             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Baden Academy Charter School,          :
Central Pennsylvania Digital Learning :
Foundation Charter School, Collegium :
Charter School, Hill House Passport    :
Academy Charter School, Manchester :
Academic Charter School, Pennsylvania :
Cyber Charter School, Penn Hills       :
Charter School for Entrepreneurship,   :
Pennsylvania Leadership Charter        :
School, Renaissance Academy Charter :
School, Urban Academy of Greater       :
Pittsburgh Charter School,             :
                          Petitioners  :
                                       :
                   v.                  :
                                       :
Commonwealth of Pennsylvania,          :
Department of Education, the Secretary :
of Education, Pedro A. Rivera          :
(In His Official Capacity),            :   No. 46 M.D. 2016
                          Respondents :    Submitted: December 8, 2017


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                FILED: June 8, 2018

            Before this Court is the Second Amended Petition for Review (Petition)
filed by the Pennsylvania Coalition of Public Charter Schools (Coalition) and 20
Pennsylvania charter schools, including Baden Academy Charter School, Central
Pennsylvania Digital Learning Foundation Charter School, Collegium Charter
School, Hill House Passport Academy Charter School, Manchester Academic Charter
School, Pennsylvania Cyber Charter School, Penn Hills Charter School for
Entrepreneurship, Pennsylvania Leadership Charter School, Renaissance Academy
Charter School, and Urban Academy of Greater Pittsburgh Charter School
(collectively, Charter Schools)1 against the Commonwealth of Pennsylvania,
Department of Education (Department) and Pedro A. Rivera, in his official capacity
as Secretary of Education (Secretary) (collectively, Respondents). Also before this
Court are the applications for summary relief filed by Respondents (Respondents’
Summary Relief Application), and the Charter Schools (Charter Schools’ Summary
Relief Application), and preliminary objections filed by Respondents (Respondents’
Preliminary Objections).


                                    I. Background
              “Pursuant to [S]ection 1725-A of the . . . Charter School Law (CSL)[2] . .
. , a school district that has any resident students enrolled in a charter school must pay
the charter school for each enrolled student.”3 Waslow v. Pa. Dep’t of Educ., 984

       1
           This litigation initially included claims by the Coalition and 20 petitioning charter schools.
This Court has since discontinued the Coalition’s action and also the actions by Charter Schools
who represented that their claims have been resolved. The caption has been amended accordingly.
As of July 31, 2017, only the above-captioned Charter Schools and Respondents remain parties to
this action.
         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
           Section 1725-A(a) of the CSL states, in relevant part:

               Funding for a charter school shall be provided in the following
               manner:

               (1) There shall be no tuition charge for a resident or nonresident
               student attending a charter school.

               (2) For non-special education students, the charter school shall
               receive for each student enrolled no less than the budgeted total
               expenditure per average daily membership of the prior school year, as
               defined in [S]ection 2501(20) [of the Public School Code], minus the
               budgeted expenditures of the district of residence for nonpublic
               school programs; adult education programs; community/junior
                                                   2
A.2d 575, 576 (Pa. Cmwlth. 2009) (footnote omitted). 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,4 the Department permitted charter schools to conduct end-of-year
reconciliations and thereafter seek to have Respondents withhold any underfunded
amounts from delinquent school districts’ state subsidies pursuant to Section 1725-
A(a)(5) of the CSL. That provision provides:
              If a school district fails to make a payment to a charter
              school as prescribed in this clause, the [S]ecretary shall
              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).5

              college programs; student transportation services; for special
              education programs; facilities acquisition, construction and
              improvement services; and other financing uses, including debt
              service and fund transfers as provided in the Manual of Accounting
              and Related Financial Procedures for Pennsylvania School Systems
              established by the [D]epartment. This amount shall be paid by the
              district of residence of each student.

              (3) For special education students, the charter school shall receive
              for each student enrolled the same funding as for each non-special
              education student as provided in clause (2), plus an additional amount
              determined by dividing the district of residence’s total special
              education expenditure by the product of multiplying the combined
              percentage of [S]ection 2509.5(k) [of the Public School Code, 25 P.S.
              § 25-2509.5(k)] times the district of residence’s total average daily
              membership for the prior school year. This amount shall be paid by
              the district of residence of each student.
24 P.S. § 17-1725-A(a) (emphasis added). Section 2509.5(k) of the Public School Code was added
by Section 18 of the Act of August 5, 1991, P.L. 219.
       4
         Thomas W. Corbett served as Pennsylvania Governor from January 18, 2011 to January
20, 2015.
       5
         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
                                                3
              The Charter Schools aver in the Petition that they “have submitted
properly[-]documented requests for [2014-2015 school year] funding to [50 non-
compliant] school districts [(School Districts)] and to [Respondents] in accordance
with the requirements of the [CSL] and have not been paid.” Petition ¶ 92; see also
Petition ¶¶ 111-114, 242, 254, 262, 275, 281, 287-290, 296, 302, 308, 314-317, 323-
325, 331-333. On January 8, 2016, the Department notified Pennsylvania charter
schools and school districts (January 2016 Notice):

