Received 02/23/2015 Supreme Court Eastern District

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT
NO. __ EAL 2015
PHILADELPHIA FEDERATION OF TEACHERS, AFT, LOCAL 3, AFLCIO and JERRY JORDAN, President and Trustee Ad Litem,
Respondents,
v.
SCHOOL DISTRICT OF PHILADELPHIA, SCHOOL REFORM
COMMISSION, WILLIAM J. GREEN, IV, in his official capacity as
Chairman and Member of the Commission, FEATHER HOUSTOUN,
FARAH JIMENEZ, MARJORIE NEFF, SYLVIA P. SIMMS, in their official
capacities as Members of the Commission, and WILLIAM R. HITE, JR., in
his official capacity as Superintendent of Schools,
Petitioners.

PETITION FOR ALLOWANCE OF APPEAL, OR, IN THE

ALTERNATIVE, FOR THE EXERCISE OF EXCLUSIVE JURISDICTION
Petition for Allowance of Appeal from the Order of the Commonwealth Court
entered January 22, 2015 at 1951 C.D. 2014, affirming the Final Injunction
Order of the Court of Common Pleas of Philadelphia County entered October
27, 2014 at No. 01842, October Term, 2014, or for Exclusive Jurisdiction

Mark A. Aronchick
Matthew A. Hamermesh
Hangley Aronchick Segal
Pudlin & Schiller, P.C
One Logan Square, 27th Floor
Philadelphia, PA 19103-6995
(215) 568-6200
Attorneys for Petitioners

Richard L. Bazelon
A. Richard Feldman
Lisa A. Barton
Bazelon, Less & Feldman, P.C.
One South Broad Street, Suite 1500
Philadelphia, PA 19107
(215) 568-1155
Attorneys for Petitioners

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
I. THE OPINIONS BELOW....................................................................................i
II. THE ORDER IN QUESTION .............................................................................1
III. THE QUESTIONS PRESENTED FOR REVIEW .............................................1
IV. STATEMENT OF THE CASE ...........................................................................2
A. The Underlying Facts ......................................................................................2
B. The Proceedings Below ...................................................................................6
C. The Relevant Statutory Background ...............................................................6
V. THE REASONS FOR GRANTING ALLOWANCE OF APPEAL.................11
A. The Question of the SRCs Statutory Power to Cancel the PFTs Collective
Bargaining Agreement and to Impose New Economic Terms Is a Matter of
Substantial Public Importance that Presents Issues of First Impression and
Requires a Prompt and Definitive Resolution by this Court .........................11
1.

2.

Sections 693 and 696 of the Public School Code plainly and
unequivocally give the SRC the power to cancel any contract,
including collective bargaining agreements, and the Commonwealth
Court erred in holding to the contrary ......................................................16
a)

The court below misconstrued the 2001 amendments to section

696(k)(5), which confirmed that the SRCs power to cancel any
contract includes collective bargaining agreements ...........................20

b)

The court below also misconstrued the significance of the School

District Financial Recovery Act of 2012, which further confirmed the
SRCs power to cancel collective bargaining contracts .......................22
Sections 693(a)(1) and 696(k)(5) authorize the SRC and the School
District to impose new economic terms following a cancellation and the
court below erred in holding otherwise ....................................................25

a)

Sections 693(a)(1) and 696(k)(5) granted the SRC the power to impose
changed economic terms following a cancellation of the collective
bargaining contract ...............................................................................25

b)

The court below further erred by rejecting section 28(a)s repeal of

PERA as inapplicable and assuming that PERA treats a cancellation
the same as an expiration ......................................................................27

3.

Commonwealth Courts additional reasons for its ruling also do not

withstand scrutiny .....................................................................................32

4.

The collective bargaining agreement between the School District and the
PFT is not a teachers contract within the meaning of section
693(a)(1) ...................................................................................................34

5.

Section 696 does not impair any contractual obligations or constitute an

unconstitutional delegation of legislative power ......................................37

VI. THE REASONS FOR EXERCISING EXCLUSIVE JURISDICTION ...........40

A. In the Alternative, this Court Has Exclusive Jurisdiction over this Matter
Pursuant to Section 27 of Act 46 and Should Exercise that Jurisdiction to
Decide it Promptly and Definitively..............................................................40
B. The PFTs Anticipated Arguments against Exclusive Jurisdiction Lack Merit
.......................................................................................................................45
VII. CONCLUSION .............................................................................................48
APPENDICES
CERTIFICATION

ii

TABLE OF AUTHORITIES
Cases
Appeal of Cumberland Valley Sch. Dist.,
483 Pa. 134, 394 A.2d 946 (1978)..................................................... 27, 28, 30, 31
Appeal of Watson,
377 Pa. 495, 105 A.2d 576, cert. denied, 348 U.S. 879 (1954) ...........................35
Bd. of Pub. Educ. Sch. Dist. of Phila. v. Intille,
401 Pa. 1, 163 A.2d 420, cert. denied, 364 U.S. 910 (1960) ...............................36
Burger v. Bd. of Sch. Directors of McGuffey Sch. Dist.,
576 Pa. 574, 839 A.2d 1055 (2003)............................................................... 26, 36
Burke ex rel. Burke v. Independence Blue Cross,
103 A.3d 1267 (Pa. 2014).....................................................................................45
Cali v. City of Philadelphia,
406 Pa. 290, 177 A.2d 824 (1962)........................................................................17
Capecci v. Joseph Capecci, Inc.,
392 Pa. 32, 139 A.2d 563 (1958)..........................................................................16
Casino Free Philadelphia v. Pennsylvania Gaming Control Bd.,
594 Pa. 202, 934 A.2d 1249 (2007)......................................................................42
Cerra v. East Stroudsburg Area Sch. Dist.,
450 Pa. 207, 299 A.2d 277 (1973)........................................................................36
City of Erie v. v. Workers' Comp. App. Bd. (Annunziata),
575 Pa. 594, 838 A.2d 598 (2003)........................................................................16
Commonwealth v. 2101 Cooperative, Inc.,
408 Pa. 24, 183 A.2d 325 (1962)..........................................................................17
Commonwealth v. Bigelow,
484 Pa. 476, 399 A.2d 392 (1979)................................................................. 23, 24
Commonwealth v. Cherney,
454 Pa. 285, 312 A.2d 38 (1973)..........................................................................39

iii

Commonwealth v. Davidson,
595 Pa. 1, 938 A.2d 198 (2007)............................................................................17
Commonwealth v. Jones,
593 Pa. 295, 929 A.2d 205 (2007)........................................................................46
Commonwealth v. Kerstetter,
94 A.3d 991 (Pa. 2014).........................................................................................33
Commonwealth v. Mazzetti,
615 Pa. 555, 44 A.3d 58 (2012)..................................................................... 23, 24
Commonwealth v. McCoy,
599 Pa. 599, 962 A.2d 1160 (2009)......................................................................16
Community Coll. of Beaver Cty. v. Community Coll. of Beaver Cty., Soc'y of the
Faculty (PSEA/NEA),
473 Pa. 576, 375 A.2d 1267 (1977)......................................................................16
DePaul v. Commonwealth,
600 Pa. 573, 969 A.2d 536 (2009)........................................................................42
DePaul v. Kauffman,
441 Pa. 386, 272 A.2d 500 (1971)................................................................. 38, 39
In re Employees of Student Servs., Inc.,
495 Pa. 42, 432 A.2d 189 (1981)..........................................................................48
Fonner v. Shandon, Inc.,
555 Pa. 370, 724 A.2d 903 (1999)........................................................................23
General Motors Corp. v. Romein,
503 U.S. 181 (1992) ....................................................................................... 37-38
Kirsch v. School Dist. of Philadelphia,
563 Pa. 513, 762 A.2d 1081 (2000)......................................................................43
Kirsch v. School Dist. of Philadelphia,
563 Pa. 345, 761 A.2d 540 (2000)........................................................................43
Klopp v. Keystone Ins. Co.,
528 Pa. 1, 595 A.2d 1 (1991)................................................................... 22, 30, 33
iv

Kozura v.Tulpehocken Area Sch. Dist.,

568 Pa. 64, 791 A.2d 1169 (2002) .......................................................................16
Landay v. Rite-Aid of Pa., Inc.,
104 A.3d 1272 (Pa. 2014).....................................................................................37
Local 22, Philadelphia Fire Fighters' Union, IAFF, AFL-CIO v. Commonwealth,
531 Pa. 334, 613 A.2d 522 (1992)........................................................................42
Mabey Bridge & Shore, Inc. v. Schoch,
666 F.3d 862 (3d Cir. 2012) .................................................................................38
Malone v. Hayden,
329 Pa. 213, 197 A. 344 (1938)............................................................................35
Morrisville Sch. Dist. v. PLRB,
687 A.2d 5 (Pa. Cmwlth. 1996)............................................................................31
Mulligan v. Sch. Dist. of Hanover Tp.,
241 Pa. 204, 88 A. 362 (1913)..............................................................................26
Northside Urban Pathways Charter Sch. v. State Charter Sch. App. Bd.,
56 A.3d 80 (Pa. Cmwlth. 2012), app. denied, 621 Pa. 685, 76 A.3d 540
(2013)....................................................................................................................26
Olshansky v. Montgomery Cty. Election Bd.,
488 Pa. 365, 412 A.2d 552 (1980)........................................................................31
Patton v. Worthington Assocs., Inc.,
89 A.3d 643 (Pa. 2014).........................................................................................35
Pennsylvania State Troopers Ass'n v. Commonwealth, Gaming Control Bd.,
591 Pa. 561, 920 A.2d 173 (2007)........................................................................43
Philadelphia Federation of Teachers, AFT, Local 3, AFL-CIO v. School District of
Philadelphia,
2015 WL 263941 (Pa. Cmwlth. Jan. 22, 2015) ............................................ passim
Philadelphia Federation of Teachers, AFT, Local 3, AFL-CIO v. School Dist. of
Philadelphia,
610 Pa. 452, 21 A.3d 679 (2011)..........................................................................44

Pittsburgh Palisades Park, LLC v. Commonwealth,

585 Pa. 196, 888 A.2d 655 (2005)........................................................................42
Reichley by Wall v. N. Penn Sch. Dist.,
533 Pa. 519, 626 A.2d 123 (1993)........................................................................36
Rike v. Com., Sec'y of Educ.,
508 Pa. 190, 494 A.2d 1388 (1985)......................................................................36
School Sec. Services, Inc. v. Duquesne City Sch. Dist.,
851 A.2d 1007 (Pa. Cmwlth. 2004), app. denied, 582 Pa. 690, 870 A.2d 325
(2005)....................................................................................................................39
School Reform Commission v. Philadelphia Federation of Teachers, Local 3, AFT,
AFL-CIO,
95 A.3d 269 (Pa. 2014)........................................................................ 8, 14, 32, 45
Snyder v. Murphy,
333 Pa. 305, 5 A.2d 226 (1939)............................................................................35
South Union Tp. v. Commonwealth,
839 A.2d 1179 (Pa. Cmwlth. 2003), aff'd, 578 Pa. 564, 854 A.2d 476
(2004)............................................................................................................. 37, 38
Spahn v. Zoning Bd. of Adjustment,
602 Pa. 83, 977 A.2d 1132 (2009) .......................................................................36
Spigelmire v. Sch. Dist. of Borough of N. Braddock,
352 Pa. 504, 43 A.2d 229 (1945)..........................................................................35
Toy v. Metropolitan Life Ins. Co.,
593 Pa. 20, 928 A.2d 186 (2007)..........................................................................36
United States v. Schooner Peggy,
1 Cranch 103 (1801) .............................................................................................15
Walsh v. Sch. Dist. of Philadelphia,
343 Pa. 178, 22 A.2d 909 (1941), cert. denied, 315 U.S. 823 (1942)..................35
West Philadelphia Achievement Charter Elem. Sch. v. School Dist. of Philadelphia,
No. 31 EM 2014 (May 15, 2014) .........................................................................44

vi

Wilchenski v. Sch. Dist. of Bor. of Throop,

383 Pa. 394, 119 A.2d 510 (1956)........................................................................35
William Penn Parking Garage, Inc. v. City of Pittsburgh,
464 Pa. 168, 346 A.2d 269 (1975)................................................................. 38, 39
Constitutional Provisions
Constitution of Pennsylvania
Article I, 17 ......................................................................................................37
Statutes
Act of April 27, 1998, P.L. 270, No. 46 .......................................................... passim
Section 27, Act 46 of 1998...................................................... 1, 9, 14, 40-48
Section 28(a), Act 46 of 1998 .................................................... 9, 14, 27, 28
Act of October 30, 2001, P.L. 828, No. 83 ..............................................................10
Act of July 12, 2012, P.L. 1142, No. 141 ..................................................... 7, 10, 11
Judicial Code
42 Pa. C.S. 726 .........................................................................................44
Pennsylvania Intergovernmental Cooperation Authority Act for Cities of the First
Class, Act No. 6 of 1991, P.L. 9 (June 5, 1991), 53 P.S. 12720.101, et seq.
53 P.S. 12720.702 ....................................................................................43
Pennsylvania Race Horse Development and Gaming Act, Act No. 71 of 2004, P.L.
572 (July 5, 2004), 4 Pa. C.S. 1101, et seq................................................ 42-43
4 Pa. C.S. 1904 .........................................................................................43
Public Employe Relations Act, Act No. 195 of 1970, P.L. 563
(July 23, 1970), as amended, 43 P.S. 1101-101, et seq........................... passim
Public School Code of 1949, Act No. 14 of 1949, P.L. 30
(Mar. 10, 1949), as amended, 24 P.S. 1-101, et seq........................................28
vii

