IN THE COMMONWEALTH COURT OF PENNSYLVANIA

C B M Ministries of South Central : Pennsylvania, Inc., : Petitioner :

:

v. : No. 206 M.D. 2018

: Argued: December 13, 2018 Commonwealth of Pennsylvania, : Department of Transportation; and : Commonwealth of Pennsylvania, : Pennsylvania State Police; and : Leslie S. Richards, in her official :

c apacity as Secretary of the : Pennsylvania Department of : Transportation and C olonel : Tyree C. Blocker, in his Official : capacity as acting commissioner : of the Pennsylvania State Police, : Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON FILED: January 9, 2019

Before the Court in our original jurisdiction is the preliminary objection
of the Commonwealth of Pennsylvania, Department of Transportation (P ennDOT),
the Pennsylvania State Police (PSP), PennDOT Secretary Leslie S. Richards
(Secretary Richards), and PSP Commissioner Tyree C. Blocker (Colonel Blocker)2

(collectively, Respondents) to an amended complaint ( Amended Complaint) filed
by C B M Ministries of South Central Pennsylvania, Inc. (CBM). In the Amended
Complaint, CBM seeks relief from enforcement of certain provisions of the
Pennsylvania Code relating to the transportation of school children. For the reasons

that follow, we overrule Respondents’ preliminary objection without prejudice

.

In ruling on preliminary objections, we accept as true all well

- pleaded
material allegations in the petition for review and any reasonable inferences that we
may draw from the averments. Meier v. Mal eski , 648 A.2d 595, 600 (Pa.

Cmwlth. 1994). The Court, however, is not bound by legal conclusions,
unwarranted inferences from facts, argumentative allegations, or expressions of
opinion encompassed in the petition for review. Id. We may sustain prelimi nary objections only when the law makes clear that the petitioner cannot succeed on the
claim, and we must resolve any doubt in favor of the petitioner. Id. “We review
preliminary objections in the nature of a demurrer under the above guidelines and

may sustain a demurrer only when a petitioner has failed to state a claim for which
relief may b e granted.” Armstrong Cty. Mem ’ l Hosp. v. Dep ’ t of Pub. Welfare

, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).

With the above standard in mind, we accept as true the follow ing
allegations from the Amended Complaint. CBM, doing business as Joy El
Ministries, provides transportation for school children involved in what it refers to

as “release time” program s . ( Amended Complaint ¶¶ 2, 5.) Pursuant to

Section 1546 of the Publ ic School Code of 1949, Act of March 10, 1949, P.L. 30, as

amended , 24 P.S. § 15

- 1546, schools must “ release ” students from their custody
upon parental request to attend unique religious educational opportunities available
through private organizations. ( Amended Complaint ¶ 4; 24 P.S. § 15

- 1546.) CBM3

provides transportation services to and from the educational opportunities.

( Amended Complaint ¶ 6.) In providing these transportation services, CBM uses its

own vehicles , and CBM’s drivers all have appropr iate licensure to operate a bus.

( Amended Complaint ¶ 29.)

On September 23, 2015, a CBM bus was the subject of a traffic stop in
a church parking lot while it transported release time participants. ( Amended
Complaint ¶ 12.) During the traffic stop, the PSP officer performed an impromptu
inspection of the bus . ( Id. ) Upon inspection, the PSP officer determined that the

bus failed to comply with regulations applicable to school buses. 1 ( Id. ) After the
inspection, the PSP off

icer refused to permit the students to board the bus, and CBM
arranged with a private contractor to borrow a bus in order to return the children to
school. ( Id. )

Thereafter, PSP contacted three school districts and informed them that

CBM’s vehicles did not comply with applicable regulations. ( Amended Complaint
¶ 26.) As a result, those school districts no longer permitted their students to utilize
CBM’s transportation services to attend release time programs. ( Id. )

In light of the above, CBM filed a complaint against Respondents in the
Franklin County Court of Common Pleas on October 23, 2015. Respondents
subsequently removed the case to the United States District Court for the Middle
District of Pennsylvania. After the federal court granted partia l summary judgment
to both parties on issues involving federal law, it remanded the claims involving state
law. After filing the Amended Complaint in the Court of Common Pleas of Franklin

1 Specifically, the PSP officer found the following violations: (1) failure to have decals on the exterior of the vehicle that identified CBM as the owner , in violation of 67 Pa. Code § 171.55 ; (2) failure to be painted “National School Bus Yellow,” in vio lation of 67 Pa. Code § 171.47; and (3) failure to have the words “School Bus” on the vehicle, in violation of 67 Pa. Code § 171.55. ( Amended Complaint ¶ 13.)4

County , the parties stipulated that this Court had original jurisdi ction, and the Court

of Common Pleas of Franklin County transferred the case.