              In 2012, the Pennsylvania Commonwealth Court [in
              Chester Community Charter School [(CCCS)]v. 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


              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, 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). The amendment was immediately effective on July 13, 2016 and, thus
controls claims made thereafter.
                                                 4
             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.

Petition Ex. A (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 charter schools and school districts to resolve.
Accordingly, once the 2015-2016 school year ended, the Department would no longer
honor requests to deduct or withhold from state payments to school districts amounts
due and owing to charter schools for that or any previous year.
             On February 5, 2016, the Charter Schools commenced this action. On
March 7, 2016, the Department issued a letter to all 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

                                           5
               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.
               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.

Petition Ex. B (emphasis added).
               According to the Petition, “after this matter was filed and amended once,
[Respondents] issued several notices to a small number of the Charter Schools related
to administrative hearings.”6            Petition ¶ 160.          According to the notices,
“[Respondents] had ‘initially determined that [] this proceeding could be resolved
through dispute resolution procedures. Therefore, the parties [we]re encouraged to
engage in dispute resolution to resolve th[eir] matter[s] prior to the assignment of a
hearing officer, the filings of memoranda of law or issuance of a final adjudication.’”
Petition ¶ 161. Respondents further declared in the notices that “a hearing officer




       6
           According to the Charter Schools’ Summary Relief Application, “in early May 2016,
[Respondents] sent the initial notice letters for the administrative process to brick and mortar
[Charter Schools].” Charter Schools’ Summary Relief App. ¶ 31. “[Respondents] did not sen[d]
the initial notice letters for the administrative process to the cyber [Charter Schools] until months
later (October 7, 2016).” Charter Schools’ Summary Relief App. ¶ 32.
                                                 6
w[ould] be assigned if the parties did not request dispute resolution within 30 days.”
Petition ¶ 162.7
               According to the Petition, at a June 20, 2016 pre-hearing conference for
the CCCS matter, William Penn “agreed that there [was] no dispute with the amount
of CCCS[’] 2014-[20]15 reconciliation claim[.]” Petition ¶ 165. In the Petition, the
Charter Schools further averred that Respondents took the position in that case that
the administrative hearings were intended to establish only the amounts claimed, and
that a judgment could be issued against William Penn, but Respondents lacked the
authority and mechanism by which to enforce any resultant judgment. Petition ¶¶
166-167. Accordingly, Respondents declared that if the reconciliation amount was
not disputed, the process described in their notices “would do nothing to address the
claim[s].” Petition ¶ 168; see also Petition ¶ 344.
               On June 30, 2016,8 the Coalition and the Charter Schools filed the
Petition against Respondents and the School Districts seeking: (1) an order directing
the School Districts or Respondents to pay the Charter Schools monies owed to them
for the 2014-2015 school year (Count I); (2) a declaration from this Court ruling,
essentially, that the Charter Schools have exhausted their administrative remedies,
that Respondents are in violation of the CSL’s mandatory fund withholding
provisions, that Chester II does not prevent its 2014-2015 school year claims, and
that the Department must withhold the funds as mandated by the CSL (Count II); 9 (3)

       7
           On June 3, 2016, Respondents assigned a hearing officer for the Chester Community
Charter School v. William Penn School District (William Penn) (BBFM-00-2015-07) dispute and,
by July 7, 2016 order, the Department scheduled the hearing for August 26, 2016. See Petition ¶
163. “The hearing was canceled at the parties’ request and the matter was submitted on stipulations
of fact and briefs.” CCCS’ Summary Relief App. Ex. B at 2.
         8
           The Charter Schools’ initial petition for review was filed on February 5, 2016. They filed
an amended petition for review on April 6, 2016. The Petition was filed on June 30, 2016.
         9
           Specifically, the Charter Schools requested judgment in their favor and an order declaring
that: (a) the Charter Schools have exhausted their administrative remedies; (b) Chester II is limited
to its facts; (c) Chester II does not require withholding and redirection only from funds budgeted in
                                                 7
a mandamus order directing the Secretary to withhold the School District’s state
funds until the Charter Schools are paid in full, to redirect the Charter Schools’
overdue payments, and to make all outstanding payments to the Charter Schools
(Count III); (4) a mandamus order directing the non-compliant School Districts to
immediately pay the monies owed, plus costs and attorney’s fees, consequential
losses, loss of investment income and expenses and interest for borrowing money
necessitated by Respondents’ acts or omissions, in accordance with Section 8303 of