Section 211, 24 P.S. 2-211 .....................................................................26

Section 507, 24 P.S. 5-507 .................................................................2, 30
Section 664, 24 P.S. 6-664 .......................................................................2
Public School Code, Art. VI(f), Distressed School Law, added by
Act of Dec. 15, 1959, No. 675 of 1959, 2, P.L. 1842, 1844,
as amended, 24 P.S. 6-691 to 6-697 ...........................................................7, 35
Section 693(a)(1), 24 P.S. 6-693(a)(1)............................................. passim
Section 693(a)(5), 24 P.S. 6-693(a)(5).....................................................21
Section 693(a)(6), 24 P.S. 6-693(a)(6).....................................................21
Section 693(b), 24 P.S. 6-693(b) .............................................................11
Section 693(1), 24 P.S. 6-693(1) ...............................................................7
Section 696, 24 P.S. 6-696 .............................................................. passim
Section 696(a), 24 P.S. 6-696(a) ................................................................8
Section 696(e)(1), 24 P.S. 6-696(e)(1).......................................................8
Section 696(i), 24 P.S. 6-696(i) ....................................................... passim
Section 6-696(i)(2)(i), 24 P.S. 6-696(i)(2)(i) .............................................8
Section 696(i)(3), 24 P.S. 6-696(i)(3) ..................................................8, 44
Section 696(i)(7), 24 P.S. 6-696(i)(7) ..................................................8, 44
Section 696(k)(1), 24 P.S. 6-696(k)(1), repealed (Act of June 22, 2001,
P.L. 530, No. 35, 7) ............................................................................ 19, 32
Section 696(k)(2), 24 P.S. 6-696(k)(2) ......................................... 8, 32, 44
Section 696(k)(3), 24 P.S. 6-696(k)(3) ................................................9, 19
Section 696(k)(4), 24 P.S. 6-696(k)(4) ....................................................19
Section 696(k)(5), 24 P.S. 6-696(k)(5) ............................................ passim
viii

Section 696(k)(6), 24 P.S. 6-696(k)(6) ....................................................19

Section 696(l), 24 P.S. 6-696(l) .................................................................9
Public School Code, Art. VI-A, School District Financial Recovery
Law, added by Act of July 12, 2012, P.L. 1142, No. 141, 24 P.S.
6-601-A to 6-693-A.................................................................................. 10, 11
Section 642-A(a)(3), 24 P.S. 6-642-A(a)(3) ......................... 10, 11, 23, 24
Public School Code, Art. XI, Professional Employes, as amended,
24 P.S. 11-1101 to 11-1195.1
Section 1121, 24 P.S. 11-1121 .......................................................... 34-36
Public School Code, Art. XI-A, Collective Bargaining, as amended,
24 P.S. 11-1101-A 11-1172-A
Section 1111-A, 24 P.S. 11-1111-A ........................................................19
Section 1152-A, 24 P.S. 11-1152-A ........................................................19
Public School Code, Art. XX-A, State System of Higher Education, as amended,
24 P.S. 20-2001-A 20-2020-A
Section 20-2003-A, 24 P.S. 20-2003-A ....................................................20
Public School Code, Art. XVII-A, Charter Schools, as amended,
24 P.S. 17-1701-A to 17-1751-A ......................................................................8
Statutory Construction Act of 1972, Act of Dec. 6, 1972, P.L. 1339,
No. 290, 3, 1 Pa. C.S. 1501, et seq. .................................................................36
1 Pa. C.S. 1903(a) ....................................................................................36
1 Pa. C.S. 1921(a) ....................................................................... 22, 29, 47
1 Pa. C.S. 1922(1) ...................................................................................27
1 Pa. C.S. 1922(2) ...................................................................................48
1 Pa. C.S. 1922(4) ...................................................................................35
1 Pa. C.S. 1924 ........................................................................................17
ix

1 Pa. C.S. 1933 ........................................................................................31

Court Rules
Pennsylvania Rules of Appellate Procedure
Pa.R.A.P. 1114 .............................................................................................. 13, 15
Other Authorities
Blacks Law Dictionary (6th ed. 1990).....................................................................15
Blacks Law Dictionary (9th ed. 2009).....................................................................30
Websters New Collegiate Dictionary (1979) .........................................................15
2001 Pa. Legislative Journal House (Oct. 23, 2001) ........................................9, 20

I.

THE OPINIONS BELOW

The opinion of the Commonwealth Court may be found at 2015 WL 263941

(Pa. Cmwlth. Jan. 22, 2015). A copy of the slip opinion is attached hereto as
Appendix A. The opinion of the Court of Common Pleas for Philadelphia County
is unreported; a copy may be found at Appendix B of this Petition.
II.

THE ORDER IN QUESTION

The Commonwealth Courts Order reads in full as follows:
AND NOW, this 22nd day of January, 2015, the order of the Court of
Common Pleas of Philadelphia County, dated October 27, 2014, is
hereby affirmed.

III.

THE QUESTIONS PRESENTED FOR REVIEW

A.

Whether sections 693 and 696 of the Distressed School Law and Act
46 of 1998 authorized the School Reform Commission and the School
District of Philadelphia to cancel their collective bargaining
agreement with the Philadelphia Federation of Teachers and impose
new economic terms?

B.

Whether, in the alternative, this Court should exercise exclusive

jurisdiction over this case pursuant to section 27 of Act 46 of 1998
because it involves challenges to issues related to collective
bargaining arising under section 696 as well as constitutional
challenges to that section?
1

IV.

STATEMENT OF THE CASE

A.

The Underlying Facts

On October 6, 2014, the School Reform Commission (SRC), the

governing body of the School District of Philadelphia (School District), adopted
Resolution SRC-1, canceling the collective bargaining agreement between the
School District and its largest union, the Philadelphia Federation of Teachers,
AFT, Local 3, AFL-CIO (PFT). (R.229a.) The Resolution further authorized
the School District to implement changes principally in the health benefits package
of the PFT bargaining units, as well as in certain other economic terms described
more fully below. As authority for these steps, the Resolution cited sections 696(i)
and 693(a)(1) of the Public School Code, 24 P.S. 6-696(i), 6-693(a)(1). By
making these changes, the School District estimated it would save approximately
$54 million during the fiscal year ending June 30, 2015. (R.388a.)
These decisions followed a four-year downward spiral in the School
Districts funding. By statute, see 24 P.S. 5-507, the School District, which is a
school district of the first class, is the only district in the Commonwealth lacking
the power to impose taxes. (R.385a (14).) Its ability to operate is dependent
almost completely upon funding from the City of Philadelphia, the Commonwealth
and the United States. Deficit spending is prohibited by law. 24 P.S. 6-664
(requiring balanced budget).

By the Fall of 2014, four years of budget shortfalls had left the School
District a pale image of its former self. To make ends meet, the School District
had laid off thousands, losing one-third of its full-time staff, and closed 31 schools.
(R.383a (5).) The loss of so many guidance counselors, school nurses, teachers,
school police and assistant principals left schools severely understaffed. Deep
budget cuts decimated school cleaning and facilities maintenance and created
severe shortages in books, paper and school supplies, while programs in sports, art,
advanced placement, and career and technical education all suffered as well.
(R.383a (6); R.602a-603a.)
At the time of cancellation, these abject conditions in the Philadelphia
schools remained. (R.604a-605a.) The PFT did not dispute these facts. Indeed,
PFTs President conceded that the School District was failing to provide very
basic things . . . paper, toilet paper, hand sanitizer, books. (R.574a.) 1
The School District also took steps to reduce the compensation it pays its
remaining staff, which accounts for approximately 50% of its budget. The School
District imposed benefit changes and medical plan contributions on its nonunionized employees, and sought economic concessions from its unionized labor
1

In September, 2014, the General Assembly passed and the Governor signed an act authorizing
the City to place a $2-per-pack tax on cigarette sales, the proceeds of which were to be paid to
the School District. Even with this new tax in place, the undisputed evidence in the record
indicated that the School Districts funding for this fiscal year would fall short of covering its
expenses, that a deficit for the 2015-2016 fiscal year in the amount of $71 million loomed ahead,
and that the School District could not count on receiving sufficient funds in either year to remedy
the unsatisfactory conditions prevailing in its schools. (R.384a.)

force through collective bargaining. Those efforts yielded substantial economic

concessions from two of its employee organizations. However, the School District
was unable to reach an agreement with the PFT. (R.385a (17).)
The School Districts effort to reach a new contract with the PFT containing
substantial concessions began in January 2013, seven months before the thencurrent contract would expire on August 31, 2013. Bargaining continued beyond
expiration and throughout the 2013-2014 school year. The parties held more than
120 bargaining sessions, and exchanged hundreds of proposals (R.94a (24);
R.385a (17)), but at all times remained tens of millions of dollars apart. (R.385a.)
During nearly two years of negotiations, the generous health benefits
enjoyed by PFT-bargaining-unit employees were a key disputed issue. The School
District had been providing a premier Independence Blue Cross Personal Choice
health insurance plan, covering employees, their spouses and dependents. No
deductibles or co-insurance were required, and the monthly premiums (with some
exceptions) were paid 100% by the School District. No extra charge was made for
employees spouses who could have obtained health insurance paid for by their
own employers. The School District further contributed $4,353 per employee per
year (approximately $1 million per week) to a PFT-controlled Health and Welfare
Plan, covering dental, optical and prescription benefits to bargaining-unit members
and retirees.
4

While generous medical benefits like these were common a decade or so

ago, now most employers have shifted part of the burden of paying for them to
their employees. In light of its perennial funding shortages and rising costs, the
School District had no choice but to follow suit.
The chief health benefit changes announced by the School District on
October 6, 2014, included:
a Personal Choice plan that would provide the same medical coverage
(with minor exceptions) as the current plan, but would shift more of
the cost to the participant through co-pays, deductibles and coinsurance;
requiring that PFT-bargaining-unit employees contribute between 5%
and 13% of the premiums for the modified Personal Choice plan,
based on salary levels;
a new charge of $70 per pay period to insure an employees spouse
who declined coverage from his or her own employer; and
the cessation of the $1-million-a-week contributions to the PFTs
Health and Welfare Fund, to be replaced by a new plan administered
by the School District to cover dental, optical and prescription

benefits solely for current employees and their families (i.e., not
retirees). 2
B.

