IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neshaminy School District, :

Petitioner :

:

v. :

:

MaST-Neshaminy Charter School, : No. 52 C.D. 2016

Respondent : Submitted: October 17, 2016

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: November 10, 2016

Neshaminy School District (District) petitions this Court for review of 

the State Charter School Appeal Board’s (CAB) January 6, 2016 order granting 

MaST-Neshaminy Charter School’s (MaST-Neshaminy) appeal and directing the 

District to issue MaST-Neshaminy a charter. The District presents three issues for 

this Court’s review: (1) whether CAB committed an error of law or abused its

discretion when it held that MaST-Neshaminy obtained a suitable facility pursuant to 

Section 1719-A(11) of the Charter School Law (CSL);1(2) whether CAB committed 

an error of law or abused its discretion by concluding that MaST-Neshaminy 

complied with Section 1717-A(e)(2)(i) of the CSL2by demonstrating sustainable

support for MaST-Neshaminy in the District; and (3) whether CAB committed an 

error of law or abused its discretion by concluding that MaST-Neshaminy complied 

 

1 Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 17-1719-A(11). Article XVII- A of 

the School Code, relating to Charter Schools, was added by Section 1 of the Act of June 19, 1997, 

P.L. 225.

2

24 P.S. § 17-1717-A(e)(2)(i).
2

with Section 1717-A(e)(2)(iv) of the CSL3by demonstrating that MaST-Neshaminy

would be a model for other public schools. After review, we affirm.

On October 18, 2012, MaST-Neshaminy submitted an application with

the District to establish a charter school in the District that would focus on providing 

science, technology, engineering and mathematics to students in grades kindergarten 

through twelve (Application). After holding public hearings on November 29, 2012 

and February 11, 2013, the District’s Board of School Directors (Board) voted to 

deny the Application. On March 18, 2013, the Board adopted a Resolution with 

Findings of Fact and Conclusions of Law in support of its denial. The Board based 

its denial on three reasons: (1) lack of demonstrated sustainable support for the 

charter school; (2) failure to identify a suitable facility; and (3) failure to demonstrate 

that MaST-Neshaminy would be a model for other public schools. 

Thereafter, MaST-Neshaminy filed a Signature Petition (Petition) with 

the Bucks County Common Pleas Court (trial court). After a hearing, the trial court, 

on January 31, 2014, determined that the Petition was sufficient and allowed MaSTNeshaminy’s appeal from the Board’s denial to CAB. On February 12, 2014, MaSTNeshaminy filed an appeal with CAB.4

 On January 6, 2016, CAB granted MaSTNeshaminy’s appeal and directed the District to issue MaST-Neshaminy a charter. 

The District appealed to this Court.5 

 

3

24 P.S. § 17-1717-A(e)(2)(iv).

4 On April 17, 2014, the District filed the Reproduced Record with CAB. Following receipt 

of the record, the hearing officer held a telephonic pre-hearing conference with counsel, and by 

April 30, 2014 Order permitted the parties to file various procedural motions with specified 

deadlines. The District filed a Motion to Dismiss the Appeal for Failure to Identify a Suitable 

Facility (Motion to Dismiss). Both parties filed various Motions to Supplement the Record. On 

April 7, 2015, CAB issued an Order denying the District’s Motion to Dismiss and granted MaSTNeshaminy’s Second Motion to Supplement the Record. On May 8, 2015, the hearing officer 

issued an Order resolving the remaining outstanding Motions to Supplement the Record, 

establishing the Documentary Record before CAB and setting briefing deadlines.

5

“Our scope of review of an order of [CAB] is limited to a determination of whether 

constitutional rights were violated, [whether] errors of law [were] committed or whether the 
3

The District first argues that CAB committed an error of law or abused

its discretion when it held that MaST-Neshaminy had obtained a suitable facility in 

accordance with Section 1719-A(11) of the CSL. Specifically, the District contends 

that CAB erred by concluding that a mere two pages of documents were sufficient to 

allow the Board to decide whether any of the proposed facilities comply with the 

CSL’s requirements. Further, the District asserts that MaST-Neshaminy did not meet 

the suitable facility requirement because the intent to lease or purchase letter is not 

between MaST-Neshaminy and the facility owner, but rather between the facility 

owner and a for-profit, unrelated third party. 

MaST-Neshaminy rejoins that it submitted more than enough 

information to show that it complied with Section 1719-A(11) of the CSL.