the prior school year; (d) Chester II does not impose an absolute limitation period/time bar under
which redirection or reconciliation requests or direct payments must be made; (e) Chester II does
not forbid the Department from withholding and redirecting state funding where the Charter
Schools’ payment claims were made within the school year but the process was delayed through no
fault of the Charter Schools; (f) Chester II does not forbid the Department from withholding and
redirecting state payments where the Charter Schools’ claims were made in accordance with the
Department’s procedures, but the Department failed to pay them; (g) the January 2016 Notice that
the law or Chester II preclude the Department from withholding the claimed funds is incorrect; (h)
the Department’s refusal to redirect funds unjustly enriched the non-compliant School Districts; (i)
prospective withholding and payment of budgeted funds from non-compliant School Districts in
unlawfully-retained amounts does not constitute the Commonwealth’s payment of money damages;
(j) Charter Schools’ withholding, redirection or reconciliation requests to the School Districts for
the 2014-2015 school year in accordance with custom and practice in 2012-2013 and 2013-2014
school years triggered as a matter of law the School Districts’ and the Department’s mandatory
obligations under the CSL; (k) under the CSL that requirement that the School Districts are
primarily responsible for paying the Charter Schools is non-delegable; (l) the School Districts’
mandatory and non-delegable responsibility under the CSL cannot be transferred to the Department
or any other party; (m) the School Districts are responsible for their Charter School obligations if
the Department does not pay withholding or redirection; (n) the Charter Schools’ withholding and
redirection requests shall be honored consistent with prior practice and in amounts the Court will
order in a schedule; (o) the CSL requires that non-compliant School Districts’ funds must be
withheld and redirected until the Charter Schools are paid in full, regardless of the school year to
which the request corresponds or from which state payments are withheld; (p) the CSL prohibits the
Department from releasing state payments from any year to any school district that has failed to pay
its charter schools in full, or is in violation of the CSL’s funding provisions as of when the state
payments are released; (q) the CSL requires the School Districts, the Charter Schools and the
Department to reconcile and pay all due amounts regardless of the school year end date; (r)
payments by the Pennsylvania Treasury or the Department to any School District constitute any and
all state payments under the CSL and are subject to the Department’s withholding and redirection;
and, (s) the Court has exclusive jurisdiction over this matter until such time as all parties certify that
compliance has been achieved. See Petition at 60-64.
                                                    8
the Judicial Code, 42 Pa.C.S. § 8303 (Count IV); (5) a writ of prohibition keeping
Respondents from exercising jurisdiction, including scheduling administrative
hearings and releasing state payments to non-compliant School Districts, until the
Charter Schools’ funds are fully restored (Count V);10 and, (6) a permanent injunction
prohibiting Respondents from enforcing the January 2016 Notice, further delaying or
refusing to comply with their duties and the Charter Schools’ requests to withhold
and redirect state payments, failing or refusing to make all future obligations pursuant
to their obligations under the United States and Pennsylvania Constitutions and the
CSL, and releasing state payments to non-compliant School Districts until the Charter
Schools’ reconciliations are paid in full (Count VI).
               On August 1, 2016, Respondents filed their Preliminary Objections
seeking to dismiss Petition Counts I, II, III, V and VI for failure to state claims upon
which relief may be granted. On August 30, 2016, the Charter Schools denied the
allegations in Respondents’ Preliminary Objections.11

       10
           “[T]he purpose of [a writ of prohibition] is to protect a party from enduring a hearing or
trial before a tribunal that has absolutely no power to deal with the subject matter before it[.]”
Indep. Blue Cross v. Pa. Ins. Dep’t, 670 A.2d 221, 223 (Pa. Cmwlth. 1996), aff’d per curiam, 687
A.2d 1117 (Pa. 1997).
        11
           On May 25, 2017, the Secretary concluded in CCCS v. William Penn:

               [T]he requirement in [S]ection 1725-A(a)(5) [of the CSL] to make a
               payment is separate from the redirection remedy provided for when a
               charter school is not paid, which is itself also separate from
               [Respondents’] authority to adjudicate disputes.       Furthermore,
               although [Respondents] cannot withhold the payments from William
               Penn, this does not mean that [Respondents] cannot adjudicate the
               dispute between William Penn and [CCCS,] and that [Respondents]
               cannot order William Penn to make payments to [CCCS].
CCCS’ Summary Relief App. Ex. B (CCCS Opinion) at 17-18. The Secretary agreed that the CSL
imposes a mandatory duty on school districts to pay charter schools and specifically ordered
William Penn to pay CCCS $281,915.70 for the 2014-2015 school year. See CCCS Opinion at 11,
17-18.
       Although this Court filed Richard Allen Preparatory Charter School v. Department of
Education, 161 A.3d 415 (Pa. Cmwlth. 2017) and KIPP Philadelphia Charter Schools v.
                                                 9
              On June 23, 2017, Respondents filed their Summary Relief Application
seeking judgment in their favor and against the Charter Schools because, inter alia,
the July 13, 2016 CSL amendment (Act 86) “squarely addresses and resolves the
challenges to the reconciliation process asserted by [the Charter Schools and the
Coalition] . . . with respect to the 2015-[20]16 . . . and subsequent school years” and,
thus, moots their claims for prospective declaratory and injunctive relief.12
Respondents’ Summary Relief App. ¶ 3. On July 7, 2017, the Charter Schools
opposed Respondents’ Summary Relief Application.
              On June 28, 2017, the Charter Schools filed their Summary Relief
Application seeking declarations in their favor relative to Petition Count I (for
delinquent 2014-2015 school year payments) and Count II (for the Department to
withhold the School Districts’ delinquent funds), plus costs and attorney’s fees,
pursuant to this Court’s decisions in Richard Allen Preparatory Charter School v.
Department of Education, 161 A.3d 415 (Pa. Cmwlth. 2017), aff’d per curiam, ___
A.3d ___ (Pa. No. 19 EAP 2017, filed June 1, 2018), and KIPP Philadelphia Charter
Schools v. Department of Education, 161 A.3d 430 (Pa. Cmwlth. 2017), aff’d per
curiam, ___ A.3d ___ (Pa. No. 20 EAP 2017, filed June 1, 2018).13 On July 17,
2017, Respondents opposed the Charter Schools’ Summary Relief Application.


Department of Education, 161 A.3d 430 (Pa. Cmwlth. 2017) on May 1, 2017, approximately three
weeks before the CCCS Opinion was issued, the Secretary stated: “Because those decisions were
issued after the briefing in [the CCCS v. William Penn] matter had closed and [were] based on facts
different than those presented in [the CCCS v. William Penn] dispute, they [were] not addressed
[there]in.” CCCS Opinion at 12 n.3.
        12
           Respondents acknowledge that, since Act 86 was not retroactive, Act 86 did not resolve
the 2014-2015 school year reconciliations at issue in this action. Rather, the 2016 CSL amendment
controls charter schools’ reconciliations for the 2015-2016 and subsequent school years. See
Respondents’ Summary Relief App. ¶¶ 2, 4, 7; see also Respondents’ Br. at 17-18, 20-21.
        13
           In Richard Allen and KIPP, charter schools sought direct payment and declaratory,
mandamus and injunctive relief in their favor and against Respondents for the precise circumstances
presented in the case at bar. Respondents similarly filed preliminary objections to the charter
schools’ complaints. This Court, en banc, granted summary relief in favor of the petitioning charter
                                                10
                                   II. Summary Relief

             [Pennsylvania Rule of Appellate Procedure] 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.

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 Issue of Material Fact
             The Charter Schools expressly state that there are no genuine issues of
material fact to be resolved. See Charter Schools’ Summary Relief App. ¶ 110; see
also Charter Schools’ Br. in Support of Summary Relief App. at 15. Although
Respondents do not similarly declare that there are no outstanding factual issues, their
Summary Relief Application seeks judgment in its favor on the bases the Charter
Schools’ 2014-2015 tuition reconciliation claims have been resolved, and Act 86
provides the means for the Charter Schools to obtain funds thereafter.                  See
Respondents’ Summary Relief App. ¶¶ 15, 18, 20.                 Accordingly, neither of
Respondents’ purported dismissal grounds call upon this Court to resolve a material




schools, and awarded costs and attorney’s fees. The Court overruled Respondents’ preliminary
objections as moot.
                                            11
factual issue. Rather, the issue before the Court is whether the Charter Schools are
entitled to judgment as a matter of law.


