Open PA Schools v. Dept. of Ed.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Open PA Schools, Jamie Walker, :
Tara Adams, James Holt, Felix P. :
Mummolo, Stacey McShane, Jaret :
Matthew Gale, Patrice Silver, Joe :
Dettore, Sr., Chris Brill, and Beth :
Rosica, :
Petitioners :
:
v. :
:
Department of Education of the :
Commonwealth of Pennsylvania, :
Pedro A. Rivera, Secretary of Education :
of the Commonwealth of Pennsylvania, :
Central Bucks School District, :
Downingtown Area School District, :
Oley Valley School District, :
Unionville-Chadds Ford School District, :
Perkiomen Valley School District, :
Great Valley School District, and :
West Chester School District, : No. 504 M.D. 2020
Respondents : Argued: December 9, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 14, 2021
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
This matter concerns a Petition for Review (Petition) brought pursuant
to the Declaratory Judgments Act2 by Petitioners, who are Open PA Schools, “an
unincorporated association consisting of over one hundred parents of children
attending public schools throughout the Commonwealth” and 10 individual parents
who opposed the decisions of their local school districts to begin the 2020-21 school
year on a largely or entirely remote learning basis in light of the COVID-19
pandemic. Petition at 5-12. Petitioners assert that the districts’ actions violate
Section 1501 of the Public School Code of 19493 (School Code), which states that
all public kindergarten, elementary, and secondary schools “shall be kept open each
school year for at least one hundred eighty (180) days of instruction for pupils.” 24
P.S. § 15-1501.
Currently before this Court for disposition are Petitioners’ Application
for Expedited Summary Relief with regard to their Petition and various Preliminary
Objections filed by Respondents, who are the Commonwealth’s Department and
Secretary of Education (Department) and seven suburban school districts in the
Philadelphia area in which the individual Petitioners are parents.4 Upon review, we
sustain Respondents’ objections on the basis of standing, dismiss Respondents’
additional preliminary objections as moot, deny Petitioners’ Application for
Expedited Summary Relief, and dismiss Petitioners’ Petition without prejudice.
2
42 Pa.C.S. §§ 7531-7541.
3
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1–101–27–2702.
4
The responding school districts are: Central Bucks School District, Downingtown Area
School District, Great Valley School District, Oley Valley School District, Perkiomen Valley
School District, Unionville-Chadds Ford School District, and West Chester Area School District.
2
I. Factual and Procedural Background
On March 27, 2020, at the onset of the COVID-19 pandemic, the
General Assembly enacted Section 1501.8(b)(1) of the School Code, effective
immediately, which stated in pertinent part: “The requirement under [S]ection 1501
requiring all school entities to be kept open each school year for at least one hundred
eighty (180) instructional days is waived immediately.” 24 P.S. § 15-1501.8(b)(1).5
Applicable only to the 2019-20 school year, the legislation also authorized the
Department to close school buildings and “[i]ncrease the number of flexible
instructional days that school entities may institute under [Section 1506 of the
School Code6] to a number of flexible instructional days determined by the Secretary
of Education during the 2019-20 school year.” 24 P.S. § 15-1501.8(a) & (b)(2)(i),
(ii).
The General Assembly did not renew Section 1501.8 for the 2020-21
school year, but on June 5, 2020, it enacted Section 1501.9, which stated: “Beginning
in the 2020-[21] school year, the minimum number of school days under section
1501 shall apply notwithstanding any order issued under a declaration of disaster
emergency under 35 Pa.C.S. § 7301(c) (relating to general authority of Governor).”
24 P.S. § 15-1501.9.7 Thus, the minimum requirement of 180 school days has never
been altered for the 2020-21 school year; at issue here is whether instruction may
occur remotely or whether it must be conducted in person at school buildings.
5
Section 1501.8 was added by Section 4 of the Act of March 27, 2020, P.L. 62.
