IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Penn School District; :

Panther Valley School District; :

The School District of Lancaster; :

Greater Johnstown School District; :

Wilkes-Barre Area School District; :

Shenandoah Valley School District; :

Jamella and Bryant Miller, parents of :

K.M., a minor; Sheila Armstrong, :

Parent of S.A., minor; Tyesha :

Strickland, parent of E.T., minor; :

Angel Martinez, parent of A.M., :

minor; Barbara Nemeth, parent of :

C.M., minor; Tracey Hughes, parent :

of P.M.H., minor; Pennsylvania :

Association of Rural and Small Schools; :

and The National Association for the :

Advancement of Colored :

People–Pennsylvania State Conference, :

Petitioners :

:

v. : No. 587 M.D. 2014

: Argued: March 7, 2018

Pennsylvania Department of Education; :

Joseph B. Scarnati III, in his official :

capacity as President Pro-Tempore of :

the Pennsylvania Senate; Michael C. :

Turzai, in his official capacity as the :

Speaker of the Pennsylvania House of :

Representatives; Tom W. Wolf, :

in his official capacity as the Governor :

of the Commonwealth of Pennsylvania; :

Pennsylvania State Board of Education; :

and Pedro Rivera, in his official :

capacity as the Acting Secretary of :

Education, :

Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN H. CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: May 7, 2018

Before this Court, on remand from our Supreme Court, are preliminary 

objections to a petition for review filed in this Court’s original jurisdiction. As 

explained below, we overrule the preliminary objections.1

Also before us is an application for dismissal filed by Respondent 

Joseph B. Scarnati III, President Pro-Tempore of the Pennsylvania Senate, 

contending the claims in the petition for review are moot. As explained in more 

detail below, we defer ruling on the application for dismissal, pending further 

development of the pleadings or the record.

 

1 However, as discussed below, we acknowledge that the immunity objection asserted by 

the Pennsylvania Department of Education, Pennsylvania Governor Tom Wolf, Pennsylvania 

Secretary of Education Pedro A. Rivera, and the Pennsylvania State Board of Education 

(collectively, Executive Branch Respondents) has been preserved for advancement as an 

affirmative defense by those Respondents.

Also, as explained below, we anticipate that issues regarding the nature of the constitutional 

rights involved and the corresponding level of judicial scrutiny to be applied will be further 

developed and submitted to the Court for decision on an application for partial summary relief.
2

I. Background

The previous opinions in this case2set forth the facts in greater detail. 

We recount here only those necessary to this opinion.

This action is a petition for review in our original jurisdiction, filed by

several Pennsylvania public school districts, the parents of several Pennsylvania 

public school students, the Pennsylvania Association of Rural and Small Schools, 

and the National Association for the Advancement of Colored People–Pennsylvania 

State Conference (collectively, Petitioners). 

Respondents are Pennsylvania Governor Tom Wolf, the Pennsylvania 

Department of Education, Pennsylvania Secretary of Education Pedro A. Rivera, and 

the Pennsylvania State Board of Education (collectively, Executive Branch 

Respondents), as well as President Pro-Tempore of the Pennsylvania Senate, Joseph 

B. Scarnati III, and Speaker of the Pennsylvania House of Representatives, Michael 

C. Turzai (collectively, Legislative Branch Respondents). 

Petitioners filed their petition for review in 2014, challenging the 

constitutionality of the educational funding legislation then in place, popularly

known as Act 61.

3

 Specifically, Petitioners contended Act 61 failed to fulfill the 

General Assembly’s mandate to “provide for the maintenance and support of a 

thorough and efficient system of public education” as set forth in Article III, §14 of 

 

2 See William Penn Sch. Dist. v. Pa. Dep’t of Educ., 114 A.3d 456 (Pa. Cmwlth. 2015) 

(William Penn I), rev’d and remanded, 170 A.3d 414 (Pa. 2017) (William Penn II).

3 Act of July 9, 2008, P.L. 846, No. 61, amending Act of Mar. 10, 1949, P.L. 30, No. 14, 

24 P.S. §§1-101–25-2599.2.
3

the Pennsylvania Constitution (Education Clause). Petitioners further contended

Act 61 resulted in gross disparities in education funding and resources among public 

school districts in Pennsylvania, and thus violated Article III, §32 of the 

Pennsylvania Constitution (Equal Protection Clause).