         B. Clear Right to Relief
             In the Petition, the Charter Schools ask this Court to direct Respondents
to withhold the School Districts’ state funding for payment to the Charter Schools.
The Charter Schools also request a writ of prohibition. Further, the Charter Schools
seek declaratory, mandamus and/or injunctive relief.


                   1. Payment Order
             In the Petition, the Charter Schools claim that they “have submitted
properly[-]documented requests for [2014-2015 school year] funding to [50 non-
compliant School Districts] and to [Respondents] in accordance with the
requirements of the [CSL] and have not been paid.” Petition ¶ 92; see also Petition
¶¶ 111-114, 262, 275, 281, 287-290, 296, 302, 308, 314-317, 323-325, 331-333. In
Petition Count I, the Charter Schools request an order from this Court directing the
non-compliant School Districts or Respondents to pay the Charter Schools monies
owed to them for the 2014-2015 school year.
             However, this Court has systematically dismissed each School District
as the Charter Schools’ reconciliation claims against them were resolved. The last of
the School Districts were dismissed from this action by July 31, 2017 order. Also as
of July 31, 2017, this Court discontinued this action as to the Coalition and most of
the Charter Schools whose reconciliation claims have been settled. As a result, the
only petitioners remaining in this action are the above-captioned Charter Schools.
             Of the remaining Charter Schools, Baden Academy Charter School,
Central Pennsylvania Digital Learning Foundation Charter School, Collegium
Charter School and Renaissance Academy Charter School did not allege in the
                                           12
Petition that any School District owed them funds for the 2014-2015 school year
(hereinafter referred to as Declaration Charter Schools).14 See Petition ¶¶ 5, 6, 10, 24.
Although Hill House Passport Academy Charter School, Manchester Academic
Charter School, Pennsylvania Cyber Charter School, Penn Hills Charter School for
Entrepreneurship, Pennsylvania Leadership Charter School, and Urban Academy of
Greater Pittsburgh Charter School made funding requests for the 2014-2015 school
year, see Petition ¶¶ 13-18, 20-23, 26-27, those claims have been resolved
(hereinafter referred to as Owed Charter Schools).15
              Because the above-captioned Charter Schools either had no funding
claims against the School Districts, or such claims have been resolved, there is no
legal bases upon which this Court can now direct Respondents to withhold the School
Districts’ state funding to pay the Charter Schools.             Under the circumstances,
Respondents have a clear right to relief in their favor as to Petition Count I.


                     2. Writ of Prohibition
              In Petition Count V, the Charter Schools seek a writ of prohibition to
keep Respondents from exercising jurisdiction - particularly by scheduling
administrative hearings and/or releasing state payments to non-compliant School
Districts - until the Charter Schools’ funds are fully restored. However, because the
remaining Charter Schools have no outstanding funding claims, there is no legal basis
upon which this Court may now prohibit Respondents from exercising jurisdiction
over hearing schedules or the School Districts’ state funding payments. Under such


       14
           See Charter Schools’ Summary Relief App. at 3. Because these Charter Schools did not
assert reconciliation claims, they primarily seek a declaration of their rights and Respondents’
duties.
        15
           See Charter Schools’ Summary Relief App. at 2-3. These Charter Schools brought this
legal action to resolve their unpaid 2014-2015 school year reconciliation claims and to obtain a
declaration of their rights and Respondents’ duties.
                                              13
circumstances, Respondents have a clear right to relief in their favor as to Petition
Count V.


                    3. Declaratory Relief
             In Petition Count II, the Charter Schools seek declarations from this
Court that they have exhausted their administrative remedies, that Respondents
violated the CSL’s mandatory fund withholding provisions and, since Chester II does
not prevent its 2014-2015 school year claims, the Department must withhold funds as
mandated by the CSL.
             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
Pa.C.S. § 7532. Section 7541(a) 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(a).          “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).
             However, declaratory judgment is appropriate only where
             there exists an actual controversy.        Allegheny C[ty].
             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).

Richard Allen, 161 A.3d at 422; see also KIPP, 161 A.3d at 438.


                                            14
This Court has already declared:

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 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
School’s exclusive remedy against the [School] Districts for
the underfunded amounts, and that the Charter School
                             15
              submitted a reconciliation request and supporting
              documentation, the Secretary has not deducted and
              withheld or paid the outstanding funds to the Charter
              School, 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 School and, perhaps, the limited number of
              similarly-situated charter schools. Chester I.