6
Section 1506(h)(2) was added by Section 1 of the Act of July 2, 2019, P.L. 396. It became
effective on Sept. 3, 2019, and allows school districts to provide up to five “flexible instructional
days” per school year in which schools may teach students remotely when a school building cannot
be opened due to hazardous weather, building damage, or “a disease epidemic.” 24 P.S. § 15-
1506(h)(2).
7
Section 1501.9 was added by Section 10 of the Act of June 5, 202, P.L. 223.
3
Shortly thereafter, during the summer of 2020, the Department issued
an official policy (Policy), available on its website, stating that it “recognizes that
school leaders face many difficult decisions and challenges in planning for the start
of the 2020-[21] school year and determining how to provide students with a
minimum of 180 days of instruction and 900 hours of instruction at the elementary
level and 990 hours of instruction at the secondary level.” Department’s COVID-
19 Policy for 2020-21 School Year.8 The Policy cited Section 520.1 of the School
Code (“Temporary emergency provisions”), which states:
(a) Whenever an emergency shall arise which the board of
school directors of any school district in the performance
of its duties could not anticipate or foresee, and which
emergency shall result in any such school district being
unable to provide for the attendance of all pupils during
the prescribed length of school days, number of days per
week, or usual hours of classes, it shall be found as a fact
by the school directors of any school district and so
recorded on the minutes of a regular or special meeting of
such board and certified to the Superintendent of Public
Instruction, and such board of school directors, subject to
the approval of the Superintendent of Public Instruction,
shall have power to put into operation in such school
district any one or more of the temporary provisions
hereinafter provided for, but in no event shall such
temporary provisions remain in effect for a period of more
than four years after they are first put into effect.
(b) Subject to the foregoing provisions, any board of
school directors may:
8
See https://www.education.pa.gov/Schools/safeschools/emergencyplanning/COVID-
19/SchoolReopeningGuidance/ReopeningPreKto12/Pages/InstructionalHours.aspx (last visited
Jan. 13, 2021).
4
(1) Keep the schools of the district in session such days
and number of days per week as they shall deem necessary
or desirable, but the provisions of this act requiring a
minimum of one hundred eighty (180) session days as a
school year shall not be affected thereby.
(2) Reduce the length of time of daily instruction for
various courses and classes.
(c) Any school district, by invoking the powers herein
granted, shall not thereby forfeit its right to reimbursement
by the Commonwealth or other State[]aid as otherwise
provided for by this act.
24 P.S. § 5-520.1.9 The Policy promulgated by the Department in the summer of
2020 set forth the Department’s conclusion that the COVID-19 pandemic constitutes
an emergency as contemplated by Section 520.1. See Policy (“[The Department]
considers the World Health Organization-declared Coronavirus disease (COVID-
19) global pandemic an emergency as contemplated by [S]ection 520.1.”). As such,
school districts across the Commonwealth were authorized, upon Departmental
approval, to enact temporary provisions for the 2020-21 school year, including
arrangements for instruction in “a remote learning environment” in excess of the five
days of flexible instructional days permitted by Section 1506. See Policy. The
Policy further states:
Additionally, Chapter 11 [of the Department’s
regulations] requires that “instruction time for students
shall be time in the school day devoted to instruction and
instructional activities provided as an integral part of the
school program under the direction of certified school
employees.” 22 Pa. Code § 11.2 (emphasis added).
Although instruction may be provided in synchronous or
9
Section 520.1 was added by Section 1 of the Act of January 14, 1952, P.L. (1951) 1940.
5
asynchronous formats,[10] to count as instruction—whether
in the classroom or remotely—students’ instructional
activities must be under the direction of a certified school
employee, unless otherwise permitted [by Section 1724-A
of the School Code11].
Any school entity that includes time spent in a remote
learning environment toward instructional time
requirements must implement a system that accurately
tracks out of school instructional time similar to
attendance in the school building.
Policy (emphasis in original).
