                               [J-67-2016] [OAJC: Donohue, J.]
                        IN THE SUPREME COURT OF PENNSYLVANIA
                                      MIDDLE DISTRICT


POCONO MOUNTAIN SCHOOL                               :   No. 87 MAP 2015
DISTRICT,                                            :
                                                     :   Appeal from the Order of the
                         Appellant                   :   Commonwealth Court dated July 8,
                                                     :   2015, at No. 2052 CD 2014 Affirming
                                                     :   the Order of the Pennsylvania
                 v.                                  :   Department of Education dated October
                                                     :   23, 2014 at No. EDU-2014-SLAP-
                                                     :   000176.
PENNSYLVANIA DEPARTMENT OF                           :
EDUCATION, DIVISION OF SUBSIDY                       :
DATA AND ADMINISTRATION,                             :
                                                     :
                         Appellee                    :   ARGUED: May 11, 2016


                                      DISSENTING OPINION


JUSTICE BAER                                                    DECIDED: December 28, 2016
          I respectfully dissent on two grounds. First, regardless of the wisdom of such

legislative pronouncement, I interpret the plain language of Section 8327(b)(2) of the

Retirement Code, 24 Pa.C.S. § 8327(b)(2), as requiring the Department of Education to

withhold from the chartering school district’s appropriation an amount equal to the

charter school’s contributions to the Public School Employees Retirement System

(“PSERS”) that remain unpaid as of the date the appropriation would be paid to the

chartering school district.1 Contrary to the reasoning of the Opinion Announcing the

Judgement of the Court (“OAJC”), I do not view the revocation of the charter school’s

charter prior to the withholding of funds as altering the legal analysis because the


1
    The text of this section is set forth in its entirety infra, at 2-3.
“chartering school district” is the public school district that granted the charter, and that

status is not negated when the charter is subsequently revoked.

         Second, I disagree with the OAJC that Section 8327(b) of the Retirement Code

and Section 17-1729-A(i) of the Charter School Law (“CSL”) address the same subject

and must be read in pari materia to conclude that a school district is not liable for its

charter school’s unpaid PSERS contributions.2 As explained infra, I find Section 17-

1729-A, entitled “Causes for nonrenewal or termination [of a charter],” to be inapplicable

as liability for unpaid PSERS’s contributions does not arise from the closing of a charter

school, but rather from operating the school in the chartering school district during the

school year in which the charter was in effect. While I acknowledge the hardship that

the withholding of funds places upon school districts in this Commonwealth, I

nevertheless find that the unambiguous statutory language mandates our affirmance of

the Commonwealth Court’s decision, which upheld the Department of Education’s

deduction from the subsidy of the Pocono Mountain School District (“School District”).

         Expounding upon my first concern, I reiterate that Section 8327 of the Retirement

Code, entitled “Payments by employers” addresses payments to the Public School

Employees’ Retirement Fund (“Fund”).              Subsection (2) of Section 8327(b), entitled

“Deductions from appropriations,” is dispositive and provides, in its entirety, as follows:


                To facilitate the payments of amounts due from any charter school,
         as defined in Article XVII-A of the act of March 10, 1949 (P.L.30, No.14),
         known as the Public School Code of 1949, to the fund through the State
         Treasurer and to permit the exchange of credits between the State
         Treasurer and any employer, the Secretary of Education and the State
         Treasurer shall cause to be deducted and paid into the fund from any
         funds appropriated to the Department of Education for basic education of

2
    Section 17-1729-A(i) is set forth in full infra, at 5.



                               [J-67-2016] [OAJC: Donohue, J.] - 2
       the chartering school district of a charter school and public school
       employees' retirement contributions amounts equal to the employer and
       pickup contributions which a charter school is required to pay to the fund,
       as certified by the board, and as remains unpaid on the date such
       appropriations would otherwise be paid to the chartering school district or
       charter school. Such amounts shall be credited to the appropriate
       accounts in the fund. Any reduction in payments to a chartering school
       district made pursuant to this section shall be deducted from the amount
       due to the charter school district pursuant to the Public School Code of
       1949.

24 Pa.C.S. § 8327(b)(2).

       The OAJC likewise finds this language unambiguous, but reaches the opposite

conclusion. It relies, inter alia, upon the sentence directing the withholding of PSERS

contribution amounts that are “unpaid on the date such appropriations would otherwise

be paid to the chartering school district or charter school.” See Slip Op. at 20-21 (citing

24 Pa.C.S. § 8327(b)(2)). The OAJC reasons that because a charter school ceases to

exist upon revocation of its charter, no appropriations “would otherwise be paid” to the

charter school after the school has closed. Id. at 21. Further, it proffers, absent a

charter, the charter school has no “chartering school district.” Id. In a similar vein, the

OAJC reasons that the operative date under the statute is when appropriations would

be paid, thus, whether a school district is the chartering district under Section 8327(b)(2)

must be determined at the time the funds are withheld, which occurred after the charter

was revoked. Id. at n.13.