Richard Allen, 161 A.3d at 422-23 (italic emphasis added); see also KIPP, 161 A.3d
at 438-39 (emphasis added). This Court further concluded that Chester II does not
prohibit charter schools from making their 2014-2015 school year reconciliation
claims, or prevent Respondents from acting on them, in the 2015-2016 school year.
Richard Allen; KIPP. Finally, this Court ruled in Richard Allen and KIPP:

              [T]he Department’s January 2016 Notice and its failure to
              conduct a hearing pursuant to the CSL have left the Charter
              School[s] without a means to assert [their] statutory rights,
              [they have exhausted their administrative remedies, and]
              this Court has jurisdiction over [their] claims for
              declaratory, mandamus and injunctive relief.[16]

Richard Allen, 161 A.3d at 421 n.8; see also KIPP, 161 A.3d at 437 n.8.
Accordingly, the law is settled that Respondents violate Section 1725-A(a)(5) of the
CSL if they do not deduct and withhold or pay undisputed, outstanding 2014-2015
school year funds owed by delinquent school districts to charter schools that have
submitted reconciliation requests and supporting documentation.                 Richard Allen;
KIPP.
              In the instant matter, it is clear on the face of the Petition that the
Declaration Charter Schools did not submit reconciliation requests and supporting
documentation to Respondents for outstanding 2014-2015 school year funds. Under

        16
           This Court reasoned: “Were we to adopt Respondents’ position that this Court lacks any
jurisdiction whatsoever to hear this matter [until a hearing examiner issues a final order after a
hearing], the Charter School[s’] causes of action would be hamstrung for as long as Respondents
choose not to act.” Richard Allen, 161 A.3d at 421 n.8; see also KIPP, 161 A.3d at 437 n.8.

                                               16
the circumstances, the Declaration Charter Schools did not exhaust their
administrative remedies and, therefore, Respondents did not violate Section 1725-
A(a) of the CSL as to them.
              The Owed Charter Schools, on the other hand, submitted reconciliation
requests and supporting documentation to Respondents for undisputed, outstanding
2014-2015 school year funds, and Respondents failed to deduct or withhold the
delinquent School Districts’ funds in accordance with the CSL. Thus, the Owed
Charter Schools exhausted their administrative remedies, and Respondents violated
Section 1725-A(a) of the CSL relative to their reconciliation claims.
              However, in order for this Court to render a declaratory judgment in this
matter, the Charter Schools “must show the existence of an actual controversy related
to the invasion or a threatened invasion of [their] legal rights.” Berwick Twp. v.
O’Brien, 148 A.3d 872, 881 (Pa. Cmwlth. 2016). A declaratory judgment “must not
be employed to determine rights in anticipation of events that may never occur or for
consideration of moot cases[17] or for the rendition of an advisory opinion that may
       17
              As a general rule, courts will not decide moot cases. ‘[A] case is
              moot if there is no actual case or controversy in existence at all stages
              of the controversy.’ Phila. Pub. Sch. Notebook v. Sch. Dist. of Phila.,
              49 A.3d 445, 448 (Pa. Cmwlth. 2012). As this Court explained in
              Philadelphia Public School Notebook:

                  Mootness problems arise in cases involving litigants who
                  clearly had one or more justiciable matters at the outset of
                  the litigation, but events or changes in the facts or law occur
                  which allegedly deprive the litigant of the necessary stake in
                  the outcome after the suit is underway.

              Id. It is well settled that the courts ‘do not render decisions in the
              abstract or offer purely advisory opinions.’ Pittsburgh Palisades
              Park, LLC v. Commonwealth, . . . 888 A.2d 655, 659 ([Pa.] 2005).
Costa v. Cortes, 142 A.3d 1004, 1016 (Pa. Cmwlth.), aff’d per curiam, 145 A.3d 721 (Pa. 2016).

              [T]here are exceptions to the mootness doctrine for circumstances
              where ‘(1) the conduct complained of is capable of repetition yet
              evading review, or (2) involves questions important to the public
                                                 17
prove to be academic.” Mazur v. Wash. Cty. Redevelopment Auth., 954 A.2d 50, 53
(Pa. Cmwlth. 2008). Here, Richard Allen and KIPP settled the issue of Charter
Schools’ rights and Respondents’ responsibilities related to the 2014-2015 school
year reconciliation claims, the Declaration Charter Schools had no 2014-2015 claims,
the Owed Charter Schools resolved their 2014-2015 claims,18 and the July 13, 2016
amendment to Section 1725-A(a) of the CSL controls claims made thereafter. Under
such circumstances, there is no actual controversy upon which this Court may render
declaratory judgment.19
              Accordingly, Respondents have a clear right to relief in their favor as to
Petition Count II.