The Proceedings Below

The PFT responded on October 16, 2014 by filing a complaint in the Court
of Common Pleas of Philadelphia County, together with a request for a preliminary
injunction. (R.19a; R.49a.) An injunction hearing was held on October 20 at the
end of which the trial court issued a preliminary injunction. (R.689a.) The parties
stipulated to make the injunction permanent, while reserving their appellate rights,
and the trial court entered the Final Injunction Order on October 27, 2014.
(R.717a.) Petitioners immediately appealed, and the Commonwealth Court, at the
parties joint request, scheduled an expedited briefing and argument schedule
before an en banc panel of five judges. The Commonwealth Court issued its
Opinion and Order affirming the trial courts final order on January 22, 2015. This
petition is being timely filed.
C.

The Relevant Statutory Background

This case arises from a series of statutes and amendments imposing new
governance on school districts in financial distress, and granting the newly created

The changes described in text were estimated to save $39.5 million during the 2014-2015 fiscal
year. Further changes to compensation for substitute teachers, a legal services fund run by the
PFT, paid leave benefits, opt-out payments for those who declined health benefits, and benefits
received upon termination of employment would have saved another $4.3 million. An additional
$10 million in federal funds would have been realized had these changes gone into effect. The
changes included in the SRCs Resolution are described more fully at R.386a-388a.

governing boards special powers and authority to resolve the districts financial
difficulties.
The first of these statutes, passed in 1959, is known as the Distressed School
Law, Act of December 15, 1959, P.L. 1842, No. 675, codified in its current form at
24 P.S. 6-6916-697. It authorized the Secretary of Education to declare school
districts in distress and appoint special boards of control to supervise them.
Section 693 of the 1959 Law, which lies at the center of the present dispute,
gave the special board of control the power:
To cancel or to renegotiate any contract other than teachers contracts
to which the board or the school district is a party, if such cancellation
or renegotiation of contract will effect needed economies in the
operation of the districts schools. [24 P.S. 6-693(1).]3
In 1998, following a financial crisis in the School District in which it faced
the possibility of a systemwide shutdown, the General Assembly greatly expanded
the Distressed School Law by adding section 696, addressed exclusively to school
districts of the first class.4 This statute, the Act of April 27, 1998 (P.L. 270, No.
46), known as Act 46, gave the Secretary of Education the power to declare the
School District to be in distress, thereby suspending the existing school boards

In 2012, section 693(1) was recodified as section 693(a)(1). Act of July 12, 2012, P.L. 1142,
No. 141, Section 6. A copy of section 693 is appended hereto in Appendix C.
4

Section 696 of the School Code, 24 P.S. 6-696, is set forth in full in Appendix D.

powers and duties, and creating a new governing body the SRC in its stead. 24
P.S. 6-696(a) (SRC creation); 6-696(e)(1) (existing board suspension).
Act 46 granted the SRC sweeping powers to cope with the challenges
posed by financially distressed circumstances.

School Reform Commission v.

Philadelphia Federation of Teachers, Local 3, AFT, AFL-CIO, 95 A.3d 269, 270

(Pa. 2014) (Castille, C.J., dissenting). For example, after a declaration of distress,
Act 46 authorizes the SRC to suspend provisions of the Public School Code and
accompanying regulations, 24 P.S. 6-696(i)(3) (with several exceptions).

It

expressly relieves the School District from having to comply with certain
provisions of the Charter School Law. 5 24 P.S. 6-696(i)(2)(i). And, significantly,
section 696(i) gives the SRC all of the powers granted to a special board of control
under section 693. 24 P.S. 6-696(i) (incorporating 6-693 powers).
Section 696 also radically shifted the balance of power in the collective
bargaining process, SRC v. PFT, supra, curtailing union rights and expanding the
powers of the SRC and the School District. After a declaration of distress, the Act
authorizes the SRC to lay off professional employees without regard to seniority,
24 P.S. 6-696(i)(7); carves out a wide array of topics from the duty to bargain,
including subcontracting, decisions related to layoffs and recalls, and staffing
patterns and assignments, id., 6-696(k)(2)(i)(vi); requires certain provisions to
5

24 P.S. 17-1701-A, et seq.

be included in any collective bargaining agreement, id., 6-696(k)(3)(i)(iii); and

prohibits School District employees from engaging in any strike, id., 6-696(l).
Three provisions are most relevant to this Petition: (1) the power described
above to cancel . . . any contract conferred by sections 696(i) and 693(a)(1); (2)
section 28(a) of Act 46, which repealed the Public Employe Relations Act
(PERA), 43 P.S. 1101-101, et seq., insofar as it is inconsistent with the
provisions of the Public School Code; and (3) section 27 of Act 46, which grants
this Court exclusive jurisdiction to hear any challenge . . . concerning the
constitutionality of . . . section 696 of the act and issues related to collective
bargaining arising under [that] section[]. 6
Following the passage of Act 46, no declaration of distress issued until
December of 2001, more than three-and-a-half years later. Shortly before that
declaration, as the Governor and the Mayor of Philadelphia negotiated over which
entity would provide the funds to close a large School District budget gap, the
Governors Administration sponsored a group of amendments to Act 46. As the
House Majority Leader explained, the Governor has indicated to us that he wants
these additional tools in case it comes down to a takeover of the Philadelphia
public schools. Legislative Journal House (October 23, 2001) at 1890. 7

Neither section 28(a) nor 27 of Act 46 is codified in Purdons.

Excerpts from the Legislative Journal are appended hereto as Appendix E.

The amendments proposed by the Administration passed as part of the Act

of October 30, 2001 (P.L. 828, No. 83) (Act 83). In relevant part, Act 83
amended subsection (k)(5) of section 696, 24 P.S. 6-696(k)(5), by adding an
exception for section 693.
As originally enacted, section 696(k)(5) had provided that nothing in
subsection (k) would eliminate, supersede or preempt any provision of an existing
collective bargaining agreement . . . . After amendment, section 696(k)(5) read in
full as follows:
Except as specifically provided in section 693, nothing in this
subsection shall eliminate, supersede or preempt any provision of an
existing collective bargaining agreement until the expiration of the
agreement unless otherwise authorized by law. [24 P.S. 6-696(k)(5),
as amended (emphasis added to indicate added language).]
This amendment made clear that the SRCs powers under section 693, including
the power to cancel any contract, are an exception to 696(k)(5)s ban on
eliminating, superseding, or preempting collective bargaining agreements.
In 2012, the General Assembly passed the School District Financial
Recovery Act, 24 P.S. 6-601-A, et seq., overhauling the statutes governing
distressed school districts of the other four classes and greatly expanding their
scope. See Act of July 12, 2012, P.L. 1142, No. 141 (Act 141). In section 642A(a)(3), 24 P.S. 6-642-A(a)(3), Act 141 gave all other classes of school districts
the same power to cancel any contract to effect needed economies in the
10

operation of the districts schools that section 693 conferred upon the SRC. It did
so using language lifted directly from section 693(a)(1). However, section 642A(a)(3) went on to say something that section 693(a)(1) did not [c]ollective
bargaining agreements are specifically exempt from this clause. 24 P.S. 6-642A(a)(3).
Significantly, Act 141 also amended sections 693 as well as 696. See Act
141, 6, 9. The General Assembly thus had the opportunity to add an exemption
to section 693 or 696 like the one inserted in section 642-A(a)(3), making clear that
the power to cancel any contract did not apply to collective bargaining
agreements. But it declined to insert such an exemption in either section, thereby
ensuring that no such exemption could be implied in section 693(a)(1)s power to
cancel.8
V.

THE REASONS FOR GRANTING ALLOWANCE OF APPEAL

A.

The Question of the SRCs Statutory Power to Cancel the PFTs

Collective Bargaining Agreement and to Impose New Economic
Terms Is a Matter of Substantial Public Importance that Presents
Issues of First Impression and Requires a Prompt and Definitive
Resolution by this Court

The School District is by far the largest school district in Pennsylvania,

responsible for providing or funding the public education of approximately
200,000 children. Its success in performing these tasks is not only essential to the
8

Act 141 amended section 693 to clarify that it no longer applied to the other four classes of
school districts. 24 P.S. 6-693(b).

11

lives of those students, it is essential as well to the long-term vitality of the City of
Philadelphia and the Commonwealth.
In the last several years, the School District has faced drastic funding
shortfalls. In response, it has diligently acted to cut its costs to the bone, laying off
thousands of employees, closing schools, and cutting programs, the sad particulars
of which are described in part above.
After the School District was declared to be in distress in 2001, the SRC was
constituted to govern and oversee the School District. To assist the SRC in this
task, Act 46 gave the SRC powerful and unprecedented tools to use as needed to
address the School Districts financial woes. Those tools included the express
power to cancel . . . any contract other than teachers contracts to which . . . the
school district is a party, if such cancellation . . . will effect needed economies in
the operation of the districts schools. 24 P.S. 6-693(a)(1), incorporated in 6696(i).
For nearly two years, while the School District was making drastic cuts in all
other areas of its operations, it engaged in collective bargaining with the PFT in an
effort to reach a new contract that would contain needed economic concessions.
Those talks came to naught.
With the consensual processes of the past no longer working, the SRC
invoked for the first time section 693(a)(1) of the School Code, canceling the PFT
12

collective bargaining agreement, and putting in place changes in health benefits

and other economic terms. By doing so, the SRC sought to generate significant
savings that would have greatly enhanced the School Districts ability to restore
essential services and supplies to its students during this school year and in years to
come.
The courts below both barred the SRC and the School District from using
these statutory powers, but each gave different reasons for its decision. The trial
court held that the SRCs power to cancel expired in February, 2002, sixty (60)
days after the declaration of distress was issued. (Trial Ct. Op. at 10.) In the
alternative, it held that the PFTs contract fit within the exception to the power to
cancel for teachers contracts. (Id.) On appeal, the Commonwealth Court did
not agree with either of these holdings.

Instead, it adopted a statutory

interpretation for which neither party nor any of the four amici curiae had
contended that the SRCs power to cancel any contract contained a second,
unspoken exception for collective bargaining agreements. (Cmwlth. Ct. Op. at 24.)
The case undeniably presents a number of critical issues of first impression
that require prompt and definitive resolution by [this] Court.

Pa.R.A.P.

1114(b)(4). Does the SRCs power to cancel any contract to effect needed
economies apply to collective bargaining agreements? If so, does the School
District have the power, express or implied, to impose new economic terms,
13

irrespective of whether a bargaining impasse occurred?

Should the PERA

requirement to maintain the mandatory terms of a collective bargaining agreement

after its expiration be expanded to apply after a cancellation? If so, does section
28(a) of Act 46 of 1998 repeal the PERA rule as inconsistent? Does the agreement
between the PFT and the School District fall within section 693(a)(1)s exception
for teachers contracts, as the PFT contended below, or does that term refer
exclusively to the individual employment contracts the School Code requires
between school districts and their tenured teachers?
These questions of first impression are indisputably of substantial public
importance, and need a prompt and definitive resolution. Recognizing this, the
PFT agreed to expedited proceedings before the Commonwealth Court. That
Court also understood the urgency and importance of hastening the resolution of
the dispute over the SRCs powers. It accordingly scheduled expedited briefing,
added the case to its December 10 en banc list, and delivered an opinion, all in less
than three months from the filing of the appeal.
The General Assembly has also made clear its conviction that any
challenge . . . concerning . . . issues related to collective bargaining arising under
section 696 is of such public importance as to warrant this Courts attention. Act
46 of 1998, 27. See SRC v. Philadelphia Federation of Teachers, supra, 95 A.3d
at 270 (Castille, C.J., dissenting) (opining in favor of exclusive jurisdiction over
14

suit arising under section 696(k)(2)).

This special treatment for collective

bargaining disputes arising under section 696 is a potent indication of the public
importance the General Assembly assigned to matters like this, and the need for
prompt and definitive rulings on such issues by this Court.
The interplay between the enhanced powers granted by statute to a
financially distressed school district and a school districts collective bargaining
duties under PERA and other applicable law is an issue that cries out for this
Courts guidance.