In response to the Department’s Policy, prior to the beginning of the
2020-21 school year, school districts across the Commonwealth, including the
responding school districts in this matter, surveyed and worked with local school
and health personnel and student families to determine opening plans, ranging from
100% remote learning through hybrid models and 100% in-person instruction. See,
e.g., Affidavit of Dr. Daniel F. Goffredo, Ed.D., Superintendent of Great Valley
School District (GVSD); Exhibit A to GVSD Response to Petition. Like many
school districts across the Commonwealth, the responding school districts decided
to open the school year providing fully or almost fully remote learning based on,
inter alia, local and county health department guidance. Id.Petitioners filed the subject Petition on September 8, 2020, invoking
this Court’s original and ancillary jurisdiction and asserting that the Department’s
10
Synchronous learning in a remote teaching setting occurs when the teacher and students
are together and working interactively at the same time, as in a live online class with sound and
video presence; asynchronous learning in a remote teaching setting occurs when the teacher sets a
learning path or plan and students work on their own time and at their own pace. See
https://www.brynmawr.edu/blendedlearning/asynchronous-vs-synchronous-learning-quick-
overview (last visited Jan. 13, 2021).
11
Section 1724-A was added by Section 1 of the Act of June 19, 1997, P.L. 225.
6
Policy allowing the responding districts’ determination to begin the school year in a
largely or entirely remote learning capacity violates the School Code’s requirement
that school districts provide 180 school days in the 2020-21 school year, that the
Policy should be declared void, and that fully remote learning days should not be
counted towards the 180-day requirement. Petition at 4, 13-14. On September 9,
2020, Petitioners filed an Application for Expedited Summary Relief asserting that
there are no material facts in dispute, that the case presents a pure question of law,
and that with the school year already started or about to start, any delay in issuing a
decision will cause irreparable harm to all of the parties. Application for Expedited
Summary Relief, 9/9/20, ¶¶ 3-5 & Prayer for Relief.12
In a brief in support of their Application, Petitioners argue that the 180-
day requirement is mandatory even in emergencies, requires in-person learning, and
can only be altered by the General Assembly. Petitioners’ Brief in Support of
Application for Expedited Summary Relief at 1-3, 8, 12 (citing Scanlon v. Mt. Union
Area Bd. of Sch. Dirs., 415 A.2d 96 (Pa. Cmwlth. 1980)). Petitioners acknowledge
that the School Code does not define “open . . . for the purposes of instruction” as
that language appears in Section 1501. However, Petitioners posit that “when the
School Code is read as a whole[,] it is clear that the legislature intended that schools
must provide [] in person, not remote, instruction.” Petitioners’ Brief in Support of
Application for Expedited Summary Relief at 8.
12
Petitioners cite Pennsylvania Rule of Appellate Procedure 1532(b): “At any time after
the filing of a petition for review in an appellate or original jurisdiction matter, the court may on
application enter judgment if the right of the applicant thereto is clear.” Application for Expedited
Summary Relief at 1 (citing Pa.R.A.P. 1532(b)). Summary relief is “similar to summary judgment
under the Pennsylvania Rules of Civil Procedure, in that the requested relief is only appropriate
where there are no disputed issues of material fact and it is clear that the applicant is entitled to the
requested relief under the law.” See Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017).
7
Petitioners read Section 1506, which enables districts to provide up to
five flexible instructional days per year when circumstances, including a “disease
epidemic,” “prevent a school building from opening,” as meaning therefore that
“open . . . for the purposes of instruction” as set forth in Section 1501 must mean
that schools are physically open and providing in-person instruction in order for days
to count towards the 180-day requirement. Petitioners’ Brief in Support of
Application for Expedited Summary Relief at 9-10. Petitioners reason that despite
the current circumstances, allowing districts to exceed the five flexible instruction
days permitted by Section 1506 renders Section 1506 superfluous, which could not
have been the General Assembly’s intent. Id. at 11.
Petitioners challenge the Department’s position that Section 520.1 of
the School Code confers upon the Department discretion and authority to allow
districts to conduct largely or entirely remote teaching at the outset of the 2020-21
school year in light of the COVID-19 pandemic and to have those days count
towards the 180-day minimum requirement. Petitioners’ Brief in Support of
Application for Expedited Summary Relief at 3. Petitioners aver that Section 520.1,
read strictly, allows districts only to extend the school week or shorten the school
day, and that the Department’s Policy therefore violates the School Code. Id. at 1-
2, 5, 11-13.