In the Amended Complaint, CBM asserts that the regulations applicable

to school buses

— i.e. , the regulations that the PSP officer determined CBM’s bus

violated

— are not applicable to CBM. 2 In so doing, CBM avers that PennDOT
promulgated those regulations pursuant to its rulemaking authority found in

Section 4551 (a) of the Vehicle Code, 75 Pa. C.S. § 4551(a), which provides, in part:

All school buses and all other vehicles used in the transportation of school children, owned by or under contract with any school district or parochial or private school, shall conform to standards prescribed by [PennDOT]

. Regulations shall be promulgated by [PennDOT] governing the safe design, construction, equipment and operation of vehicles engaged in the transportation of school children.

CBM contends that it is not subject to the regulations promulgated
under Section 4551(a) of the Vehicle Code becau se those regulations only apply to

vehicles “ owned by or under contract with any school district or parochial or private
school.” ( Amended Complaint ¶ 16.) Given that CBM is not under contract with
any such ins titution, it argues that the regulations are inapplicable to it

, and PSP

cannot cite CBM for its lack of compliance thereto. ( Amended Complaint ¶ 20.) In
so arguing, CBM likens itself to any gener al use passenger vehicle or bus to which
the regulations are not gene rally applicable. ( Amended Compl aint ¶ 19.)

The Amended Complaint includes three counts. In the first count

(Count I) , CBM, proceeding under the Declaratory Judgments Act, 42 Pa.

2 The regulations CBM challenges are located in two separate sections of the Pennsylvania Code: (1) Sections 91 through 93 of Chapter 51 of Title 22, 22 Pa. Code §§ 51.91

- 51.93, relating to private school transportation; and (2) the entirety of Chapter 171 of Title 67, 67 Pa. Code §§ 171.1

- 171.150 , relating to school buses and school vehicles.5

C.S. §§ 7531

- 7541 , seeks relief in the form of this Court: (1) declaring that CBM’s

vehicles are not sub

ject to the regulations promulgated under Section 4551 of the
Vehicle Code; (2) declaring that CBM’s vehicles are not “sch ool buses” under 67 Pa.

Code § 171 .2 ; and (3) enjoining Respondents from enforcing regulations applicable

to school buses against CBM.

The second count (Count II) alleges a violation of the Religious
Freedom Protection Act ( RFPA ). 3 CBM avers that it is motivated by a sincerely
held religious belief and its services are a product of that motivation. ( Amended
Complaint ¶

¶ 54

- 55.) CBM asserts that the enforcement of these regulations
substantially burden s its religious exercise and no compelling governmental interest
exists to justify that burden. ( Amended Complaint ¶ ¶ 63, 66.) As such, it seeks

relief in the form of thi s Court: (1) declaring that Chapter 171 of Title 67 of the
Pennsylvania Code is unconstitutional as applied to CBM; (2) awarding nominal
damages for Respondents’ constitutional violations; (3) enjoining Respondents from
forcing CBM to comply with regulati ons relating to school vehicles;

and (4) awarding attorney’s fees.

The third count (Count III) also alleges a violation under the RFPA.
CBM avers that it is being singled out for selective enforcement of the regulations,
whereas other similarly situated entities are not. ( Amended Complaint ¶ 75.) Again,

3 A ct of December 9, 2002, P.L. 1701, 71 P.S. §§ 2401

- 2407

. The RFPA prohibits the Commonwealth from imposing substantial burdens on the free exercise of religion without a compelling interest and a showing that the least restrictive means have been employed to satisfy that interest. Combs v. Homer

- Center Sch

. Dist

. , 540 F.3d 231 , 234 (3d Cir. 2008). The RFPA defines “substantially burden” as an agency action which does any of the following: (1) significantly constrains conduct or expression mandated by a person ’ s sincerely held religious beliefs; (2) significantly curtails a person’ s ability to express adherence to his religious faith; (3) denies a person a reasonable opportunity to engage in activities whic h are fundamental to the person’ s religion; or (4 ) compels conduct or expression which violates a specific tenet of a person ’ s religious faith. Section 3 of the RFPA , 71 P.S. § 2403.6

CBM asserts that no compelling governmental interest justifies Respondents’
enforcement of these regulations against CBM. ( Amended Comp laint ¶ 76.) CBM

seeks the s ame relief in Count III as it did in Count II.

Thereafter, Respondents filed a preliminary objection, challenging the
legal su fficiency of Counts II and III

. Respondents assert that Section 6 of the

RFPA, 71 P.S. § 2406, expressly provides that the RFPA does not apply to certain
provisions of the Vehicle Code. Section 6 of the RFPA , 71 P.S. § 2406, provides,
in pertinent part:
(a) General rule

- This act shall apply to any State or local law or ordinance and the implementation of that law or ordinance, whether statutory or otherwise and whether adopted or effective prior to or after the effective date of this act. Any law enacted by the General Assembly after the effective date of this act shall be subject to this act unless the General Assembly expressly excludes that law from this act by specific reference to this act. This act shall not apply to actions of the courts of this Commonwealth or to any rules of procedure or to common law adopted by the courts of this Commonwealth. (b) Exceptions

- Notwithstanding subsection (a) and subject to existing religious exceptions, this act shall not apply to any of the following:

1. Any criminal offense under 18 Pa. C.S. (relating to crimes and offenses) or under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, De vice and Cosmetic Act, which is graded as a felony or a misdemeanor.