Both Executive Branch Respondents and Legislative Branch 

Respondents filed various preliminary objections. This Court, in a unanimous en

banc opinion, sustained a demurrer on the basis that the petition for review presented

political questions that were non-justiciable. William Penn Sch. Dist. v. Pa. Dep’t 

of Educ., 114 A.3d 456 (Pa. Cmwlth. 2015) (William Penn I), rev’d and remanded, 

170 A.3d 414 (Pa. 2017) (William Penn II). Based on that conclusion, this Court 

did not reach Respondents’ other preliminary objections. Id.

On appeal, the Pennsylvania Supreme Court reversed. The Supreme 

Court found the case to be justiciable, and remanded to this Court for consideration 

of the remaining preliminary objections. William Penn II.

II. Issues

On remand, we address Respondents’ preliminary objections not 

reached in William Penn I.

Executive Branch Respondents filed preliminary objections in the 

nature of a demurrer, contending Petitioners fail to state a claim for which relief may 

be granted because the statutory scheme establishing and providing for the system 

of public education is rationally related to legitimate governmental objectives. 
4

Executive Branch Respondents also argue Petitioners’ claims are barred by 

sovereign immunity to the extent that the petition for review seeking to impose a 

mandatory injunction. Further, Executive Branch Respondents assert that

Petitioners’ claims are barred by the separation of powers doctrine to the extent that 

the petition for review seeks to compel action by the General Assembly and subject 

it to ongoing supervision by this Court.

Legislative Branch Respondents filed preliminary objections in the 

nature of a demurrer, contending Petitioners fail to state a claim upon which relief 

may be granted under the Education Clause, because the funding system in Act 61

serves the rational basis of preserving local control over public education. Similarly, 

Legislative Branch Respondents also argued Petitioners fail to state a claim upon 

which relief may be granted under the Equal Protection Clause, because education 

is not a fundamental right subject to strict scrutiny, and because Act 61’s funding 

system serves the rational basis of preserving local control over public education.

Following our Supreme Court’s remand, this Court accepted 

supplemental briefs from the parties concerning the preliminary objections. 

Executive Branch Respondents, except the Board of Education

(Remaining Executive Branch Respondents), withdrew all of their preliminary 

objections, concluding the objections were largely foreclosed by our Supreme 

Court’s opinion in William Penn II. However, Remaining Executive Branch 

Respondents reserved the right to reassert their immunity defense in their answer to 

the petition for review.
5

The Board of Education filed a separate supplemental brief. The Board 

of Education reasserted and incorporated by reference the argument in Executive 

Branch Respondents’ original brief that Petitioners’ claims are barred by the doctrine 

of separation of powers. With regard to immunity, the Board of Education’s 

supplemental brief incorporated by reference Executive Branch Respondents’ 

immunity argument from their original brief.4

Senator Scarnati and Speaker Turzai also filed separate supplemental 

briefs. Senator Scarnati argued Petitioners failed to satisfy the fact-pleading 

requirements of the Pennsylvania Rules of Civil Procedure. Notably, he challenged

the adequacy of Petitioners’ pleading of causation, which was not among Legislative 

Branch Respondents’ original preliminary objections. He also filed an application 

to dismiss the petition for review, contending Petitioners’ claims became moot upon 

the General Assembly’s repeal and replacement of Act 61 with a new statutory 

funding scheme, popularly known as Act 35,

5 while this action was pending. He 

addressed that application in his supplemental brief as well.

Speaker Turzai focused on the nature of the right to public education,

and the related issue of the appropriate level of scrutiny to be applied in

constitutional challenges asserting that right under the Education and Equal 

Protection Clauses of the Pennsylvania Constitution.

 

4 The Board of Education did not expressly incorporate any other portion of Executive 

Branch Respondents’ original brief. However, this Court’s order authorizing additional briefs 

specifically provided that in such briefs, the parties might “supplement the arguments made in 

their prior briefs regarding the preliminary objections that they previously filed.” Cmwlth. Ct. 

Order, 1/4/18. Thus, express preservation of arguments from the original briefs was not necessary.

5 Act of June 1, 2016, P.L. 252, No. 35, §1, 24 P.S. §25-2502.53.
6

Petitioners filed a single supplemental brief in opposition to all of the 

preliminary objections, and to Senator Scarnati’s application for dismissal.

III. Discussion

A. Mootness

In 2016, Act 35 changed the statutory scheme for funding 

Pennsylvania’s public education system. Senator Scarnati contends that the changes 

are significant and that Petitioners’ constitutional challenges to Act 61 are moot in 

light of this intervening change in the law. 