Petitioners cite Scanlon, in which a teacher strike during the 1978-79
school year deprived the district in question of 22 school days. Petitioners’ Brief in
Support of Application for Expedited Summary Relief at 14-15 (citing Scanlon, 415
A.2d at 97). Once the strike ended, the district sought to minimize that school year
to 165 days of in-person instruction. Scanlon, 415 A.2d at 97. The Department
challenged the district’s plan as violative of Section 1501’s mandatory 180-day
8
requirement and this Court agreed, stating that despite the strike and the lost school
days, holding a 180-day school year was not impossible and that deviation from the
180-day requirement is “allowed only by the legislature.” Id. at 99.
Here, Petitioners argue that the General Assembly acted in March 2020
when it permitted remote learning for the remaining duration of the 2019-20 school
year. They reason that the legislature’s failure to repeat that action for the 2020-21
school year renders the Department’s decision to do so on its own invalid as an action
outside its statutory authority. Petitioners’ Brief in Support of Application for
Expedited Summary Relief at 16-18.
Petitioners state that they do not call for immediate cessation of remote
learning or that schools must physically open; they only seek declaratory judgment
to the effect that remote learning days will not count towards the 180-day
requirement and that students will receive at least 180 days of in-person instruction
during the 2020-21 school year. Petitioners’ Brief in Support of Application for
Expedited Summary Relief at 3. They ask for summary relief so that in the event
they are successful in this matter, school districts will have “sufficient time to revise
their school calendars to make up the fully remote instruction days with in[-]person
instruction required by the School Code” and also to “provide the General Assembly
time to pass necessary legislation should it deem necessary, just as it did in March
of this year.” Id. at 7.
Respondents variously filed answers to Petitioners’ Application for
Expedited Summary Relief and briefs in support thereof, followed shortly by
preliminary objections and briefs in support thereof. Respondents collectively raised
numerous challenges to Petitioners’ Petition, including lack of standing, failure to
exhaust administrative remedies, lack of subject matter jurisdiction, failure to join
9
necessary and indispensable parties, and legal insufficiency. Petitioners filed
answers and a brief in opposition to Respondents’ preliminary objections, generally
denying Respondents’ various assertions, and a reply brief to Respondents’
challenges to Petitioners’ Application for Expedited Summary Relief. This Court
issued a notice setting the matter for en banc oral argument on December 9, 2020.
See Notice, 11/9/20. Argument was conducted remotely on that date and this matter
is now ripe for determination.
II. Discussion – Preliminary Objections to Standing
Respondents’ preliminary objections include a challenge to Petitioners’
standing to bring this action.13 See, e.g., Preliminary Objections of GVSD at 5. Our
Supreme Court addressed the question of when a party has demonstrated that it is
sufficiently “aggrieved” by a governmental action to establish standing in William
Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975)
(plurality).14 There, nine operators of commercial parking facilities and a number of
individual Pittsburgh residents and taxpayers challenged a City ordinance imposing
a 20% tax on all commercial parking in the City. Id. at 275. The City filed
preliminary objections contending, inter alia, that none of the would-be plaintiffs
13
Our review of preliminary objections is limited to the pleadings (here, Petitioners’
Petition for Review) and proper attachments. Scarnati v. Dep’t of Env’t Prot., 220 A.3d 723, 728
(Pa. Cmwlth. 2019). Preliminary objections are deemed to admit all well-pled material facts and
any inferences reasonably deduced therefrom. Id. This Court, however, is not bound by legal
conclusions, unwarranted inferences from facts, argumentative allegations, or expressions of
opinion within a petition for review. Id.14
William Penn Parking Garage is a plurality opinion as to its treatment of whether a
pecuniary interest is required to assert standing in the context of a taxpayer challenge. See id. at
295-96 (Eagen, J., concurring, with Jones, C.J., & Pomeroy, J.; Nix, J., concurring in result).