       I respectfully disagree. The School District is the “chartering school district” of

the Pocono Mountain Charter School (“Charter School”) pursuant to Section 8327(b)(2)

because it authorized the charter and the PSERS contributions were due for a period

during which the Charter School was operating under that charter. See West Chester

Area Sch. Dist. v. Collegium Charter Sch., 812 A.2d 1172, 1183 (Pa. 2002) (describing

“chartering school district” as the district that authorized the charter, as opposed to the


                            [J-67-2016] [OAJC: Donohue, J.] - 3
other school districts who did not authorize the charter, but, nevertheless, have a

financial obligation to the charter school because their students attend the charter

school). The subsequent revocation of the charter has no bearing on the issue as

Section 8327(b)(2) does not direct a deduction only where there is a finding that the

charter school currently remains in existence. Thus, the revocation of the charter in

June of 2014, prior to when the deduction was made in August of 2014, is

inconsequential for purposes of applying Section 8327(b).3

       Although I agree with the OAJC’s categorization that “[t]he operative date of

Section 8327(b)(2) is the date the appropriations would be paid to the school district, not

the date of the missed PSERS payments,” Slip Op. at 21 n.13, I find that the “operative

date” clause of the statute modifies the “amount” to be deducted, and not the “entity”

from which the funds are withheld. The statutory language directs that the amount to be

deducted is the amount of unpaid PSERS contributions existing on the date the

appropriation would otherwise be paid to the charting school district. The entity subject

to the deduction is clearly the “chartering school district.” The statute requires only that

the Retirement Board certify to the Department that the charter school failed to make

required payments to the Fund and was determined to be delinquent, and the

Department must then deduct the amount due from the subsidy of the chartering school

3
  Based on its conclusion that Section 17-1729-A(i) prohibits the deduction in this case,
the OAJC does not address the School District’s contention that Section 8327(b)(2) only
permits the deduction of funds from the chartering school district if such amount can be
recouped from the charter school. Slip Op. at 22 n.14. As I would conclude that
Section 17-1729-A(i) is inapplicable, I would reach the School District’s contention in
this regard and reject it. While it may be good policy to do so, Section 8327(b) does not
in any way condition the subsidy intercept on whether the amount due to be paid from
the chartering school district’s subsidy can be recovered by the school district through
its own withholding of payments from the charter school. The last sentence of Section
8327(b)(2) permits recoupment, but does not make it a prerequisite to the deduction of
funds from the chartering school district’s basic education subsidy.



                           [J-67-2016] [OAJC: Donohue, J.] - 4
district and pay the Fund. As the Commonwealth Court below held, “[n]owhere in the

language of Section 8327 does it explicitly or implicitly indicate that a chartering school

district is cleared from having to pay a deficient payment if the charter school ceases to

operate as one.” Pocono Mountain Sch. Dist. v. Pa. Dep’t of Educ., 2052 C.D. 2014,

2015 WL 5457139, at *3 (Pa. Cmwlth. July 8, 2015) (unpublished memorandum).

       Regarding my second point of dissension, I do not believe that Section 17-1729-

A(i) of the CSL and Section 8327(b)(2) address the same subject as the former sets

forth a payment mechanism for PSERS contributions, while the latter addresses the

closure of charter schools. Thus, I respectfully dispute the OAJC’s assertion that the

two statutes should be read in pari materia to preclude the deduction in this case.

       Section 17-1729-A, entitled “Causes for nonrenewal or termination,” states at

subsection (i):


               When a charter is revoked, not renewed, forfeited, surrendered or
       otherwise ceases to operate, the charter school shall be dissolved. After
       the disposition of any liabilities and obligations of the charter school, any
       remaining assets of the charter school, both real and personal, shall be
       distributed on a proportional basis to the school entities with students
       enrolled in the charter school for the last full or partial school year of the
       charter school. In no event shall such school entities or the
       Commonwealth be liable for any outstanding liabilities or obligations of the
       charter school.
24 P.S. § 17-1729-A(i).

       The OAJC emphasizes the last sentence of Section 17-1729-A(i), providing that

school entities are not liable for outstanding obligations of the charter school, while

discounting the context of the provision as a whole, which speaks to the closure of a

charter school and the school district’s resultant obligations or lack thereof. While this

provision of the CSL was enacted later in time than Section 8327(b) of the Retirement

Code, I am unpersuaded that the General Assembly intended for Section 17-1729-A(i)



                           [J-67-2016] [OAJC: Donohue, J.] - 5
to restrict application of the PSERS payment mechanism set forth in Section 8327(b)(2).

Had the legislature possessed such intent, it likely would have achieved such goal by

amending the Retirement Code, which governs PSERS payments, rather than adding a

sentence to a provision of the CSL dealing with charter school closings. In other words,

when the General Assembly enacted Section 17-1729-A(i), it did not provide any explicit

or implicit intention that it should prevail over Section 8327(b)(2). Here, because the

unpaid PSERS payments did not arise from the closing of the Charter School, but rather

from its operation during a period of time when the charter was in effect, I would not

apply Section 17-1729-A(i) to the facts presented.

       To the extent there is a conflict between Section 17-1729-A(i) of the CSL and

Section 8327(b) of the Retirement Code, I would find that the specific provision directing

deductions from chartering school district’s subsidies for unpaid PSERS contributions

controls over the general provision absolving school districts of liability for charter

school obligations. See 1 Pa.C.S. § 1933 (“Particular controls general”) (providing that

“[w]henever a general provision in a statute shall be in conflict with a special provision in

the same or another statute, the two shall be construed, if possible, so that effect may

be given to both. If the conflict between the two provisions is irreconcilable, the special

provisions shall prevail and shall be construed as an exception to the general provision,

unless the general provision shall be enacted later and it shall be the manifest intention

of the General Assembly that such general provision shall prevail.”).

       Accordingly, I conclude that the Commonwealth Court correctly interpreted the

plain language of Section 8327(b)(2) and upheld the Department of Education’s

deduction from the Charter School’s subsidy.

       Justice Dougherty joins.




                           [J-67-2016] [OAJC: Donohue, J.] - 6