The Court has yet to address that topic in a precedential

opinion.
The need for this Courts review in this case in particular could not be
clearer. The Opinion of the Commonwealth Court not only fails to provide a
definitive resolution 9 it is clearly and demonstrably wrong. The Courts core
holding that the power to cancel any contract must be construed to exempt
collective bargaining agreements (Op. at 24) is fundamentally flawed.

As

demonstrated below, this and other errors in the lower courts Opinion deprive the
SRC and the School District of the protections of Act 46 and call for a full airing
before this Court.
9

See Pa.R.A.P. 1114 (factors meriting allowance of appeal). A definitive resolution is one that
finally and completely ends and settles a controversy. Blacks Law Dictionary (6th ed. 1990)
(definition of definitive). See United States v. Schooner Peggy, 1 Cranch 103 (1801)
(Marshall, C.J.) (treaty calling for a definitive condemnation required a condemnation by the
court of last resort). See also Websters New Collegiate Dictionary (1979) (definitive means
authoritative and apparently exhaustive).

15

1.

Sections 693 and 696 of the Public School Code plainly and
unequivocally give the SRC the power to cancel any
contract, including collective bargaining agreements, and
the Commonwealth Court erred in holding to the contrary

Section 693(a)(1), incorporated in section 696 of the Public School Code,

provides that the SRC has the power [t]o cancel or to renegotiate any contract
other than teachers contracts to which the board or the school district is a party, if
such cancellation or renegotiation will effect needed economies in the operation of
the districts schools. 24 P.S. 6-693(a)(1) (emphasis added).
It is beyond dispute that a collective bargaining agreement is a contract.
Kozura v. Tulpehocken Area Sch. Dist., 568 Pa. 64, 71, 791 A.2d 1169, 1174
(2002) (fundamental principle that a collective bargaining agreement constitutes a
contract); Community Coll. of Beaver Cty. v. Community Coll. of Beaver Cty.,
Socy of the Faculty (PSEA/NEA), 473 Pa. 576, 595, 375 A.2d 1267, 1276 (1977)
([C]ollective bargaining agreements under the PERA are, of course, written
contracts); Capecci v. Joseph Capecci, Inc., 392 Pa. 32, 33, 139 A.2d 563, 564
(1958) (same).
Moreover, section 693(a)(1) says that the power to cancel applies to any
contract. (emphasis added). It is well-settled that any, when used in a statute,
means every or all. Commonwealth v. McCoy, 599 Pa. 599, 611, 962 A.2d
1160, 1167 (2009) (every); City of Erie v. Workers Comp. App. Bd.
(Annunziata), 575 Pa. 594, 607, 838 A.2d 598, 606 (2003) (all); see also
16

Commonwealth v. Davidson, 595 Pa. 1, 35-36, 938 A.2d 198, 219 (2007) (the
term any . . . suggests a lack of restriction or limitation). And, of course, the
fact that section 693(a)(1) expressly lists a single exception for teachers
contracts means that no additional exceptions can be inferred, since
[e]xceptions expressed in a statute shall be construed to exclude all others. 1
Pa.C.S. 1924. Accord Cali v. City of Philadelphia, 406 Pa. 290, 305, 177 A.2d
824, 832 (1962) (exception in election code for certain offices prevented implying
additional exceptions); Commonwealth v. 2101 Cooperative, Inc., 408 Pa. 24, 24,
183 A.2d 325, 330 (1962) (where statute expressly exempted only nonprofit
agricultural cooperatives from tax, other types of nonprofit cooperatives were not
exempt).
In short, the plain language of section 693(a)(1) and settled principles of
statutory construction require a holding that the power to cancel applies to
collective bargaining agreements.
Given this natural and straightforward reading of section 693(a)(1), it is not
surprising that in both courts below, no party nor any of the four amici curiae
thought to argue that the term any contract in section 693(a)(1) somehow
exempted collective bargaining agreements. Indeed, the PFT agreed with the
School District defendants that the PFT collective bargaining agreement was a
contract within the meaning of that provision. PFT contended instead that its
17

collective bargaining agreement fell within the exception for teachers contracts
in section 693(a)(1), and therefore could not be canceled. 10
The Commonwealth Court, however, opted for a reading that no one had
advanced. In an effort to explain its ruling that the term any contract in section
693(a)(1) does not include collective bargaining agreements, the Court reasoned:
the School Code separately addresses contracts and CBAs throughout, and . . . if
it intended that a contract and a CBA were one and the same, it would not
reference them individually in the pertinent sections of the School Code, namely
sections 693 and 696. (Op. at 24.)
This puzzling explanation the fulcrum of the Courts Opinion erred in its
logic as well as its facts. The term any contract in section 693(a)(1) refers to all
contracts in general.

The term collective bargaining agreement as used in

section 696 refers to one specific kind of contract a contract between an

employer and a collective bargaining representative. Using the term collective
bargaining agreement when referring specifically to such agreements does not
create an inference that when the statute speaks generally of contracts, collective
bargaining agreements are excluded. This would be like saying that the author of a
book about flowers intended the term flowers to exclude roses, because the
books chapter about roses referred to them consistently as roses.
10

The proper construction of the exception for teachers contracts is discussed below at pp. 3437.

18

Moreover, the Court was wrong as a factual matter to say that section 696 in
particular and the School Code in general always use the term collective
bargaining agreement and not contract when referring to collective bargaining
agreements. Section 696(k)(1), prior to repeal, referred to a collective bargaining
agreement as both a collective bargaining agreement and a contract. (See Op.
at 18) (quoting 6-696(k)(1).)

Further, in an obvious reference to collective

bargaining agreements, section 696(k)(4) states that [a] provision in any contract
in effect on the date of the declaration of distress under this subsection that is in
conflict with this subsection 11 shall be discontinued in any new or renewed
contract. 24 P.S. 6-696(k)(4) (emphasis added).12 And subsections 696(k)(5)
and (k)(6) both use a synonym for contract, i.e., agreement, to refer to a
collective bargaining agreement. In short, the General Assembly used the terms
collective bargaining agreement, contract and agreement interchangeably
when referring to collective bargaining agreements in section 696. The same is
true elsewhere in the School Code.13 The core holding of the Commonwealth
Courts Opinion cannot stand.

11

The term subsection refers to subsection (k) of section 696, which states at the outset that
[c]ollective bargaining . . . shall be conducted in accordance with this subsection.
12

Section 696(k)(4) follows section 696(k)(3), which set forth certain provisions that it made
mandatory in any future collective bargaining agreement.

13

See, e.g., 24 P.S. 11-1111-A (written contract incorporating agreement reached through
collective bargaining); id. 11-1152-A (provisions of any collective bargaining

19

a)

The court below misconstrued the 2001 amendments

to section 696(k)(5), which confirmed that the SRCs
power to cancel any contract includes collective
bargaining agreements

In October, 2001, shortly before the declaration of distress issued, the

General Assembly created an exception to section 696(k)(5), which had protected
collective bargaining agreement provisions from being eliminate[d], supersede[d],
or preempt[ed] by Act 46s rules governing collective bargaining. The exception
was for section 693 powers.
The addition of this exception to section 696(k)(5) clarified that the SRC,
using its section 693(a)(1) powers, could eliminate, supersede or preempt an
existing collective bargaining contract. 24 P.S. 6-696(k)(5).

The legislative

history of the debate on this amendment in the House supports this conclusion.
When a member of the minority party asked the House Majority Leader
whether the proposed exception of section 693 powers from section 696(k)(5)
would enable the abrogation of collective bargaining agreements, the latter
answered affirmatively by quoting the power-to-cancel language of section
693(a)(1), and noting that [w]e only took out what was inconsistent with the act of
1959. Legislative Journal House (October 23, 2001) at 1892. This exchange
made it abundantly clear that the General Assembly adopted the October 2001
agreementshall continue valid until the expiration of such contract) (emphasis added); id.,
20-2003-A(c) (Collective bargaining agreementsshall remain in force for the term of the
contract) (emphasis added).

20

amendment to section 696(k)(5) with the express intent to allow the SRC to cancel
collective bargaining agreements. The inconsisten[cy] referred to by the House
Majority Leader was the conflict between section 693s power to cancel any
contract, including collective bargaining contracts, and section 696(k)(5)s ban on
eliminating, superseding or preempting collective bargaining contract provisions.
In its discussion of the legislative history, the Commonwealth Court
overlooked this interchange, despite its having been discussed prominently in the
parties briefs. The Court stated flatly: it is clear from this legislative history that
there was no discussion of the right to cancel a CBA . . . . (Op. at 31.)
The Commonwealth Courts analysis of the meaning of the amendment to
section 696(k)(5) was similarly flawed. Despite the emphasis the Court put on the
supposed need for an express statutory indication that the power to cancel any
contract included collective bargaining agreements, the Court denied that the
amendment to section 696(k)(5) had any effect on the provisions ban on
eliminating,

superseding

or

preempting

collective

bargaining

agreement

provisions.

The Court allowed that two of section 693s subsections

693(a)(5), (6) granted the SRC discretion to bypass[] certain provisions in

the PFT contract, but then concluded that section 696(k)(5), as amended in 2001,
does not . . . implicitly authorize the eliminating, superseding, or preempting of
CBA provisions. (Op. at 25-26.) This interpretation of the exception in section
21

696(k)(5) renders the October 2001 amendment a nullity and violates the Statutory
Construction Act of 1972, which provides: Every statute shall be construed, if
possible, to give effect to all its provisions. 1 Pa. C.S. 1921(a).
Surprisingly, the Courts discussion of the 2001 Amendment to section
696(k)(5) does not even discuss section 693(a)(1), the cancellation provision.
Surely, canceling a contract eliminate[s] the contracts provisions. Klopp v.
Keystone Ins. Co., 528 Pa. 1, 7 n.6, 595 A.2d 1, 4 n.6 (1991) (cancellation destroys
the force and effectiveness of the contract).

This omission is even more

perplexing in light of the October 2001 legislative history described above, in

which the power to cancel collective bargaining agreements in section 693(a)(1)
was the only subsection of section 693 that sparked legislative discussion.
Subsections 693(a)(5) and (6) were never even mentioned.
b)

The court below also misconstrued the significance of

the School District Financial Recovery Act of 2012,
which further confirmed the SRCs power to cancel
collective bargaining contracts

The General Assembly confirmed its intent to authorize the SRC to cancel
collective bargaining agreements most recently in the 2012 School District
Financial Recovery Act. As noted above, this Act gave other classes of school
districts the power to cancel contracts, but expressly exempted collective
bargaining agreements.

22

[W]here the legislature includes specific language in one section of a

statute and excludes it from another section, the language may not be implied
where excluded. Commonwealth v. Mazzetti, 615 Pa. 555, 569, 44 A.3d 58, 67
(2012). Moreover, where a section of a statute contains a given provision, the
omission of such a provision from a similar section is significant to show a
different legislative intent. Id. See also Commonwealth v. Bigelow, 484 Pa. 476,
484, 399 A.2d 392, 395 (1979) (same); accord Fonner v. Shandon, Inc., 555 Pa.
370, 378-79, 724 A.2d 903, 907 (1999).
Here, the Commonwealth Court read an implied exemption for collective
bargaining agreements into section 693(a)(1). It did so even though in 2012, the
General Assembly declined to amend section 693(a)(1) to include the exception
language it inserted in the otherwise nearly identical section 642-A(a)(3).
As justification for its action, the Commonwealth Court attempted to
distinguish this Courts decisions in Mazzetti and Bigelow by emphasizing that the
two statutes concerned different classes of school districts:
We fail to see how the General Assemblys exemption of CBAs from
the cancellation power of certain classes of distressed school districts
evidences its intent that the SRC, which is only relevant in distressed
school districts of the first class, impliedly maintains this power. [Op.
at 34.]
This reasoning misses the mark. Different sections of a statute containing
similar language are always different in some respect if they were identical, there
23

would be no need for both. In Mazzetti, for example, one provision, dealing with
violations

of

county

or

state

intermediate

punishments,

allowed

the

Commonwealth to seek a mandatory minimum at resentencing; the other provision,

for resentencing after revocation of probation, did not. While the two situations
were different, this Court held that the mandatory minimum language could not be
implied where the General Assembly had omitted it. Mazzetti, 44 A.3d at 67-68.
The fact that the two provisions were different is exactly the point.
Similarly, Bigelow concerned two different but very similar provisions. The
Court held that the language in one but missing in the other could not be implied
where the legislature had omitted it. 399 A.2d at 395.
The 2012 amendments addressed both section 693 and section 642-A(a)(3).
Both used very similar language to describe the power to cancel any contract.
The General Assembly inserted additional language in section 642-A(a)(3)
expressly exempting collective bargaining agreements from the power to cancel
any contract, but chose not to insert that exemption language in section 693(a)(1)
or 696. It follows that an exemption for collective bargaining agreements cannot
be implied in section 693(a)(1), where the Legislature declined to state one. This
additional error in the Commonwealth Courts reasoning further underscores the
need for independent review by this Court.