Moreover, MaST-Neshaminy maintains that the “for-profit, unrelated third party” is 

MaST-Neshaminy’s property developer John Parsons (Parsons). In addition to the 

intent to lease or purchase letter, MaST-Neshaminy also provided a memorandum of 

understanding between MaST-Neshaminy and Parsons stating that the developer will 

purchase and develop the property for use as a charter school and lease it to MaSTNeshaminy. 

A similar argument to the District’s contention herein was raised by the 

school district in Carbondale Area School District v. Fell Charter School, 829 A.2d 

400 (Pa. Cmwlth. 2003). Specifically,

[t]he [school d]istrict contend[ed] that [the charter school 

had to] submit a more complete description of the proposed 

facility, including a written lease agreement, a capital 

improvement plan, or an agreement of sale for the purchase 

of real estate. . . .

 

decision is not supported by substantial evidence.” Cmty. Serv. Leadership Dev. Charter Sch. v. 

Pittsburgh Sch. Dist., 34 A.3d 919, 924 n.7 (Pa. Cmwlth. 2012).
4

[] CAB, however, concluded that the type of information 

the [school d]istrict would like in the application is not 

required by the [CSL]. It state[d]: ‘[t]he law simply 

requires a general description of the facility, its address, 

ownership information, leasing arrangements, suitability, 

and safety considerations.’ In rendering its decision, [] 

CAB relie[d] on the [c]harter [s]chool [a]pplication, which 

list[ed] the address at 775 Main Street, Simpson, 

Pennsylvania, and the fact that Mosaica was negotiating to 

purchase a property and construct a building of 

approximately 40,000 square feet for additional classrooms. 

Additionally, [] CAB relied extensively on the 

[m]emorandum of [u]nderstanding between [the charter 

school] and . . . the current owner of the property at 775 

Main Street[], which was submitted with the application. 

The [m]emorandum provides an additional description of 

the site, including a floor plan, and an architectural drawing. 

Additionally, [] CAB relied on the lengthy discussion at the 

June 25, 2001 hearing before the [s]chool [b]oard.

The CSL requires an applicant to provide ‘[a]

description of and address of the physical facility in 

which the charter school will be located and the 

ownership thereof and any lease agreements.’ . . . 24 

P.S. § 17–1719–A(11). Further, under Section 1722–A(a) 

of the C[SL], a charter school may be located on ‘space 

provided on a privately[-]owned site, in a public 

building or in any other suitable location.’ 24 P.S. § 17–

1722–A(a). A charter school facility must comply only 

with the public school regulations that concern health or 

safety of students. Section 1722–A(b) of the CSL, 24 P.S. 

§ 17–1722–A(b).

We agree with [] CAB that [the charter school] complied 

with the requirements of the CSL. Although the additional 

information would be helpful in making a determination, it 

is not statutorily required. As we stated in Brackbill [v. Ron 

Brown Charter School, 777 A.2d 131 (Pa. Cmwlth. 2001)], 

‘[a]lthough an applicant must include a proposed facility in 

its application, there is no requirement that the facility be 

under a contractual obligation before the charter is 

granted.’ Id. at 139. . . . Consequently, the [school 

d]istrict’s argument as to this issue is rejected.
5

Carbondale, 829 A.2d at 408 (citation omitted; emphasis added). Moreover, this 

Court in Montour School District v. Propel Charter School-Montour, 889 A.2d 682 

(Pa. Cmwlth. 2006), held that “the proposed facility must be presented for the District 

or CAB to approve prior to the school opening, and before the application is granted.” 

Id. at 690.

Here, because both sites identified in the Application became 

unavailable between the time of the Application’s denial and the CAB appeal, MaSTNeshaminy filed a Second Motion to Supplement6 which included information 

regarding four alternate locations. As CAB explained:

MaST-Neshaminy has provided information about the 

location at 181 Wheeler Court, Langhorne, PA, which, 

according to its statement in its Brief in Support of [i]ts

Second Motion to Supplement the Record, is now its first 

choice for the location of the charter school. The 

information provided by MaST-Neshaminy includes an 

address of the physical facility; information regarding the 

ownership of the facility; a letter from the owner to the 

property developer indicating a willingness to lease or sell 

the facility for use by a charter school; a memorandum of 

understanding between MaST-Neshaminy and the property 

developer, who will purchase and develop the property, 

regarding the use of the facility as a charter school; and a 

conceptual drawing as to how the property will be 

developed for the charter school. 