Nevertheless, the opinion’s presentation of the principles of standing has been widely cited in cases
not concerning or limited to taxpayer standing. See, e.g., Johnson v. American Standard, 8 A.3d
318 (estate executors had standing to challenge constitutionality of statute limiting successor
liability for asbestos-related injuries and deaths).
10
were aggrieved by the ordinance so as to establish taxpayer standing. Id. The trial
court found in favor of the City, this Court reversed, and our Supreme Court granted
the City’s petition for allowance of appeal. Id. at 275-76.
On the question of standing, the Court set forth and discussed at length
the principles at issue for a party seeking to challenge a government action,
concluding that “one who seeks to challenge governmental action must show a direct
and substantial interest. . . . In addition, he must show a sufficiently close causal
connection between the challenged action and the asserted injury to qualify the
interest as immediate rather than remote.” Id. at 286 (internal quotation marks and
footnotes omitted).
Our Supreme Court has further explained that standing is a threshold
matter and that “a controversy is worthy of judicial review only if the individual
initiating the legal action has been ‘aggrieved.’ This principle is based upon the
practical reason that unless one has a legally sufficient interest in a matter, that is, is
‘aggrieved,’ the courts cannot be assured that there is a legitimate controversy.”
Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659-60 (Pa. 2005)
(internal cites omitted). “The keystone to standing in these terms is that the person
must be negatively impacted in some real and direct fashion. . . . [I]t is not sufficient
for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens
in procuring obedience to the law.” Id. at 660 (internal quotation marks and citation
omitted).
To have standing, a party must plead facts which establish a direct,
immediate and substantial injury. Pa. Chiropractic Fed’n v. Foster, 583 A.2d 844,
851 (Pa. Cmwlth. 1990). Preliminary objections to a petition are properly sustained
for lack of standing where the petition “does not allege expressly or by necessary
11
implication that [the petitioner] is directly, immediately, or substantially affected by
[the challenged provision].” Id. at 851. If a petition contains only “general
averments” or allegations that “lack the necessary factual depth to support a
conclusion that the [petitioner] is an aggrieved party,” standing will not be found.
Pa. State Lodge, Fraternal Ord. of Police v. Dep’t of Conservation & Nat. Res., 909
A.2d 413, 417 (Pa. Cmwlth. 2006) (citing William Penn Parking Garage).
Moreover, the harm asserted must be actual; an allegation of only a potential harm
does not give rise to standing to bring a lawsuit. Id.Here, Respondents variously assert that Petitioners fail to plead
sufficient and specific harm or injury to support standing for either the individual
Petitioners or Open PA Schools. GVSD states that the Petition “includes no factual
allegations of any harm” to Petitioners and “simply asserts an interest in seeing that
[Respondents] follow the law—an interest shared by all citizens of the
Commonwealth.” Preliminary Objections of GVSD at 5. West Chester Area School
District (WCASD) adds: “Other than the conclusory allegation that Petitioners have
‘suffered direct, immediate, and substantial injury,’ the Petition is devoid of any
facts in support of this legal conclusion. . . . Nowhere does the Petition assert how
the continuation of virtual learning, pursuant to the [Department’s Policy], will cause
the individual Petitioners any substantial, direct, and immediate harm or impact.”
Preliminary Objections of WCASD at 12-13.15
Petitioners responded in their various answers to Respondents’
preliminary objections that their “interests surpass those of other citizens because
15
Concerning Open PA Schools, WCASD states that an association “has standing only to
the extent that one or more independent members is suffering immediate or threatened injury as a
result of the action challenged.” Preliminary Objections of WCASD at 13 (citing Pa. Med. Soc’y
v. Dep’t of Pub. Welfare, 39 A.3d 267, 278 (Pa. 2012)).
12
they are parents of children impacted by the [Policy] and who have been robbed of
their entitlement to at least 180 days of in-person instruction” from Respondents.
See, e.g., Petitioners’ Answer to the Preliminary Objections of DASD at 9-10.