24

2.

Sections 693(a)(1) and 696(k)(5) authorize the SRC and the

School District to impose new economic terms following a
cancellation and the court below erred in holding otherwise

In addition to finding no power to cancel a collective bargaining contract,

the Commonwealth Court ruled that the School Code did not grant the SRC or the
School District the power to impose changed economic terms, either expressly or
impliedly. (Op. at 24, 29.) The Court went further and held that PERA prohibited
any such changes absent a bargaining impasse and that nothing in the Distressed
School Law repealed this aspect of PERA. (Op. at 23.)

Like the ruling on the

power to cancel, these holdings are mistaken as a matter of law.

a)

Sections 693(a)(1) and 696(k)(5) granted the SRC the

power to impose changed economic terms following a
cancellation of the collective bargaining contract

The power to cancel any contract in section 693(a)(1) authorizes the SRC
to impose unilateral terms following a cancellation. That provision authorizes
cancellation only if it will effect needed economies in the operation of the
districts schools.

24 P.S. 6-693(a)(1).

This express command that a

cancellation must effect needed economies constitutes an explicit statutory grant of

the power to impose new terms unilaterally.
Similarly, the exception in section 696(k)(5) for section 693 powers is an
express statutory grant of the power to impose terms. Section 696(k)(5) safeguards
the terms of collective bargaining agreements from change.

Section 693 is

expressly excepted from that rule. Hence, section 696(k)(5), as amended in 2001,
25

expressly authorizes cancellation for the purpose of changing terms of employment

that were set by collective bargaining agreements.
At the very least, the power to impose terms unilaterally following a
cancellation is implied. School districts in Pennsylvania enjoy the powers that are
conferred by statutory grant and necessary implication. Burger v. Bd. of Sch.
Directors of McGuffey Sch. Dist., 576 Pa. 574, 585, 839 A.2d 1055, 1061 (2003);
Mulligan v. Sch. Dist. of Hanover Tp., 241 Pa. 204, 207, 88 A. 362, 362 (1913). In
Burger, this Court held broadly: Section 211 of the School Code reflects the
General Assemblys explicit and open-ended confirmation of implied powers in
furtherance of school districts essential functions. Burger, 576 Pa. at 585, 839
A.2d at 1062. Accord Northside Urban Pathways Charter Sch. v. State Charter
Sch. App. Bd., 56 A.3d 80, 83-85 (Pa. Cmwlth. 2012), app. den., 621 Pa. 685, 76
A.3d 540 (2013). No function is more essential to a financially-distressed school
district than reducing its costs.
Burger and section 211, 24 P.S. 2-211, provide ample authority for an
implied power to impose terms unilaterally after cancellation. The whole point of
a statute authorizing a distressed school district to cancel a collective bargaining
agreement to reduce costs is to give it the option, when all less drastic measures
fail, of removing the constraint of a contract it can no longer afford. To hold that a
distressed school district has authority to cancel a collective bargaining agreement
26

to effect needed economies, but lacks any authority after cancellation to change
economic terms, would produce an absurd result.

See 1 Pa.C.S. 1922(1)

(presumption that legislature does not intend a result that is absurd, impossible of
execution or unreasonable).
The Commonwealth Court simply ignored this Courts precedent concerning
the broad express and implied powers of a school board. It ignored the express
statutory language requiring that a cancellation effect needed economies and
never addressed what significance that requirement had for the SRCs power to
impose. Instead, it merely stated repeatedly in conclusory fashion that no authority
to impose terms was granted. (Op. at 23, 24, 29, 38, 39.) This Court should grant
review to ensure that this case is decided in conformity with its precedents on the
express and implied authority of school districts.
b)

The court below further erred by rejecting section

28(a)s repeal of PERA as inapplicable and assuming
that PERA treats a cancellation the same as an
expiration

The Commonwealth Court relied heavily on this Courts decision in Appeal

of Cumberland Valley Sch. Dist., 483 Pa. 134, 143, 394 A.2d 946, 950 (1978),
holding that an employer must continue to honor a collective bargaining

27

agreements economic terms after the agreement expires, so long as bona fide
bargaining continues over a new contract.14 That reliance was misplaced.
Section 28(a) of Act 46 repealed PERA insofar as it is inconsistent with the
provisions of this act, i.e., the School Code. 15 Here, section 693(a)(1) expressly
authorizes the SRC to cancel any contract . . . if such cancellation . . . of contract
will effect needed economies in the operation of the districts schools. 24 P.S. 6693(a)(1). As shown above, this power applies to collective bargaining contracts,
and requires that the cancellation achieve needed economies. The power to cancel
to achieve needed economies is thus plainly inconsistent with any requirement
under PERA that the economic terms of employment cannot be altered after a
cancellation.

If the PERA rule applied to cancellations, and prohibited any

changes in the economic terms of employment, it would be impossible for a

cancellation to effect any economies in the operation of the schools.
The PERA status quo rule is likewise inconsistent with the express language
in section 696(k)(5), exempting section 693 from its scope. The very purpose of a
cancellation is to eliminate and supersede the terms of a collective bargaining
agreement by changing the terms of employment after cancellation.

14

As the court below noted, imposition of changed mandatory terms is permitted by Cumberland
Valley if bargaining reaches an impasse. (Op. at 19-22.)

15

References to this act in the Public School Code refer to the entire Code. 24 P.S. 1-101
(act means the School Code).

28

The Commonwealth Court never attempted to address the obvious

inconsistency between the PERA rule banning changes in economic terms and the
provisions in sections 693 and 696 requiring cost reductions and enabling contract
terms to be overridden. Instead, the Court simply insisted that in order to effectuate
a repeal of the PERA rule, the General Assembly had to insert express language
setting that rule aside. Yet, as noted above, the Court never came to grips with the
express language actually used in section 693(a)(1) and 696(k)(5) to which
Petitioners directed its attention.
This was mistaken. In construing a statute, the polestar is to ascertain and
effectuate the intention of the General Assembly and give effect to all its
provisions. 1 Pa.C.S. 1921(a). Here, instead of construing the words the General
Assembly actually did use in section 693(a)(1) and section 696(k)(5) to see if they
created an inconsistency with the PERA rule, the Court seemed to be insisting that
the Legislature use a different formulation of the Courts own devising. This
mirrored the Courts treatment of the power to cancel, where it ignored the broad
scope of the statutory term, any contract, and held that the only way the General
Assembly could authorize a power to cancel a collective bargaining agreement was
to use precisely those three words. See pp. 16-22, supra.
The Court further erred by assuming that a cancellation of a collective
bargaining agreement is no different than an expiration.
29

Blacks defines a

cancellation as [a]n annulment or termination of a promise or an obligation.

Blacks Law Dictionary (9th ed. 2009). After a cancellation, a contract is of no
further force or effect. Klopp v. Keystone Ins. Co., supra, 528 Pa. at 7 n.6, 595
A.2d at 4 n.6 (cancellation destroys the force and effectiveness of the contract)
(citation omitted). By contrast, an expiration occurs at the end of a contracts
agreed term, and is consistent with certain obligations continuing in effect postexpiration.

A financially distressed school district therefore has no duty to

continue complying with the mandatory terms contained in a collective bargaining

contract that has been canceled; the contracts terms no longer exist.
No case has ever held that the Cumberland Valley rule applies to
cancellation of a collective bargaining agreement, and sound policy reasons exist
for not making that leap.

That rule, borrowed from federal labor law, see

Cumberland Valley, 394 A.2d at 950-51, does not take into account the public
employers financial situation, and whether it can afford to keep maintaining the
economic status quo.

In most cases this is justified almost every public

employer, including school districts, can raise taxes or tap other revenue sources.
A school district of the first class, however, does not have its own taxing power.
24 P.S. 5-507 (denying first class school districts the power to levy and collect
taxes). It can only beseech the City and the Commonwealth for more funds.
Where, as here, the School District is in financial distress and unable to obtain
30

necessary funding, it defies reason to suppose that the General Assembly intended
and expected that the School District should be required to bargain indefinitely or
to declare an impasse and then litigate the impasse question for years before it can
obtain the right to cut its costs. See, e.g., Morrisville Sch. Dist. v. PLRB, 687 A.2d
5 (Pa. Cmwlth. 1996) (over three years to complete PLRB proceedings and court
appeals of unfair labor practice charge after declaration of impasse).
The General Assembly had both the power and good reasons to enact a
statute providing different rules for collective bargaining in distressed school
districts of the first class, in contrast to other classes of school districts or public
employers generally. Collective bargaining is not a constitutional right, but rather
a statutory one.16 The court below ignored the critical distinctions the General
Assembly drew between bargaining under Act 46 and under PERA, and between
school districts of the first class, which can cancel collective bargaining
agreements, and all other classes of school districts, which cannot.

The

Commonwealth Court thus erred in finding the Cumberland Valley rule to be

16

Section 696, which concerns only financially-distressed school districts of the first class, is
much more specific in its scope than PERA, which sets the collective bargaining rules for all
public employers in Pennsylvania with minor exceptions. Section 696 therefore controls under
well-established rules of statutory construction. 1 Pa.C.S. 1933 (specific statute controls
general); Olshansky v. Montgomery Cty. Election Bd., 488 Pa. 365, 370, 412 A.2d 552, 554
(1980) (same).

31

consistent with a distressed school districts use of the cancellation power to effect
sorely needed economies. 17
3.

Commonwealth Courts additional reasons for its ruling

also do not withstand scrutiny

In addition to its principal rulings, the Commonwealth Court found great

significance in what was not said in an opinion by former Chief Justice Castille,
dissenting from a per curiam denial of School District petition to file an exclusive
jurisdiction action.18 (Op. at 35-37, 39-40). In that case, which did not involve
cancellation of a collective bargaining agreement but rather the Districts powers
under a separate provision, section 696(k)(2), 24 P.S. 6-696(k)(2), then-Chief
Justice Castille dissented from the denial of the application on the ground that the
Court should not refuse to exercise statutory exclusive jurisdiction, particularly
given the important issues involved. In doing so, the dissent noted a number of
changes wrought by Act 46, but did not mention the power to cancel a collective
bargaining contract. From this the Commonwealth Court concluded: Such a

17

In another section of its Opinion, the Commonwealth Court misconstrued section 696(k)(1)
and the significance of its repeal in 2001. As enacted in 1998, section 696(k)(1) provided that
any collective bargaining agreement in effect at that time would have no further effect after it
expired. 24 P.S. 6-696(k)(1), repealed, Act of June 22, 2001, P.L. 530, No. 35, 7. By the time
this section was repealed in 2001, all the agreements in effect in 1998 had expired and new
contracts had taken their place, rendering section 696(k)(1) of no further force or effect. The
court below thus erred in assuming that the provision would have had continuing effect had it not
been repealed, and in concluding, based upon that misguided assumption, that the repeal
signified a clear intent by the legislature not to alter the status quo requirement. (Op. at 18.)
18

School Reform Commn v. Philadelphia Federation of Teachers, supra, 95 A.3d at 270.