2. Any provision of 75 Pa. C.S. (relating to vehicles) which does any of the following :
i. Requires the licensing of motor vehicle operators.

ii. Requires the registration of motor vehicles.

iii. Requires financial responsibility for motor vehicle accidents.7 iv. Protects the public from the unsafe operation of motor vehicles or from dangerous conditions on the highways.

( E mphasis added

. ) Respondents contend that CBM’s challenge involves the
applicati on of multiple provisions of the Vehicle Code that all serve to protect the
public from the unsafe operation of motor vehicles and/or from dangerous conditions
on the highways

. 4 As the RFPA does not apply to such provisions, Respondents

seek dismissal of Counts II and III.

In response, CBM argues that its challenge does not involve provisions
of the Vehicle Code exempted by the RFPA, as its challenge is directed towards
regulations under Chapter 171 of Title 67 of the Pennsylvania Code

. As CBM
challenges regulation s under th e Pennsylvania Code instead of provision s under the

Vehicle Code, it asserts that Section 6 of the RFPA does not serve to bar its claim.
Alternatively, CBM argues that Section 4551(a) of the Vehicle Code is not meant to
protect the public but is instead focused on protecting children en route to mandatory

education

. A separate concern, however, guides our disposition of the preliminary
objection.

The Pennsylvania Supreme Court has cautioned “that the courts should
not give answers to academic questions or render advisory opinions or make
decisions based on assertions as to hypothetical events that might occur in the

future.” Phila. Entm’t & Dev. Partners, L.P. v. City of Phila. , 937 A.2d 385, 392

(Pa. 2007). T his Court does not ha ve jurisdiction to issue advisory opinions. Rendell

4 Specifically, Respondents argue that CBM’s challenge involves the following provisions
of the Vehicle Code : 75 Pa. C.S . § 4103 (relating to PennDOT’s promulgation of vehicle standards); 75 Pa. C.S. § 4551 (relating to safety regulations); 7 5 Pa. C.S. § 4552 (relating to general requirements for school buses); 75 Pa. C.S. § 4553 (relating to general requirements for other vehicles transporting school children); and 75 Pa. C.S. § 6103 (relating to PennDOT’s authority to promulgate regulations).8

v. Pa. State Ethics Comm’n , 938 A.2d 554, 559 (Pa. Cmwlth. 2007)

, rev’d on other
grounds , 983 A.2d 708 (Pa. 2009)

.

Here , our consideration of Section 6 of the RFPA

— which exempts
provisions of the Vehicl e Code from claims that those provisions substantially
burden a person’s free exercise of religion

— is compelled only if we first determine

that the regulations apply at all to CBM ’s conduct

. In Count I of the Amended
Complaint, CBM seeks a declaration fro m this Court that the regulations found in
Chapter 171 of Title 67 of the Pennsylvania Code do not apply to it. Alternatively,
in Counts II and III, CBM argues that if the regulations apply to it , then the

enforcement thereof constitutes a violation of the RFPA. In order to evaluate
whether the regulations’ enforcement here violates the RFPA, however, we first

must determine whether the regulations are applicable to CBM

— i.e. , precisely what

we mu st evaluate in Count I. The omphalos of this litigation is whether the
regulations under the Vehicle Code are enforceable against CBM, and

Counts II and III are peripheral to that central question and only become relevant if
the regulations would otherwis e apply

.

Without first answering that threshold question, any opinion regarding
the RFPA’s application to the regulations is tantamount to an advisory opinion, as it
does not serve to determine the resolution of the controversy now before the Court.

If we were to conclude here that the regulations are not exempted from the RFPA,
only to later conclude that the regulations did not apply to CBM, our opinion in this

matter would be rendered academic. As such, Respondents’ challeng es to

Counts II and III o f the Amended Complaint are not yet ripe for disposition, as t hey

presume that the regulations appl y to CBM ’s conduct

.9 Accordingly, we overrule Respondents’ preliminary objection without
prejudice, as to provide Respondents an opportunity to again raise these arguments
in a motion for summary judgment once discovery is complete.

P. KEVIN BROBSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

C B M Ministries of South Central : Pennsylvania, Inc., : Petitioner :

:

v. : No. 206 M.D. 2018

: Commonwealth of Pennsylvania, : Department of Transportation; and : Commonwealth of Pennsylvania, : Pen nsylvania State Police; and : Leslie S. Richards, in her official :

c apacity as Secretary of the : Pennsylvania Department of : Transportation and Colonel : Tyree C. Blocker, in his Official : capacity as acting commissioner : of the Pennsylvania Stat e Police, : Respondents :

O R D E R

AND NOW, thi s 9 th day of January , 201 9

, the preliminary objection
filed by Respondents in this matter is OVERRULED. Respondents are directed to

file a n answer to the amended complaint filed by C B M Ministries of South Central
Pennsylvania, Inc. within thirty days of this order.

P. KEVIN BROBSON, Judge