                      4. Mandamus Relief
              In Petition Count III, the Charter Schools also seek a mandamus order
directing the Secretary to withhold the School Districts’ state funds until the Charter

              interest, or (3) will cause one party to suffer some detriment without
              the Court’s decision.’ Cytemp Specialty Steel Div., Cyclops Corp. v.
              Pa. Pub. Util. Comm’n, . . . 563 A.2d 593, 596 ([Pa. Cmwlth.] 1989).
Costa, 142 A.3d at 1016-17. Despite that the cases brought before this Court demonstrated that the
issue of the 2014-2015 charter school reconciliations in light of the January 2016 Notice is capable
of repetition, it has not evaded review. In addition, the questions were resolved by Richard Allen
and KIPP. Finally, neither party will suffer detriment without this Court’s declaration. Thus, the
mootness doctrine exceptions do not apply in this case.
        18
           The Owed Charter Schools’ claims for attorney’s fees and costs are denied. Costs and
attorney’s fees are not permissible ancillary relief in declaratory judgment actions, but rather are
permitted only to effectuate a declaratory judgment already entered by the Court. See Mosaica
Acad. Charter Sch. v. Dep’t of Educ., 813 A.2d 813 (Pa. 2002); see also Richard Allen and KIPP.
        Although this Court is dismayed at Respondents’ extreme delay in acting on the Owed
Charter Schools’ reconciliation requests, and Respondents’ disregard of Richard Allen and KIPP,
the Owed Charter Schools have been paid, which is what the CSL intended.
        19
           Notwithstanding the Charter Schools’ argument to the contrary, see Charter Schools’
Answer to Respondents’ Summary Relief Application at 5-6, 14-15, this Court is not compelled in
this case nor is it authorized to anticipate what should happen if the Commonwealth faces future
protracted budget stalemates and/or Respondents fail to timely schedule administrative hearings
and/or deduct and withhold state funding to satisfy post-2014-2015 school year charter school
reconciliation claims.
                                                18
Schools are paid in full, to redirect the Charter Schools’ overdue payments, and to
make all outstanding payments to the Charter Schools. In Petition Count IV, the
Charter Schools request a mandamus order directing the non-compliant School
Districts to immediately pay the monies owed, plus costs and attorney’s fees,
consequential losses, loss of investment income, and expenses and interest for
borrowing necessitated by Respondents’ acts or omissions, in accordance with
Section 8303 of the Judicial Code, 42 Pa.C.S. § 8303.20
              The Pennsylvania Supreme Court has held:

              ‘Mandamus is an extraordinary writ that will only lie to
              compel official performance of a ministerial act or
              mandatory duty where there is a clear legal right in the
              plaintiff, a corresponding duty in the defendant, and
              want of any other appropriate or adequate remedy.’
              Jackson v. Vaughn, . . . 777 A.2d 436, 438 ([Pa.] 2001)
              (citation omitted). It may be used to compel performance
              of a ministerial duty, or to compel action in a matter
              involving judgment or discretion. However, it may not be
              used to direct the exercise of judgment or discretion in a
              particular way, or to direct the retraction or reversal of
              an action already taken. ‘Mandamus is a device that is
              available in our system to compel a tribunal or
              administrative agency to act when that tribunal or agency
              has been ‘sitting on its hands.’ ’ [Pa. Dental Ass’n v.
              Commonwealth Ins. Dep’t, . . . 516 A.2d 647, 652 ([Pa.]
              1986).]

Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923 A.2d
1099, 1107-08 (Pa. 2007) (citations omitted; emphasis added).
              Despite having declared that the Owed Charter Schools had a clear legal
right to be paid for the 2014-2015 school year, and that Respondents had a

       20
          Section 8303 of the Judicial Code specifies: “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.



                                                19
corresponding legal duty to ensure that they were paid, since the remaining Charter
Schools have no outstanding funding claims, there is no legal basis upon which this
Court may now direct Respondents to withhold the School Districts’ state funds and
redirect the Charter Schools’ overdue payments, or to make outstanding payments to
the Charter Schools. Nor is there an existing legal basis to direct the non-compliant
School Districts to immediately pay the monies owed, plus costs and attorney’s fees,
consequential losses, loss of investment income, and expenses and interest for
borrowing necessitated by Respondents’ acts or omissions in accordance with Section
8303 of the Judicial Code.21
              Under the circumstances, Respondents have a clear right to relief in their
favor as to Petition Counts III and IV.