CAB Op. at 24-25 (citation and footnotes omitted). The above statement of facts is

not challenged by the District and is supported by the record. Further, CAB granted 

MaST-Neshaminy’s charter “on the condition that a school facility in compliance 

with all applicable laws is constructed at one of the four sites proposed in MaSTNeshaminy’s Second Motion to Supplement the Record.” CAB January 6, 2016 

Order.

 

6 MaST-Neshaminy’s original Motion to Supplement contained a location that became

unavailable.
6

CAB opined:

The supplemental materials provided by MaST-Neshaminy 

meet the requirements of the CSL. However, under prior

precedent, a school district has the opportunity to ensure 

that the facility ultimately constructed complies with all 

applicable laws. See Montour School District. . . . Thus, as 

a condition of granting a charter in this appeal, the facility 

ultimately constructed for the school must be a legally 

compliant school building and must be inspected and 

approved by the [] District in order for the charter school to 

open.

CAB Op. at 26. We discern no error in this analysis. Because MaST-Neshaminy 

submitted all the information the CSL requires in its Second Motion to Supplement 

regarding its proposed facility, and CAB conditioned MaST-Neshaminy’s charter on 

its use of a legally-compliant school building, MaST-Neshaminy’s proposed facility

does not violate the CSL.

The District next argues that CAB committed an error of law or abused

its discretion by concluding that MaST-Neshaminy complied with Section 1717-

A(e)(2)(i) of the CSL by demonstrating sustainable support for MaST-Neshaminy in 

the District when only eight community members spoke at the public hearing in 

support of the Application and there was no support from teachers and/or 

administrators. MaST-Neshaminy retorts that it provided hundreds of pre-enrollment 

forms, hundreds of signatures on the Petition in favor of the school, and evidence of 

support from teachers and administrators. Further, MaST-Neshaminy maintains that 

CAB correctly concluded that ten people spoke in support of the Application at the 

hearing. 

CAB expressly concluded: “Ten (10) people spoke in support of MaSTNeshaminy during the public hearings on the Application. [Certified Reproduced
7

Record (C.R.R.)

7

at Vol. 1,] 14-16, [Vol. 4,] 1115-1117, 1119 -1121.” CAB Op. at 6, 

Finding of Fact (FOF) 24. In fact, the record evidence contains the testimony of 

eleven people who spoke in support of MaST-Neshaminy’s Application. 

Specifically, the record evidence contains testimony, from the November 29, 2012 

hearing in support of MaST-Neshaminy’s Application, of District parent Deb Harker,

Langhorne resident/District parent Suzie Merchant, Levittown resident/District parent 

Karen Gatewood and Langhorne resident/District parent Michael Noga. See C.R.R. 

at Vol. 1, 14-16. It also contains testimony, from the February 11, 2013 hearing in 

support of MaST-Neshaminy’s Application, of Levittown resident/charter school 

parent John McLaughlin, Langhorne resident/District parent Charles Alfonso, 

Langhorne resident/private school parent Gail Tehibodeau, Langhorne resident 

Dennis Brophy and Langhorne resident/District parent Karen Blumenfield, see 

C.R.R. at Vol. 4, 1115-1117, and Langhorne resident/founding member of MaSTNeshaminy Jennifer Bouton and Levittown resident/founding member of MaSTNeshaminy Matt Pilleggi. See C.R.R. at Vol. 4, 1119-1121. Thus, CAB’s conclusion 

is supported by substantial evidence.

With respect to the contention that two of the testifying supporters were 

founding members of MaST-Neshaminy: “[N]othing in the CSL prohibits members 

of the [b]oard of [d]irectors of a proposed charter school from testifying. As the 

board members who testified are either parents, teachers, or other members of the 

community, we find that their testimony supporting the charter school plan was 

properly relied upon by the CAB.” Brackbill, 777 A.2d at 137.