32

significant change as the right to cancel a CBA would presumably have been duly
noted by then-Chief Justice Castille in this detailed overview. (Op. at 37.)
The former Chiefs dissent provides no support for the Commonwealth
Courts refusal to recognize a power to cancel a collective bargaining contract.
That power was not relevant to the issues before this Court at the time, and neither
party had raised it. Moreover, placing reliance on what a dissent from a per
curiam order did not say about an issue that was not before the Court is a rather
perilous technique for interpreting a statute. The preferred method for ascertaining
the legislatures intent is to focus on the statutes plain language.
Commonwealth v. Kerstetter, 94 A.3d 991, 1001 (Pa. 2014) (The plain language
of a statute is, as a general rule, the best indicator of . . . legislative intent). This
the Court failed to do.
Elsewhere, the Commonwealth Court questioned whether the SRCs
action constituted a cancellation of the parties agreement, concluding that the SRC
had not canceled the entire contract but only a select number of provisions. (Op. at
32.)

In fact, the SRCs Resolution SRC-1 expressly cancelled the collective

bargaining agreement. (R.229a.) As a result, the parties currently have no contract

whatsoever. Klopp, supra. The Resolution further stated that the SRC and the
School District intended to maintain salaries, other benefits, and certain work rules,
and did not change other practices described in the former agreement. However,
33

this decision to continue other terms of employment was completely voluntary on

Petitioners part and does not give rise to any contractual obligation.
4.

The collective bargaining agreement between the School

District and the PFT is not a teachers contract within the
meaning of section 693(a)(1)

In the courts below, a major focus of the PFTs argument was that its
collective bargaining agreement with the School District was exempt from
cancellation under the exception for teachers contracts in section 693(a)(1).
The Commonwealth Courts Opinion acknowledged both sides arguments on this
point, but declined to decide the issue. Because the trial court relied on this
ground, and the PFT will no doubt raise it in its response to this Petition, we are
obliged to address it.
The term teachers contracts has long had a specific and definite meaning
in Pennsylvania law. It refers to the individual employment contracts that each
school district has with its tenured teachers pursuant to 24 P.S. 11-1121. In
addition to protecting public school teachers from arbitrary dismissal, and
providing a discharged tenured teacher notice and a hearing, the School Code
provides that each tenured professional employe a term that includes teachers
must receive a written employment contract in the form set forth verbatim in
section 1121.

The statute further prohibits any variance in the terms of the

statutory contract. It is these identically-worded statutory employment contracts

34

that are the sole object of the exception for teachers contracts in section
693(a)(1).
At the time that section 693 was enacted in 1959 as part of the Distressed
School Law, the Supreme Court had already referred in numerous cases to the
individual employment contracts set forth in section 1121 in the plural as
teachers contracts, or in the singular as a teachers contract.

See, e.g.,

Wilchenski v. Sch. Dist. of Bor. of Throop, 383 Pa. 394, 396, 119 A.2d 510, 512
(1956); Appeal of Watson, 377 Pa. 495, 500, 105 A.2d 576, 579, cert. denied, 348
U.S. 879 (1954); Spigelmire v. Sch. Dist. of Borough of N. Braddock, 352 Pa. 504,
507, 43 A.2d 229, 230 (1945); Walsh v. Sch. Dist. of Philadelphia, 343 Pa. 178, 22
A.2d 909, 912 (1941), cert. denied, 315 U.S. 823 (1942); Snyder v. Murphy, 333
Pa. 305, 306, 5 A.2d 226, 227 (1939); Malone v. Hayden, 329 Pa. 213, 225, 197 A.
344, 353 (1938).
Where, as here, a court of last resort has construed the language used in a
statute, the General Assembly in subsequent statutes on the same subject matter
intends the same construction to be placed upon such language.

1 Pa.C.S.

1922(4); Patton v. Worthington Assocs., Inc., 89 A.3d 643, 649 n.6 (Pa. 2014).
Given this Courts repeated use of the term teachers contract to refer to the
individual employment contracts spelled out in section 1121 of the School Code,
when the General Assembly subsequently created an exception for teachers
35

contracts in section 693(a)(1) of the School Code, the reference must be

understood as intending to exempt precisely those section 1121 contracts from the
scope of the cancellation power.19
The exception for teachers contracts must be construed as meaning
section 1121 individual contracts for a second reason.

Under the Statutory

Construction Act of 1972, 1 Pa.C.S. 1501, et seq., when words and phrases in
a statute have acquired a peculiar and appropriate meaning, they shall be
construed according to such peculiar and appropriate meaning. Id. at 1903(a).
This includes terms that have acquired a special meaning in the law. See Spahn v.
Zoning Bd. of Adjustment, 602 Pa. 83, 112-13, 977 A.2d 1132, 1149-50 (2009)
(peculiar and appropriate meaning includes words or terms that have acquired a
particular meaning in the law); Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 35,
928 A.2d 186, 195-96 (2007) (bad faith had acquired a peculiar and appropriate
meaning in the law at time insurance bad-faith statute was enacted).
The term teachers contracts in section 693(a)(1) thus must be construed
according to the peculiar and appropriate meaning that it had in Pennsylvania

19

Since the passage of the Distressed School Law in 1959, this Court has continued to use the
term teacher (or teachers) contract exclusively to refer to section 1121 teacher tenure
contracts. See, e.g., Burger, supra, 576 Pa. at 581, 839 A.2d at 1059; Reichley by Wall v. N.
Penn Sch. Dist., 533 Pa. 519, 525-26, 626 A.2d 123, 127 (1993); Rike v. Com., Secy of Educ.,
508 Pa. 190, 195, 494 A.2d 1388, 1390 (1985); Cerra v. East Stroudsburg Area Sch. Dist., 450
Pa. 207, 211, 299 A.2d 277, 278-79 (1973); Bd. of Pub. Educ. Sch. Dist. of Phila. v. Intille, 401
Pa. 1, 4 n.3, 163 A.2d 420, 422 n.3, cert. denied, 364 U.S. 910 (1960).

36

law at the time section 693 was enacted the individual teachers contracts spelled
out word for word in section 1121. Landay v. Rite Aid of Pa., Inc., 104 A.3d 1272,
1283 (Pa. 2014) (When construing a statute, we must ascertain the intent of our
legislature based on the law at the time the statute was enacted or amended).
5.

Section 696 does not impair any contractual obligations or

constitute an unconstitutional delegation of legislative
power

In the Commonwealth Court, the PFT also argued at length that section
696s authorization of a power to cancel contracts violates the Contracts Clause of
the Pennsylvania Constitution, Art. I, 17, and also constitutes an unconstitutional
delegation of legislative powers. 20 Although the Commonwealth Court did not
reach these issues (Op. at 40-41, n.34), Petitioners are nonetheless obliged to
briefly address them. Neither constitutional challenge withstands analysis. 21
To sustain an impairment-of-contract challenge, PFT must demonstrate that
a change in state law has operated a substantial impairment of [its] contractual
relationship. South Union Tp. v. Commonwealth, 839 A.2d 1179, 1188 (Pa.
Cmwlth. 2003) (en banc), affd, 578 Pa. 564, 854 A.2d 476 (2004), citing General

20

The passages in PFTs Brief are appended hereto as Appendix F.

21

PFT did not raise these constitutional challenges until opening briefs were filed with the
Commonwealth Court simultaneously on November 24, 2014, after the parties had already
agreed to an expedited schedule for briefing and oral argument.

37

Motors Corp. v. Romein, 503 U.S. 181, 186 (1992). 22 However, black letter law
requires that the contract became effective before the statute did.

DePaul v.

Kauffman, 441 Pa. 386, 398, 272 A.2d 500, 506 (1971) (leases formed after date of
statute cannot be impaired by its passage); Mabey Bridge & Shore, Inc. v. Schoch,
666 F.3d 862, 874 (3d Cir. 2012) (under the Contract Clause, the contract in
question must preexist the passage of the state law), citing General Motors, 503
U.S. at 186.
Here, sections 693(a)(1) and 696(i) were enacted, respectively, in 1959 and
1998 long before 2010, when the parties entered into the expired collective
bargaining agreement that governed the parties relations in whole or in part until
its cancellation. Further, the declaration of distress was issued in 2001 and the
SRC, equipped with its cancellation power, was empaneled in 2002.

These

undisputed facts, without more, doom PFTs impairment-of-contract argument to

defeat.
PFTs delegation argument is similarly meritless. A delegation of legislative
power is valid if the basic policy choices are made by the legislature and the law
contains adequate standards to guide and restrain the exercise of the delegated
administrative functions. William Penn Parking Garage, Inc. v. City of Pittsburgh,
464 Pa. 168, 212-14, 346 A.2d 269, 291-92 (1975). PFT premised its delegation
22

The test for unconstitutional impairment of contract is the same under the Pennsylvania and
United States Constitutions. South Union Tp., supra, 839 A.2d at 1189.

38

argument on its assertion that the Legislature has not provided any standards that
would permit the SRC to cancel the [collective bargaining agreement] and
impose new economic terms and conditions of employment. (PFT Br. to Cmwlth.
Ct. at 68.)
The stated purpose of the Distressed School Law is to improve the
financial condition of a financially distressed school district.

School Sec.

Services, Inc. v. Duquesne City Sch. Dist., 851 A.2d 1007, 1013 (Pa. Cmwlth.
2004), app. denied, 582 Pa. 690, 870 A.2d 325 (2005). Consistent with that policy
goal, the statutes endowed the SRC with the cancellation power and enabled it to
cancel contracts that it can no longer afford in order to achieve needed economies
in the operation of the districts schools. 24 P.S. 6-693(a)(1), as incorporated in
6-696(i). This needed economies standard is more than sufficient to guide the
SRC in employing the cancellation power.
This Court has upheld delegations of authority guided by standards much
less precise than section 693(a)(1). See, e.g., William Penn, supra (authority to
invalidate tax if excessive and unreasonable); Commonwealth v. Cherney, 454
Pa. 285, 290-91, 312 A.2d 38, 41 (1973) (authority to set speed limits where
highway conditions make it safe); DePaul v. Kauffman, 441 Pa. at 393, 272 A.2d
at 504 (authority to withhold rent when dwelling unfit for human habitation).

39

In short, the General Assembly made the basic policy choices and the statute
contains an adequate standard to guide the SRCs conduct achieving necessary
economies through contract cancellation. A constitutional attack on delegation
grounds will not lie.
VI.

THE REASONS FOR EXERCISING EXCLUSIVE JURISDICTION

A.

In the Alternative, this Court Has Exclusive Jurisdiction over this

Matter Pursuant to Section 27 of Act 46 and Should Exercise that
Jurisdiction to Decide it Promptly and Definitively

When the General Assembly enacted Act 46, it structured the Acts
provisions so that a declaration of financial distress would trigger a fundamental
redrawing of the collective bargaining map for the School District and its labor
unions. The legislators foresaw that statutory challenges would likely be brought
concerning those fundamental collective bargaining changes, as well as
constitutional challenges to the SRCs section 696 powers. When that happened,
the General Assembly recognized it would be of critical importance to the parties
and the affected students to have those challenges resolved in a prompt and
definitive manner.
To ensure a prompt and definitive adjudication of those disputes, the
General Assembly included section 27 in Act 46. That provision creates exclusive
jurisdiction in this Court, inter alia, over constitutional challenges concerning
sections 691(c) and 696, as well as statutory issues related to collective bargaining
that arise under either of those provisions. It reads in full as follows:
40

The Pennsylvania Supreme Court shall have exclusive jurisdiction to

hear any challenge to or to render a declaratory judgment concerning
the constitutionality of sections 691(c) and 696 of the act [i.e., the
Public School Code] and issues related to collective bargaining arising
under those sections. The Supreme Court is authorized to take such
action as it deems appropriate, consistent with the Supreme Court
retaining jurisdiction over such a matter, to find facts or to expedite a
final judgment in connection with such a challenge or request for
declaratory relief. [ 27 of Act 46 of 1998, P.L. 270.]
In PFTs action below, it challenged the SRCs power to cancel its contract
and to change economic terms of employment to effect needed economies
pursuant to section 696.
Specifically, the PFTs statutory challenges included:
that the power to cancel expired on the 60th day after the December
21, 2001 declaration of distress issued by the Secretary of Education;
that the PFT contract fell within the exception to the power to cancel
for teachers contracts set forth in section 693(a)(1);
that the power to cancel did not confer authority to impose new
economic terms while bargaining continued over a new contract; and
that any such changes in the terms of the collective bargaining
agreement were prohibited by this Courts precedents under PERA.