Petitioners’ brief argues similarly that Petitioners “are not the same as ordinary
citizens, they are parents of children who are directly and immediately impacted by
the school districts[’] refusal to afford public school children the benefit of 180 days
of in person instruction.” Petitioners’ Brief in Support of Responses in Opposition
to Respondents’ Preliminary Objections at 10.
However, despite Petitioners’ assertions in their subsequent responsive
pleadings and brief, the determination as to standing must be made solely on their
Petition and any relevant attachments or exhibits. Scarnati v. Dep’t of Env’t Prot.,
220 A.3d 723, 728 (Pa. Cmwlth. 2019). The Petition as drafted and filed by
Petitioners lists the individual Petitioners as parents of students in the responding
school districts and states that Open PA Schools “brings its claims as a representative
on behalf of at least one of its members who has suffered direct, immediate, and
substantial injury.” Petition at 5. However, even assuming arguendo that Petitioners
have been more directly impacted than ordinary citizens because they are parents of
children in the responding school districts,16 the Petition does not specifically assert,
as it must, that any of the individually listed Petitioners sustained any harm; the only
implication of actual harm is the Petition’s assertion that although “[p]arents voted
overwhelmingly in favor of either full [in-person] learning or a form of hybrid
16
In opposition, Downingtown Area School District (DASD) asserts that Petitioners have
“alleged no unique interest that is different than that of all the other parents of the millions of
Pennsylvania school children” affected by the Department’s decision to allow districts to provide
largely or entirely remote learning at the outset of the 2020-21 school year. Preliminary Objections
of DASD at 6.
13
learning,”17 the responding school districts opened the 2020-21 school year
conducting largely or entirely remote learning. Id. at 11-12. The individual
Petitioners never actually asserted in the Petition itself that the districts’ actions have
caused them to be harmed or aggrieved. As to Petitioners’ assertion that Open PA
Schools represents members who have sustained “direct, immediate, and substantial
injury,” the Petition fails to specify any actual or even potential harm to the group
or its members. See William Penn Parking Garage; see also Pittsburgh Palisades
Park; Pa. State Lodge; Pa. Chiropractic Fed’n. Petitioners’ assertions, therefore,
either state no harm at all or are the kind of “general averments” found insufficient
to achieve standing in Pennsylvania State Lodge.
Additionally, Petitioners have conflated the “harm” that is needed to
have standing with the “harm” that must be demonstrated in order to obtain an
17
In support of their position, Petitioners appended as exhibits copies of surveys asserted
to be from the Methacton School District (which is not a party to this litigation) and Unionville-
Chadds Ford School District. Exhibit A is an unattributed online survey released to 5,684
Methacton School District parents and guardians listed as primary student contacts; 1691
responses were recorded as of June 3, 2020, for a 29.7% response rate. The survey questioned the
parents’ satisfaction with remote learning from March through June of the 2019-20 school year
and found that while 66% of responding parents were satisfied with remote learning (Question 2),
if a return to in-person learning was found safe and permitted by the Commonwealth, 82% would
allow their children to return to school and 70% would prefer in-person learning if given the choice
for the 2020-21 school year (Questions 5 & 6).
Exhibit B is a series of undated, unattributed, and unexplained pie charts that Petitioners
assert represent the “first choices” of parents and families in the Unionville-Chadds Ford School
District. The charts include “brick and mortar” and remote options, but also undefined “UCFVA,”
“Scaffold,” and “AB/CD/EF” options. In some instances, “brick and mortar” is the first choice,
as for 42.5% of parents and families with high school students, over 12.48% of the same group
selecting remote learning as the first choice; but the following pie chart, also purportedly
representing the first choices concerning high school students, suggests figures of 22.16% selected
remote learning over 13.32% selecting brick and mortar learning. Petitioners assert that “[o]ver
75% of the parents in the Unionville-Chadds Ford School District indicated they preferred some
form of in-person school to start the year” but do not explain how Exhibit B supports this statement.
Petition at 11 & n.6.