In opposition, Petitioners contest the significance of the funding 

changes wrought by Act 35. In addition to the factual contest, Petitioners largely 

rely on our Supreme Court’s discussion of mootness in William Penn II. That 

discussion, while not essential to its decision in William Penn II, offers some 

indication of our Supreme Court’s views on this issue. Observing that the nature of 

the state’s education funding formula can change any time the legislature chooses, 

our Supreme Court stated: “Changes in the formula do not render the questions 

presented moot ....” Id. at 435. Further, the Supreme Court noted that even if the 

passage of Act 35 mooted Petitioners’ claims, “Petitioners would have a compelling 

argument ... to proceed to decision on the basis that the issues as stated are of 

importance to the public interest and ‘capable of repetition yet evading review.’” Id.

at 435 n.34 (citation omitted). Our Supreme Court explained: “At the inception of 

any action such as the one presented – the public importance of which cannot be 

disputed – there inheres the risk that the General Assembly will move the goalposts 

by enacting new legislation ....” Id.
7

Unfortunately, neither the petition for review nor the record affords this 

Court a basis to determine the possible impact of Act 35 on the causes of action 

currently pled by Petitioners.6 In addition, we are mindful of our Supreme Court’s 

comments on mootness in William Penn II. Accordingly, at this juncture we cannot 

say as a matter of law that the abrogation of the statutory funding scheme challenged 

by Petitioners renders their challenges moot. We will therefore defer action on the 

application for dismissal pending further supplementation of the pleadings or the 

record by the parties in accordance with the attached order.

B. Demurrer/Petitioners’ Pleading

In his supplemental brief, Senator Scarnati also challenges the

sufficiency of Petitioners’ pleading. Specifically, he contends the petition for review 

fails to set forth sufficient facts to provide the necessary causal links between the 

alleged infirmities of the educational funding scheme and the resulting harm averred 

by Petitioners. We discern no merit in this argument.

Because Pennsylvania is a fact-pleading state, a civil complaint must 

aver sufficient facts to apprise the defendant of the nature and extent of the plaintiff’s 

claim, so that the defendant can prepare to meet the plaintiff’s evidence at trial. 

Clark v. Se. Pa. Transp. Auth., 691 A.2d 988 (Pa. Cmwlth. 1997). However, that 

does not mean the plaintiff must plead the facts in such detail as to eliminate the 

need for discovery. Rather, Pennsylvania’s fact-pleading rules arise from the 

 

6 At oral argument, counsel for Petitioners contended that Paragraph 150 of the petition for 

review referenced persistent problems in the current public school funding system so as to dispel 

any factual doubts about mootness. Our review of the averments in the petition for review, 

however, convinces us that the “current school financing arrangement” is not described in 

sufficient detail to allow us to resolve the issue at this point.
8

premise that discovery can be narrowed if the pleadings initially define the contours 

of the dispute. McNeil v. Jordan 814 A.2d 234 (Pa. Super. 2002), rev’d on other

grounds, 894 A.2d 1260 (Pa. 2006). Senator Scarnati’s demurrer seeks a level of 

detail far exceeding what is required for an initial pleading defining the contours of 

the dispute.

A fair reading of the petition for review reveals that it avers sufficient 

facts to allow Respondents to understand the nature of Petitioners’ claims. The 

petition for review is extensive and detailed. It sets forth Petitioners’ challenges to

the constitutionality of “the current school financing arrangement,” at least as it 

existed in 2014, with specificity and clarity. Indeed, the opinion of our Supreme 

Court in William Penn II demonstrates the sufficiency of Petitioners’ pleading. The 

Supreme Court was clearly able to discern from the petition for review the nature 

and extent of Petitioners’ claims, notably including the alleged causal link between 

the alleged constitutional defects to the “current funding scheme” and the harm 

averred by Petitioners.

Moreover, Pa. R.C.P. No. 1028(b) expressly requires that all 

preliminary objections must be asserted at one time. Petitioners correctly point out 

that Senator Scarnati’s demurrer relating to fact-pleading requirements was not 

among the Legislative Branch Respondents’ preliminary objections. Rather, it 

appeared for the first time in Senator Scarnati’s supplemental brief. Having failed 

to assert a demurrer relating to fact-pleading in the original preliminary objections, 

Senator Scarnati waived that objection to the sufficiency of the petition for review. 