41

Section 27 jurisdiction exists over these PFT challenges to the SRCs section
696 powers. Those challenge[s] . . . concern[] . . . issues related to collective
bargaining arising under section 696.
In addition to these statutory challenges, the PFT also challenged
Petitioners section 696 authority on the constitutional grounds described above.
(Op. at 40 n.34.)
These constitutional challenges based on impairment of contract and
unlawful delegation of legislative power trigger section 27 jurisdiction. They are
challenge[s] to or . . . concerning the constitutionality of sections 691(c) and 696
of the act . . . . 27 of Act 46 of 1998.
This Court has repeatedly upheld and exercised legislative grants of
exclusive jurisdiction in the rare circumstances in which they occur. The Gaming
Acts grant of exclusive jurisdiction over constitutional attacks on its provisions
has been exercised by the Court on several occasions; see, e.g., DePaul v.
Commonwealth, 600 Pa. 573, 576 n.1, 969 A.2d 536, 538 n.1 (2009); Casino Free
Philadelphia v. Pennsylvania Gaming Control Bd., 594 Pa. 202, 204, 934 A.2d
1249, 1250 (2007); Pittsburgh Palisades Park, LLC v. Commonwealth, 585 Pa.
196, 202, 888 A.2d 655, 658-59 (2005). See also Local 22, Philadelphia Fire
Fighters Union, IAFF, AFL-CIO v. Commonwealth, 531 Pa. 334, 336 n.1, 613
A.2d 522, 523 n.1 (1992) (exercising exclusive jurisdiction over both constitutional
42

and non-constitutional challenges to Pennsylvania Intergovernmental Cooperation

Authority Act and agreement issued under the Acts authority pursuant to 53 P.S.
12720.702).23
More directly on point, in 2000, this Court exercised exclusive jurisdiction
under section 27 in Kirsch v. School District of Philadelphia, No. 150 EM 2000.
There, the PFT challenged the constitutionality of Act 46, and sought preliminary
injunctive relief as well as a declaratory judgment. The Court denied the request
for preliminary injunctive relief, Kirsch v. School Dist. of Philadelphia, 563 Pa.
513, 762 A.2d 1081 (2000), and ordered the parties to submit briefs on the
constitutional issues as well as ripeness. Following receipt of the briefs and a
motion to dismiss for mootness, the Court ultimately dismissed the declaratory
judgment complaint as moot in a per curiam order. Kirsch v. School Dist. of
Philadelphia,563 Pa. 345, 761 A.2d 540 (2000).
More recently, this Court exercised section 27 jurisdiction over
constitutional claims concerning charter school issues arising under section

23

In Pennsylvania State Troopers Assn v. Commonwealth, Gaming Control Bd., 591 Pa. 561,
920 A.2d 173 (2007), an attempt to invoke exclusive jurisdiction was unsuccessful, for reasons
not applicable here. In that case, the plaintiff sought exclusive jurisdiction pursuant to 4 Pa.C.S.
1904, which limited exclusive jurisdiction to constitutional challenges to the Pennsylvania Race
Horse Development and Gaming Act (Gaming Act). This Court held that the petitioners
complaint did not represent a constitutional challenge, since, despite complaining about a lack of
separation of powers, the Complaint did not specifically aver that the Gaming Act is
unconstitutional. 591 Pa. at 570, 920 A.2d at 179. Here, PFT has gone on record to assert that
the power to cancel collective bargaining agreements in section 693(a)(1), which is incorporated
in section 696, is unconstitutional.

43

696(i)(3) in West Philadelphia Achievement Charter Elem. Sch. v. School Dist. of

Philadelphia, et al., No. 31 EM 2014 (Order Granting Petition in the Nature of a
Complaint for Declaratory Judgment and Injunctive Relief, May 15, 2014).
The Court has not been as receptive to requests that it exercise section 27
jurisdiction over statutory collective bargaining issues. In June 2011, the SRC and
the School District filed an Emergency Application for Extraordinary Relief under
42 Pa.C.S. 726, and an Exclusive Jurisdiction Complaint for Declaratory
Judgment invoking section 27 jurisdiction, along with other papers, at No. 80 EM
2011. The filings requested the Court to assume jurisdiction over an action that the
PFT had brought in the Court of Common Pleas, seeking to enjoin certain layoffs
made out of seniority order. This challenge arose under section 696(i)(7), 24 P.S.
6-696(i)(7), which expressly authorizes layoffs without regard to seniority. The
Court denied the various requests for relief in a per curiam order without
discussion.

Philadelphia Federation of Teachers, AFT, Local 3, AFL-CIO v.

School Dist. of Philadelphia, 610 Pa. 452, 21 A.3d 679 (2011).

In March of 2014, the SRC and the School District filed an Application for
Leave to File Original Process, accompanied by a declaratory judgment complaint,
seeking a declaration of the School Districts rights under section 696(k)(2), 24
P.S. 6-696(k)(2). That section expressly relieves the School District of the duty
to bargain over a wide array of listed topics. In a per curiam order, the Court
44

denied the Application without comment. Then-Chief Justice Castille dissented on

the exclusive jurisdiction question, joined by Justice Baer. SRC v. Philadelphia
Fed. of Teachers, 95 A.3d 269 (Pa. 2014) (Castille, C.J., dissenting).
The present case is distinguishable in several respects from the two prior
ones involving statutory collective bargaining issues. Neither the 2011 action nor
the 2014 action included constitutional challenges to section 696. In addition, this
case involves review of a case that the trial court and the Commonwealth Court
have already refined and narrowed, unlike either of the prior two cases. Both of
these differences militate in favor of exercising the Courts exclusive jurisdiction
in this matter.
B.

The PFTs Anticipated Arguments against Exclusive Jurisdiction

Lack Merit

The PFT likely will object to the exercise of section 27 jurisdiction in this
case. It may contend that it is too late for this Court to become involved; that
section 27 does not include appellate jurisdiction; that it did not bring any
constitutional challenges; and that section 27 does not apply to statutory collective
bargaining issues. None of these contentions has merit.
Regarding waiver, whether a court has exclusive jurisdiction over a case
poses a question of subject matter jurisdiction. It is axiomatic that subject matter
jurisdiction cannot be waived. Burke ex rel. Burke v. Independence Blue Cross,
103 A.3d 1267, 1276 (Pa. 2014) (subject matter jurisdiction not subject to waiver);
45

Commonwealth v. Jones, 593 Pa. 295, 304, 929 A.2d 205, 210 (2007) (same).
Hence, this assertion of exclusive jurisdiction is timely and has not been waived.
Appellate jurisdiction is not at issue here. Section 27 confers exclusive
jurisdiction upon this Court.

It does not distinguish between original and

appellate jurisdiction. When a matter is in this Courts exclusive jurisdiction, the

Court has jurisdiction over the case in its entirety, from beginning to end. If, as
happened here, the Respondents failed to bring their action in the right court, it is
of no consequence; this Court has exclusive jurisdiction to decide the cases
outcome.
Moreover, the questions before the Court in this case are first-impression
issues of statutory construction that are purely legal in nature. The standard of
review is de novo, and the scope of review is plenary. Consequently, it makes no
difference whether the Court views this matter as an appellate or an original
jurisdiction matter. If accepted by the Court, the parties would brief the law and
argue it (with the Courts permission) and then the Court would decide it.
In fact, the proceedings to date have served the purpose of conserving this
Courts scarce resources.

The Common Pleas Court took evidence at the

preliminary injunction hearing and created a record. The parties briefed the issues
before the Commonwealth Court and that Court has issued an opinion. Although
Petitioners respectfully submit that the Commonwealth Courts opinion is mistaken
46

on certain key points, even a wrong opinion below can lighten a reviewing courts
burden by winnowing and sharpening the issues for its focus.
The PFT attempts to cast its constitutional challenges to the statute in the
guise of a statutory construction argument designed to avoid constitutional
questions. However, this effort does not take it outside section 27s ambit. The
PFT did not merely raise a constitutional question that would ensue from one
interpretation; it flatly contended that the power to cancel a collective bargaining
agreement a power that the PFT conceded the statute granted was
unconstitutional. See Appendix F. The substance of the PFTs briefing on this
point was to raise constitutional challenges in the alternative.

Had the

Commonwealth Court agreed with the parties that the power to cancel applies to
collective bargaining agreements, it would have had to decide the constitutional
questions. Indeed, the Commonwealth Court noted that it did not need to reach the
constitutional issues because of its interpretation of the statute. (Op. at 40 n.34.)
Finally, section 27 is not limited to constitutional challenges. It plainly
grants jurisdiction over any challenge or declaratory judgment concerning the
constitutionality of sections 691(c) and 696 of the act and issues related to
collective bargaining arising under those sections.

Act 46 of 1998, 27

(emphasis added). To hold that only constitutional questions are authorized would
read the italicized language out of the statute, in violation of 1 Pa.C.S. 1921(a)
47

and 1922(2). Whenever possible each word in a statutory provision is to be given

meaning and not to be treated as surplusage. In re Employees of Student Servs.,
Inc., 495 Pa. 42, 52, 432 A.2d 189, 195 (1981).
For all of these reasons, Petitioners respectfully submit in the alternative that
this Court should exercise its section 27 exclusive jurisdiction and accept this
matter for briefing and argument on the merits.
VII. CONCLUSION
For the foregoing reasons, Petitioners respectfully request the Court to grant
them allowance to appeal the decision of the Commonwealth Court in this case, or,
in the alternative, to exercise its exclusive jurisdiction over this matter.
Respectfully submitted,
/s/ Richard L. Bazelon
Richard L. Bazelon
A. Richard Feldman
Lisa A. Barton
Bazelon, Less & Feldman, P.C.
One South Broad Street, Suite 1500
Philadelphia, PA 19107
(215) 568-1155
Mark A. Aronchick
Matthew A. Hamermesh
Hangley Aronchick Segal
Pudlin & Schiller, P.C
One Logan Square, 27th Floor
Philadelphia, PA 19103-6995
(215) 568-6200
Attorneys for Petitioners
48

Received 02/23/2015 Supreme Court Eastern District

APPENDIX A

APPENDIX B

COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) T. TAYLOR 11/04/2014

APPENDIX C

 6-693. Powers of special board of control, PA ST 24 P.S. 6-693

Purdons Pennsylvania Statutes and Consolidated Statutes

Title 24 P.S. Education
Chapter 1. Public School Code of 1949 (Refs & Annos)
Article VI. School Finances (Refs & Annos)
(F) Distressed School Districts (Refs & Annos)
24 P.S. 6-693
6-693. Powers of special board of control
Effective: January 8, 2013
Currentness

(a) Except as otherwise provided in subsection (b), when the special board of
control assumes control of a distressed school district, it shall have power and is
hereby authorized to exercise all the rights, powers, privileges, prerogatives and
duties imposed or conferred by law on the board of school directors of the
distressed district, and the board of school directors shall have no power to act
without the approval of the special board of control. In addition thereto, the special
board of control shall have power to require the board of directors within sixty (60)
days to revise the districts budget for the purpose of effecting such economies as it
deems necessary to improve the districts financial condition. To this end the
special board of control may require the board:
(1) To cancel or to renegotiate any contract other than teachers contracts to which
the board or the school district is a party, if such cancellation or renegotiation of
contract will effect needed economies in the operation of the districts schools.
(2) To increase tax levies in such amounts and at such times as is permitted by the
act to which this is an amendment.
(3) To appoint a special collector of delinquent taxes for the district who need not
2014 Thomson Reuters. No claim to original U.S. Government Works.

