Bell, B. v. Wilkinsburg SD, Aplt.

[J-15-2022] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BETTY BELL, AN ADULT INDIVIDUAL, : No. 25 WAP 2021
AND PROPEL SCHOOLS, D/B/A PROPEL :
CHARTER SCHOOL - HOMESTEAD, : Appeal from the Order of the
PROPEL CHARTER SCHOOL - SUNRISE, : Commonwealth Court entered April
D/B/A PROPEL BRADDOCK HILLS, : 19, 2021 at No. 1259 CD 2019,
PROPEL CHARTER SCHOOL - PITCAIRN, : reversing the Order of the Court of
AND PROPEL CHARTER SCHOOL - : Common Pleas of Allegheny County
HAZELWOOD, : entered August 23, 2019 at No. GD
: 18-12950 and remanding.
Appellees :
: ARGUED: March 10, 2022
:
v. :
:
:
WILKINSBURG SCHOOL DISTRICT, :
:
Appellant :
DISSENTING OPINION
JUSTICE MUNDY DECIDED: SEPTEMBER 29, 2022
Because I would affirm the Commonwealth Court based on the clear and
unambiguous language of 22 Pa. Code § 23.2, I dissent.
The regulatory provision at issue provides the following:
The means of pupil transportation to and from school, whether
furnished by school conveyances, private conveyances or
common carriers, and contracts and agreements relating
thereto, shall be subject to approval by the Department [of
Education (Department)].
22 Pa. Code § 23.2.
As correctly noted by the majority, our Court is tasked with determining the
meaning of “subject to approval by the Department[,]” as the parties dispute whether
Section 23.2 requires a school district to obtain approval from the Department prior to
implementing the means of and contracts for transportation plans for school students.
Maj. Op. at 1, 16. The majority concludes Section 23.2 is ambiguous because the
definition of “approval” does not contain a time frame for when an act must be approved,
the phrase “subject to approval by the Department” itself otherwise does not
“unambiguously resolve the question of when the Department is required to approve a
change[,]” and both parties’ interpretations are reasonable. Id. at 16-17 (emphasis in
original). In my view, however, the regulation is not ambiguous. The definition of the
phrase “subject to,” which the majority does not address, in conjunction with the plain
language of Section 23.32 of the regulation that governs a school district’s submission of
claims to the Department for reimbursement, unambiguously mandates Department
preapproval of pupil transportation plans.
First, the common and widely accepted definition of the phrase “subject to,” when
used in the context of obtaining permission from an authoritative body, is “dependent on
something else to happen or be true[,]” with the following example offered: “The sale
of the property is subject to approval by the city council.” Subject to, MERRIAM-
WEBSTER’S DICTIONARY ONLINE, available at https://www.merriam-
webster.com/dictionary/subject%20to (last visited July 22, 2022) (emphasis omitted).
See also BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “subject” as, inter alia,
“[d]ependent on or exposed to (some contingency); esp., being under discretionary
authority” and giving the following example: “funding is subject to the board’s approval”).
Applying these definitions instantly, it is evident that approval is the “something else” or
“contingency” that is required to happen before school districts can implement pupil
transportation plans and related contracts and agreements. Stated differently, a school
district can only implement or alter a pupil transportation plan and related contracts and
[J-15-2022] [MO: Todd, J.] - 2
agreements after the plan has first been approved by the Department. See
Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1027
(Pa. 2018) (providing, when ascertaining plain meaning, courts must examine statutory
text in context and give words and phrases “their common and approved usage.”) (internal
citation omitted).
Second, while the majority concludes Department approval is accomplished
through reimbursement, Section 23.2 contains no language whatsoever about
reimbursement, let alone language that approval somehow only occurs through or after
reimbursement by the Department at the end of the fiscal year. See 22 Pa. Code § 23.2.
Section 23.2 is also not located in the reimbursement section of the regulation, but instead
in the preliminary provisions section that precedes the reimbursement provisions set forth
in Sections 23.31-23.40. Even more, Sections 23.31-23.40 contain no language that
Department approval of a pupil transportation plan is conditioned upon or completed
through reimbursement. See 22 Pa. Code § 23.31-23.40. Instead, the plain language
of Section 23.32, which governs reimbursement submissions, suggests the opposite, i.e.,
that Department approval of a transportation plan must occur before reimbursement.
Section 23.32 states: “[C]laims for reimbursement shall cover allowable district
expenditures for approved pupil transportation . . . during the proceeding year.” 22 Pa.
Code 23.32 (emphasis added).1 This provision clearly demonstrates that school districts
will only be reimbursed for a transportation plan that has already been approved by the
Department. Because Sections 23.2 and 23.32 must be construed consistently and in
conjunction with each other, the regulation’s plain language unambiguously requires
1 Section 25-2541 of the Public School Code similarly states the following: “School
districts shall be paid by the Commonwealth for every school year on account of pupil
transportation which, and the means and contracts providing for which, have been
approved by the Department of Education.” 24 P.S. § 25-2541(a) (emphasis added).
[J-15-2022] [MO: Todd, J.] - 3
school districts within our Commonwealth to first obtain approval from the Department
before implementing and/or altering a pupil transportation plan. See 1 Pa.C.S. §1932
(providing “[s]tatutes or parts of statutes are in pari materia when they relate to the same
persons or things or to the same class of persons or things” and “shall be construed
together, if possible, as one statute[;]” 1 Pa.C.S. § 1921(a); § 1502(a)(1)(ii) (requiring
courts to give effect to all provisions when ascertaining a regulation’s plain meaning).
Even if Section 23.2 were ambiguous, I disagree with the majority’s reasons for
reversal. Primarily, I am of the opinion that interpreting Section 23.2 as not imposing a
prior approval requirement of pupil transportation plans would lead to an absurd and
unreasonable result concerning the safety of charter school students. See 1 Pa.C.S.
§ 1922; Holland v. Marcy, 883 A.2d 449, 456 (Pa. 2005) (concluding our courts should
avoid construing a statute in a manner that would lead to an absurd or unreasonable
result). A plan not approved prior to implementation could jeopardize the safety of charter
school students by exposing them to unsafe conditions and hazards, i.e., being
unsupervised on public buses, walking long distances to public bus stops, and being
unprotected from traffic conditions, yet be unchecked for the entire school year before
being “approved” through reimbursement. In my view, the State Board of Education did
not intend such consequences when promulgating the regulation. See 1 Pa.C.S. §
1921(c)(6).
Thus, as I would affirm the holding of the Commonwealth Court, I respectfully
dissent.
[J-15-2022] [MO: Todd, J.] - 4