14
injunction, a lower standard in which mere violation of a law may be sufficient. In
Pennsylvania Public Utility Commission v. Israel, 52 A.2d 317 (Pa. 1947), our
Supreme Court adopted the opinion and order of the Dauphin County Court of
Common Pleas18 holding that for purposes of injunctive relief, a violation of a statute
was, in itself, irreparable harm or injury. See id. at 321-22. Israel continues to be
cited for the proposition that a continuing violation of a statute is all the harm that
must be shown by the moving party seeking a preliminary injunction. See, e.g., Wolk
v. Lower Merion Sch. Dist., 228 A.3d 595, 611 (Pa. Cmwlth. 2020) (citing Israel for
premise that in injunction context, “[s]tatutory violations constitute irreparable harm
per se, which relieved the trial court of undertaking the balance of the harm
inquiry”).
The availability of “per se harm” in the injunction setting appears to be
asserted here by analogy in Petitioners’ position that if this Court finds that the
Department and the responding districts’ actions in beginning the 2020-21 school
year with largely or entirely remote teaching violate the School Code, then
declaratory judgment in Petitioners’ favor is warranted. See Petition. However, the
standard of harm required to achieve standing requires a would-be plaintiff to show
more: a direct, substantial, immediate interest and sufficient averment of facts
showing the party is aggrieved. William Penn Parking Garage; see also Pittsburgh
Palisades Park; Pa. State Lodge; Pa. Chiropractic Fed’n. The Petition, as drafted,
fails to assert actual or even probable harm sufficient to meet the correct standard.
Accordingly, Petitioners have not established standing to bring their cause of action.
We therefore grant Respondents’ Preliminary Objections for lack of standing,
18
The Dauphin County Court, at that time, was known as the “Commonwealth Court”
because it had been designated a Court of Common Pleas “of a special class” with statewide
jurisdiction to hear all appeals from state agency decisions as well as original jurisdiction actions
instituted by a state agency. Israel, 52 A.2d at 323-24.
15
dismiss Respondents’ additional Preliminary Objections as moot, deny Petitioners’
Application for Expedited Summary Relief, and dismiss the Petition without
prejudice.19
We do not conclude as a matter of law that Petitioners are unable to
allege sufficient facts to establish standing under this analysis. Therefore, our
dismissal of the Petition is without prejudice. Petitioners may file an amended
Petition within 30 days of the date of filing of this decision. McConville v. City of
Phila., 80 A.3d 836, 843-44 (Pa. Cmwlth. 2013).
__________________________________
CHRISTINE FIZZANO CANNON, Judge
19
In light of our dismissal of the Petition on grounds that it fails to plead sufficient harm
or injury to establish Petitioners’ standing, we do not reach Respondents’ additional Preliminary
Objections and present no opinion as to the sufficiency of the Petition in light of these additional
objections (challenging the Petition for lack of a unique interest sufficient to establish standing,
failure to exhaust administrative remedies, lack of subject matter jurisdiction, failure to join
necessary and indispensable parties, and legal insufficiency).
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Open PA Schools, Jamie Walker, :
Tara Adams, James Holt, Felix P. :
Mummolo, Stacey McShane, Jaret :
Matthew Gale, Patrice Silver, Joe :
Dettore, Sr., Chris Brill, and Beth :
Rosica, :
Petitioners :
:
v. :
:
Department of Education of the :
Commonwealth of Pennsylvania, :
Pedro A. Rivera, Secretary of Education :
of the Commonwealth of Pennsylvania, :
Central Bucks School District, :
Downingtown Area School District, :
Oley Valley School District, :
Unionville-Chadds Ford School District, :
Perkiomen Valley School District, :
Great Valley School District, and :
West Chester School District, : No. 504 M.D. 2020
Respondents :
ORDER
AND NOW, this 14th day of January, 2021, Respondents’ Preliminary
Objections are sustained on the basis of Petitioners’ failure to plead sufficient facts
in their Petition for Review to establish standing. Respondents’ remaining
Preliminary Objections are dismissed as moot. Petitioners’ Application for
Expedited Summary Relief is denied. Petitioners’ Petition for Review is dismissed
without prejudice. Petitioners may file an amended Petition for Review within 30
days of the date of this order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge