ Application is granted. Accordingly, we direct
Respondents to:

               (1) Deduct and withhold $425,658.74 for the 2014-2015 school
               year, as documented by the Charter Schools, from any and all state
               payments made to the School District of Philadelphia.
               (2) Pay to the Charter Schools costs and attorney’s fees incurred
               from the date the Charter Schools’ Complaint was filed with this
               Court, until the aforementioned amounts are deducted and
               withheld by Respondents.

               Respondents’ Preliminary Objections are overruled.


                                        ___________________________
                                        ANNE E. COVEY, Judge




                                            24
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


KIPP Philadelphia Charter Schools,     :
                        Petitioner     :
                                       :
                     v.                :
                                       :
Commonwealth of Pennsylvania,          :
Department of Education; and Pedro A. :
Rivera, in his official capacity as    :
Secretary of Education,                :   No. 52 M.D. 2016
                           Respondents :

                                     ORDER

            AND NOW, this 1st day of May, 2017, KIPP Philadelphia Charter
Schools’ (Charter Schools) Application for Summary Relief is GRANTED. The
Commonwealth of Pennsylvania, Department of Education and Pedro A. Rivera
(Respondents) are directed to:

            (1) Deduct and withhold $425,658.74 for the 2014-2015 school
            year, as documented by the Charter Schools, from any and all state
            payments made to the School District of Philadelphia.
            (2) Pay to the Charter Schools costs and attorney’s fees incurred
            from the date the Charter Schools’ Complaint was filed with this
            Court, until the aforementioned amounts are deducted and
            withheld by Respondents.

            Respondents’ Preliminary Objections are OVERRULED.


                                     ___________________________
                                     ANNE E. COVEY, Judge