Pa. R.C.P. No. 1032(a).
9

 Further, this Court’s order authorizing supplemental briefing only 

allowed the parties to “supplement the arguments made in their prior briefs regarding 

the preliminary objections that they previously filed.” Cmwlth. Ct. Order, 1/4/18 

(emphasis added). Our order did not authorize the addition of preliminary objections 

not previously asserted.

Accordingly, we overrule the objection concerning Petitioners’ 

pleading of causation.

C. Sovereign Immunity

In their preliminary objections, supported in their original brief, 

Executive Branch Respondents asserted immunity to the claims in the petition for 

review. Executive Branch Respondents acknowledged that suits seeking restrictive 

injunctions against state officials are not barred by immunity, but contended those 

seeking mandatory injunctions are barred. Fawber v. Cohen, 532 A.2d 429 (Pa. 

1987). Executive Branch Respondents suggested the petition for review seeks to 

compel affirmative acts by Respondents, and is therefore subject to the bar of 

immunity.

In response, Petitioners argued immunity does not bar a declaratory 

judgment action asserting unconstitutionality of a statute. Wilkinsburg Police 

Officers Ass’n v. Commonwealth, 636 A.2d 134 (Pa. 1993). Further, Petitioners 

argued immunity does not bar an action seeking to compel state officials to comply 

with constitutional rather than statutory mandates. Twps. of Springdale & Wilkins 

v. Kane, 312 A.2d 611 (Pa. Cmwlth. 1973).
10

In their supplemental brief on remand, Remaining Executive Branch 

Respondents abandoned their preliminary objection asserting immunity. They 

conceded that “Petitioners’ demands are more expansive,” and the defense of 

immunity would not fully dispose of Petitioners’ claims. Supp. Br. on Executive 

Branch Respondents’ Prelim. Objs. to Pet. for Review, at 10-11 n.4. The Board of 

Education did not develop the immunity argument further and did not separately 

address the arguments and authorities offered by Petitioners on the immunity issue.

The reasoning of Remaining Executive Branch Respondents is 

persuasive. Accordingly, and in light of the limited development of the Board of 

Education’s argument, we overrule the Executive Branch Respondents’ preliminary 

objection of sovereign immunity. We acknowledge that the immunity defense has 

been preserved for reassertion in the appropriate pleadings by Executive Branch 

Respondents, including the Board of Education.

D. Separation of Powers Doctrine

Executive Branch Respondents asserted a further preliminary objection 

to the petition for review, contending Petitioners’ claims were barred by the doctrine 

of separation of powers among the three branches of state government. On remand, 

the Board of Education reasserts this objection. However, our Supreme Court’s 

analysis in William Penn II foreclosed this argument.

The principle of separation of powers among the branches of 

government was intertwined with the discussion of justiciability in William Penn II. 

Our Supreme Court observed that generally, “‘the exercise of the judiciary’s power 
11

to review the constitutionality of legislative action does not offend the principle of 

separation of powers ....’” Id. at 438 (quoting Hosp. & Health System Ass’n of Pa. 

v. Commonwealth, 77 A.3d 587, 596 (Pa. 2013); Sweeney v. Tucker, 375 A.2d 698, 

705 (Pa. 1977)). As the Court explained, “‘[T]he need for courts to fulfill their role 

of enforcing constitutional limitations is particularly acute where the interests or

entitlements of individual citizens are at stake.’” Id. (quoting Hosp. & Health

System Ass’n, 77 A.3d at 597; citing Sweeney, 375 A.2d at 709).

We are persuaded by our Supreme Court’s reasoning and conclude that 

the doctrine of separation of powers does not bar Petitioners’ claims. Accordingly, 

we overrule the preliminary objection relating to the separation of powers doctrine.

E. Nature of Rights/Level of Scrutiny

Analysis of a constitutional challenge to a statute begins with a 

determination of the proper level of scrutiny to be applied in examining the statute:

The determination of the appropriate level of scrutiny 

(effectively, the standard of judicial review) depends upon the 

type of interest affected by the classification. Generally 

speaking, there are three different types of classifications 

calling for three different standards of review: (1) 

classifications which implicate a suspect class or a fundamental 

right are strictly construed in light of a compelling 

governmental purpose; (2) classifications which implicate an 

important though not a fundamental right or a sensitive 

classification are assessed under a heightened standard of 

scrutiny which seeks an important governmental purpose; and 

(3) classifications which involve none of these classes or rights 

are upheld if there is any rational basis for the classification.
12

Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 533 (Pa. 