                     5. Injunctive Relief
              In Petition Count VI, the Charter Schools request a permanent injunction
prohibiting Respondents from enforcing the January 2016 Notice, from further
delaying or refusing to comply with their duties and the Owed Charter Schools’
requests to withhold and redirect state payments, from failing or refusing to fulfill
their obligations under the CSL, and from releasing state payments to non-compliant
School Districts until the Owed Charter Schools’ reconciliations are paid in full.

       21
           The Owed Charter Schools are not entitled to attorney’s fees. Attorney’s fees may be
awarded in mandamus actions where there has been arbitrary, dilatory and/or obdurate conduct
during litigation. See Richard Allen and KIPP. Although Respondents’ retroactive notice that the
charter schools would not be paid was arbitrary, id., and Respondents did not act on the Owed
Charter Schools’ reconciliation requests, the Owed Charter Schools were nevertheless ultimately
paid. Accordingly, there is no act for this Court to compel Respondents to carry out. Without a
mandamus order, there can be no corresponding attorney fee award.
        The Owed Charter Schools’ claims for costs and other awards are denied. Although this
Court is dismayed at Respondents’ extreme delay in acting on the Owed Charter Schools’
reconciliation requests, and Respondents’ disregard of Richard Allen and KIPP, the Owed Charter
Schools have been paid, which is what the CSL intended.


                                              20
           In Richard Allen, this Court granted the charter school injunctive relief,
stating:

              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
           [School] Districts had a legal obligation to fully fund the
           Charter School for the 2014-[]15 school year, but failed to
           do so, and Respondents refused to reconcile payments due
           to the Charter School. 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 will result in greater harm to
           the Charter School than to the [School] Districts 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.



                                         21
            Id. at 78 (emphasis added). The injunction will restore the
            status quo between the Charter School and the [School]
            Districts. Accordingly, the Charter School is entitled to
            injunctive relief.
Richard Allen, 161 A.3d at 426-27; see also KIPP, 161 A.3d at 442-43.
            Here, because the remaining Charter Schools have no outstanding
reconciliation claims, there is no legal basis on which this Court may enjoin
Respondents.
            There being no genuine issues of material fact, and there being record
support that Respondents have the clear right to relief in their favor, Respondents’
Summary Relief Application is granted, and Petition Counts I through VI are
dismissed. The Charter Schools’ Summary Relief Application is denied.


                           III. Preliminary Objections
            Having determined that Respondents are entitled to summary relief,
Respondents’ Preliminary Objections are moot. See Leach v. Commonwealth, 118
A.3d 1271 (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. 1994) (summary relief may be
granted before disposing of outstanding preliminary objections).


                               IV. Conclusion
            Respondents’ Summary Relief Application is granted.           The Charter
Schools’ Summary Relief Application is denied.            Respondents’ Preliminary
Objections are overruled as moot.



                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         22
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Baden Academy Charter School,          :
Central Pennsylvania Digital Learning :
Foundation Charter School, Collegium :
Charter School, Hill House Passport    :
Academy Charter School, Manchester :
Academic Charter School, Pennsylvania :
Cyber Charter School, Penn Hills       :
Charter School for Entrepreneurship,   :
Pennsylvania Leadership Charter        :
School, Renaissance Academy Charter :
School, Urban Academy of Greater       :
Pittsburgh Charter School,             :
                          Petitioners  :
                                       :
                   v.                  :
                                       :
Commonwealth of Pennsylvania,          :
Department of Education, the Secretary :
of Education, Pedro A. Rivera          :
(In His Official Capacity),            :   No. 46 M.D. 2016
                          Respondents :


                                   ORDER

            AND NOW, this 8th day of June, 2018, the Application for Summary
Relief filed by the Commonwealth of Pennsylvania, Department of Education and
Pedro A. Rivera, in his official capacity as Secretary of Education (collectively,
Respondents), is GRANTED.
            The Application for Summary Relief filed by Baden Academy Charter
School, Central Pennsylvania Digital Learning Foundation Charter School,
Collegium Charter School, Hill House Passport Academy Charter School,
Manchester Academic Charter School, Pennsylvania Cyber Charter School, Penn
Hills Charter School for Entrepreneurship, Pennsylvania Leadership Charter School,
Renaissance Academy Charter School, and Urban Academy of Greater Pittsburgh
Charter School is DENIED.
           Respondents’ Preliminary Objections are overruled as moot.


                                   ___________________________
                                   ANNE E. COVEY, Judge