Moreover, Section 1717-A(e)(2)(i) of the CSL provides that one of the 

required criteria includes: “The demonstrated, sustainable support for the charter 

 

7

Three “Records” were provided to this Court: (1) the “Certified Record” from CAB; (2)

the District’s “Certified Reproduced Record”; and (3) the District’s “Reproduced Record”. While 

all three “Records” contain the same content, all have different page numbering. 
8

school plan by teachers, parents, other community members and students, including 

comments received at the public hearing . . . .” 24 P.S. § 17-1717-A(e)(2)(i) 

(emphasis added). “Since review of this issue turns on statutory construction, we 

look to the CAB’s interpretation for guidance.” Brackbill, 777 A.2d at 137-38. CAB 

interpreted Section 1717–A(e)(2)(i) of the CSL to mean that “support is measured in 

the aggregate,” and concluded “it was inappropriate for the District Board to isolate 

each potential type of support and found it inadequate on an individual basis.” CAB

Op. at 21. “Accordingly, CAB [held] that the evidence of record demonstrate[d]

sufficient sustainable support, in the aggregate, to meet the requirements of the CSL 

and reject[ed] the District Board’s finding to the contrary.” Id.

We find [] CAB’s construction of Section 1717–A(e)(2)(i)

[of the CSL] to be reasonable. The text of the statute, 

making the ‘demonstrated, sustainable support . . . by 

teachers, parents, other community members and students’ 

one of several nonexclusive ‘criteria,’ suggests a less rigid 

interpretation than that urged by the [] District. In 

particular, the insertion of the term ‘other community 

members’ makes clear that the emphasis of Section 1717–

A(e)(2)(i) [of the CSL] is on the applicant showing that the 

charter school enjoys reasonably sufficient support from the

community, not showing some minimum level of support 

from each of the more discrete groups listed.

Brackbill, 777 A.2d at 138. “In light of the strong community support demonstrated 

by the petitions and the other testimony presented at [] CAB’s [November 29, 2012 

and February 11, 2013] hearing[s], we conclude that [] CAB did not err in finding 

[MaST-Neshaminy] had demonstrated sufficient community support.” Id.

Lastly, the District argues that CAB committed an error of law or abused

its discretion by concluding that MaST-Neshaminy complied with Section 1717-

A(e)(2)(iv) of the CSL by demonstrating that MaST-Neshaminy would be a model 

for other public schools because MaST-Neshaminy does not expand the curriculum 

choices for students. MaST-Neshaminy responds that the record is replete with ways 
9

in which MaST-Neshaminy will offer an education program that is different from the 

District’s program, and thus, it can serve as a model for other public schools.

Section 1717-A(e)(2)(iv) of the CSL requires an applicant to show: “The 

extent to which the charter school may serve as a model for other public schools.” 24

P.S. § 17-1717-A(e)(2)(iv). Further, 

[t]he legislative intent behind the CSL is ‘to establish and 

maintain schools that operate independently from the 

existing school district structure as a method to accomplish . 

. . [and e]ncourage the use of different and innovative 

teaching methods. . . .’ 24 P.S. § 17–1702–A(2). In order 

to achieve this goal, the CSL requires an applicant to 

provide information regarding the ‘mission and education 

goals of the charter school, the curriculum to be offered and 

the methods of assessing whether students are meeting 

educational goals.’ 24 P.S. § 17–1719–A(5).

Montour School District, 889 A.2d at 687-88. “While there may be similarities

between [MaST-Neshaminy] and the existing public schools, similarities, alone, are 

insufficient to support a finding of non-compliance with the CSL when there is 

substantial evidence of uniqueness.” Id. at 688.

Here, CAB opined:

The Application and supporting materials describe a 

learning environment that is unique and different from that 

in the [] District’s public schools. The fact that the [] 

District has some programs similar in nature to those 

outlined by MaST-Neshaminy is irrelevant to the

consideration. The record establishes that MaSTNeshaminy’s educational program is innovative and 

distinctive from the [] District’s. The record establishes, 

inter alia, different and innovative teaching methods would 

be utilized, new professional opportunities for teachers

would be created, and more up to date state-of-the-art 

technology, different learning environments, including an 

outdoor classroom and 3-D technology, and an emphasis on 
10

STEM [science, technology, engineering and mathematics]

would be provided to students.

CAB Op. at 30. CAB concluded: “After a review of the record, CAB disagrees with 

the District Board’s findings, and, consistent with the discussion above, finds that 

MaST-Neshaminy’s program may serve as a model for other public schools.” Id. 

We discern no error in CAB’s conclusion which is supported by substantial record 

evidence.

For all of the above reasons, CAB’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neshaminy School District, :

Petitioner :

:

v. :

:

MaST-Neshaminy Charter School, : No. 52 C.D. 2016

Respondent :

O R D E R

AND NOW, this 10th day of November, 2016, the State Charter School 

Appeal Board’s January 6, 2016 order is affirmed.

___________________________

ANNE E. COVEY, Judge