2005) (citations omitted).

Speaker Turzai presumes a constitutional challenge based on the right 

to an adequate public education is subject either to strict scrutiny review or rational 

basis review. He contends the proper level of scrutiny is rational basis review.

However, in their supplemental brief, Petitioners urge that even if not 

subject to strict scrutiny, the right at issue is at least sufficiently important to trigger

heightened, or intermediate-level, review. No other party provides any analysis of 

intermediate-level review or its potential applicability in this case; nor did our 

Supreme Court do so in William Penn II.

Petitioners urge us not to decide the level of scrutiny at this stage of the 

case. They argue for a fully developed historical record at trial before such a ruling. 

However, it is not clear what issues would arise regarding the appropriate level of 

constitutional scrutiny that would justify awaiting trial before determining the 

applicable level of scrutiny.

Speaker Turzai, the only Respondent to address the level of scrutiny in 

any detail, asks this Court to decide it at the preliminary objection stage. However, 

we decline to address the issue in a dispositive manner at this stage in light of the 

limited analysis provided so far by the other parties. Accordingly, we overrule, 

without prejudice, preliminary objections addressing the applicable level of scrutiny, 
13

pending further development of the record and legal analysis by the parties in 

accordance with the attached order.

IV. Conclusion

Based on the foregoing discussion, this Court defers ruling on the 

application for dismissal for mootness, pending further development by the parties 

as set forth in the accompanying order. Similarly, we overrule, without prejudice, 

preliminary objections addressing the applicable level of scrutiny. After allowing 

for the development of the record on this issue, any party may invite the Court’s 

ruling. All other preliminary objections are overruled.

 

ROBERT SIMPSON, Judge

President Judge Leavitt and Judges Brobson, Covey, and Fizzano Cannon did not 

participate in the decision in this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Penn School District; :

Panther Valley School District; :

The School District of Lancaster; :

Greater Johnstown School District; :

Wilkes-Barre Area School District; :

Shenandoah Valley School District; :

Jamella and Bryant Miller, parents of :

K.M., a minor; Sheila Armstrong, :

Parent of S.A., minor; Tyesha :

Strickland, parent of E.T., minor; :

Angel Martinez, parent of A.M., :

minor; Barbara Nemeth, parent of :

C.M., minor; Tracey Hughes, parent :

Of P.M.H., minor; Pennsylvania :

Association of Rural and Small Schools; :

and The National Association for the :

Advancement of Colored :

People–Pennsylvania State Conference, :

Petitioners :

:

v. : No. 587 M.D. 2014

:

Pennsylvania Department of Education; :

Joseph B. Scarnati III, in his official :

capacity as President Pro-Tempore of :

the Pennsylvania Senate; Michael C. :

Turzai, in his official capacity as the :

Speaker of the Pennsylvania House of :

Representatives; Tom W. Wolf, :

in his official capacity as the Governor :

of the Commonwealth of Pennsylvania; :

Pennsylvania State Board of Education; :

and Pedro Rivera, in his official :

capacity as the Acting Secretary of :

Education, :

Respondents :
O R D E R

AND NOW, this 7

th day of May, 2018, upon consideration of 

Respondents’ preliminary objections and Petitioners’ responses thereto, as well as

the parties’ original and supplemental briefs, it is hereby ORDERED as follows:

1. This Court will defer ruling on the application for dismissal for 

mootness, pending further development of the issue by the parties. Petitioners may

file any amended pleading, shall submit factual support under oath or penalty of law

for their argument against mootness, and may file further written argument, within 

60 days of the date of this Order. Respondents may file any responsive materials 

within 90 days of the date of this Order. Thereafter, any party may file a written 

application for decision of this issue by the Court.

2. This Court OVERRULES, without prejudice, preliminary 

objections concerning the nature of the constitutional rights at issue and the 

corresponding level of judicial scrutiny to be applied, because the issues have not 

been sufficiently developed by the parties. The parties may conduct limited 

discovery, confined to these issues. The parties shall complete any such discovery 

within 120 days of the date of this Order. Any party may then file a motion for 

partial summary relief, also confined to these issues, within 30 days of the end of the 

discovery period. Thereafter, this Court will order a mandatory briefing schedule 

and schedule argument.
3. All other preliminary objections are OVERRULED. 

 

ROBERT SIMPSON, Judge