 6-693. Powers of special board of control, PA ST 24 P.S. 6-693

be a resident of the school district. Such special tax collector shall exercise all the
rights and perform all the duties imposed by law on tax collectors for school
districts. The superseded tax collector shall not be entitled to any commissions on
the taxes collected by the special collector of delinquent taxes.
(4) To direct the special school auditors of the department or to appoint a
competent independent public accountant to audit the accounts of the distressed
school districts.
(5) To dispense with the services of such nonprofessional employes as in his
judgment are not actually needed for the economical operation of the school
system.
(6) To suspend, in accordance with the provisions of section 1124 of the act1 to
which this is an amendment, such number of professional and temporary
professional employes as may be necessary to maintain a pupil-teacher ratio of not
less than twenty-six pupils per teacher for the combined elementary and secondary
school enrollments.
(b) The provisions of subsection (a) shall not apply to a school district of the first
class A, second class, third class or fourth class.
Credits
1949, March 10, P.L. 30, art. VI, 693, added 1959, Dec. 15, P.L. 1842, 2.
Amended 2012, July 12, P.L. 1142, No. 141, 6, effective in 180 days [Jan. 8,
2013].

Notes of Decisions (4)

Footnotes
1

24 P.S. 11-1124.
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 6-693. Powers of special board of control, PA ST 24 P.S. 6-693

24 P.S. 6-693, PA ST 24 P.S. 6-693

Current through 2014 Regular Session Acts 1 to 152, 154, 156, 159, 160, 170, 173
to 175 and 180
End of Document

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U.S. Government Works.

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APPENDIX D

 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

Purdons Pennsylvania Statutes and Consolidated Statutes

Title 24 P.S. Education
Chapter 1. Public School Code of 1949 (Refs & Annos)
Article VI. School Finances (Refs & Annos)
(F) Distressed School Districts (Refs & Annos)
24 P.S. 6-696
6-696. Distress in school districts of the first class
Effective: September 10, 2012
Currentness

(a) Within thirty (30) days of a declaration by the Secretary of Education that a
school district of the first class is distressed under section 691(c),1 a School Reform
Commission shall be established consisting of four members initially appointed by
the Governor and one member initially appointed by the mayor of the city
coterminous with the school district. The School Reform Commission shall be an
instrumentality of a school district of the first class, exercising the powers of the
board of school directors. The Governor shall appoint a chairman of the School
Reform Commission. At least three of the commission members, including the
member appointed by the mayor, must be residents of the school district.
(b) Membership of the School Reform Commission shall be as follows:
(1) Members appointed pursuant to this section shall serve terms as follows:
(i) Two of the members appointed by the Governor shall serve initial terms of
seven (7) years.
(ii) One of the members appointed by the Governor shall serve an initial term of
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

five (5) years.

(iii) One of the members appointed by the Governor shall serve an initial term of
three (3) years. Upon the expiration of the initial term of this member, the mayor
shall appoint an individual to fill this position.
(iv) The member appointed by the mayor shall serve an initial term of three (3)
years.
(v) After the expiration of each initial term:
(A) Members appointed by the Governor under subclauses (i) and (ii) shall be
appointed for a term of five (5) years.
(B) Members appointed by the mayor under subclauses (iii) and (iv) shall be
appointed for a term of four (4) years.
(2) Except as authorized in this subsection, no commission member may be
removed from office during a term. The Governor may, upon proof by clear and
convincing evidence of malfeasance or misfeasance in office, remove a
commission member prior to the expiration of the term. Before a commission
member is removed, that member must be provided with a written statement of the
reasons for removal and an opportunity for a hearing in accordance with 2 Pa.C.S.
Ch. 5 Subch. A (relating to practice and procedure of Commonwealth agencies)
and Ch. 7 Subch. A (relating to judicial review of Commonwealth agency action).2
(3) Upon the expiration of term or the occurrence of a vacancy in the office of a
commission member appointed by the Governor, the Governor shall appoint, with
the consent of a majority of the members elected to the Senate, the successor
member. Upon the expiration of term or the occurrence of a vacancy in the office
of a commission member appointed by the mayor, the mayor shall appoint the
successor member. An appointment to fill a vacancy shall be for the balance of the
unexpired term.
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

(4) A commission member shall hold office until a successor has been appointed
and qualified.
(5) A commission member may serve successive terms.
(6) No commission member may, while in the service of the School Reform
Commission, seek or hold a position as any other public official within this
Commonwealth or as an officer of a political party.
(7) Commission members shall be reimbursed for reasonable and necessary
expenses incurred in the performance of their official duties from funds of the
school district.
(b.1) Actions of the School Reform Commission shall be by a majority vote. A
majority of the commission members appointed shall constitute a quorum.
(b.2) Upon the issuance of a declaration by the Secretary of Education that a school
district of the first class is distressed under section 691(c), the Governor shall
appoint an interim chairman of the School Reform Commission, who shall have
the full power and authority of the School Reform Commission. The interim
chairman shall serve for a term not to exceed thirty (30) days. The interim
chairman may be appointed to the School Reform Commission pursuant to this
section.
(c) The School Reform Commission may suspend or dismiss the superintendent or
any person acting in an equivalent capacity.
(d) Deleted. 2001, Oct. 30, P.L. 828, No. 83, 1.
(e) The following shall apply:

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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

(1) The School Reform Commission shall be responsible for the operation,
management and educational program of the school district of the first class. The
powers and duties of the board of school directors of a school district of the first
class shall be suspended. All powers and duties granted heretofore to the board of
school directors of a school district of the first class under this act or any other law,
including its authority to levy taxes and incur debt, shall be vested in the School
Reform Commission until the Secretary of Education issues a declaration under
subsection (n).
(2) The School Reform Commission may enter into agreements necessary to
provide for the operation, management and educational programs of the school
district of the first class. The agreements shall include appropriate fiscal and
academic accountability measures. Academic accountability measures shall
include:
(i) Strategic goals and objectives for improving academic performance.
(ii) Methods setting forth how the strategic goals and objectives are to be achieved
and the specific methodology for evaluating results.
(f), (g) Deleted. 2001, Oct. 30, P.L. 828, No. 83, 1.
(h) The School Reform Commission shall be responsible for financial matters
related to the distressed school district of the first class and:
(1) All taxes authorized to be levied by a school district of the first class or for a
school district of the first class by a city or county of the first class on the date of
the declaration of distress shall continue to be authorized and levied in accordance
with this act and shall be transmitted to the school district. For the first fiscal year
or part thereof and every fiscal year thereafter in which the school district is
declared to be distressed, the amount appropriated or paid by the city or county to
the school district and the tax authorized by the city or county to be levied for the
school district or dedicated to the school district shall be an amount or tax not less
than the highest amount paid by the city or county to the school district or
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

authorized by the city or county to be levied for the school district or dedicated to
the school district during any of the three full preceding fiscal years. In addition,
the city of the first class shall provide to the school district of the first class all
other available local non-tax revenue, including grants, subsidies or payments
made during the prior year.
(2) In addition to the moneys collected under paragraph (1), the city of the first
class shall remit to the school district of the first class for each year that the school
district is declared distressed that portion of all other local tax revenue levied for a
full fiscal year by a city or county of the first class coterminous with a school
district of the first class that was allocated to the school district prior to the school
district being declared distressed in accordance with section 691(c).
(3) All taxes collected on behalf of a school district of the first class by any person
or entity, including a city or county of the first class, shall be promptly paid
following collection to the School Reform Commission for the benefit of the
school district.
(4) In the event the city or county of the first class does not meet the financial
obligations prescribed in this subsection, the Commonwealth may apply to that
obligation any amounts otherwise due from the Commonwealth to the city or
county of the first class, including, but not limited to, grants, awards and moneys
collected by the Commonwealth on behalf of the city or county of the first class.
Funds withheld shall be maintained in a separate account by the State Treasurer to
be disbursed as determined by the Secretary of Education in consultation with the
State Treasurer.
(5) The School Reform Commission shall adopt a budget.
(i) In addition to all powers granted to the superintendent by law and a special
board of control under section 6933 and notwithstanding any other law to the
contrary, the School Reform Commission shall have the following powers:
(1) To appoint such persons and other entities as needed to conduct fiscal and
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

performance audits and other necessary analyses.

(2) To enter into agreements with persons or for-profit or nonprofit organizations
to operate one or more schools. A school operated under this clause shall be funded
in accordance with the terms of the agreement.
(i) All applications to operate a charter school in a school year after a declaration
of distress is issued and all charter schools established after a declaration of
distress is issued shall not be subject to sections 1717-A(b), (c), (d), (e), (f), (g), (h)
and (i), 1722-A(c) and 1724-A.4
(ii) The School Reform Commission may suspend or revoke a charter pursuant to
section 1729-A.5
(3) To suspend the requirements of this act and regulations of the State Board of
Education except that the school district shall remain subject to those provisions of
this act set forth in sections 1073, 1073.1, 1076, 1077, 1078, 1080, 1732-A(a), (b)
and (c), 1714-B and 21046 and regulations under those sections.
(4) To employ professional and senior management employes who do not hold
State certification if the School Reform Commission has approved the
qualifications of the person at a salary established by the commission.
(5) To enter into agreements with persons or for-profit or nonprofit organizations
providing educational or other services to or for the school district. Services
provided under this clause shall be funded in accordance with the terms of the
agreement.
(6) Notwithstanding any other provisions of this act, to close or reconstitute a
school, including the reassignment, suspension or dismissal of professional
employes.
(7) To suspend professional employes without regard to the provisions of section
1125.1.7
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

(8) To appoint managers, administrators or for-profit or nonprofit organizations to

oversee the operations of a school or group of schools within the school district.
(9) To reallocate resources, amend school procedures, develop achievement plans
and implement testing or other evaluation procedures for educational purposes.
(10) To supervise and direct principals, teachers and administrators.
(11) To negotiate any memoranda of understanding under the collective bargaining
agreement in existence on the effective date of this section.
(12) To negotiate a new collective bargaining agreement.
(13) To delegate to a person, including an employe of the school district or a
for-profit or nonprofit organization, powers it deems necessary to carry out the
purposes of this article, subject to the supervision and direction of the School
Reform Commission.
(14) To employ, contract with or assign persons or for-profit or nonprofit
organizations to review the financial and educational programs of school buildings
and make recommendations to the School Reform Commission regarding
improvements to the financial or educational programs of school buildings.
(j) The board of school directors of the distressed school district of the first class
shall continue in office for the remainder of their terms during the time the district
is operated by the commission unless removed for neglect of duty under section
3188 by the court of common pleas or unless the director is elected to another
position not compatible with the position of school director or is appointed to a
position for which there is a requirement that the appointee shall hold no elective
office. The board of school directors shall perform any duties delegated to it by the
commission. The establishment of the School Reform Commission shall not
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

interfere with the regular selection of school directors for the school district of the
first class.
(k) Collective bargaining between employes and the school district of the first class
shall be conducted in accordance with this subsection. For purposes of collective
bargaining, as used in section 693 and this section: professional employe shall
have the meaning given in section 1101(1), and teacher shall have the meaning
given in section 1202-A.9
(1) Repealed. 2001, June 22, P.L. 530, No. 35, 7, imd. effective.
(2) No distressed school district of the first class shall be required to engage in
collective bargaining negotiations or enter into memoranda of understanding or
other agreements regarding any of the following issues:
(i) Contracts with third parties for the provision of goods or services, including
educational services or the potential impact of such contracts on employes.
(ii) Decisions related to reductions in force.
(iii) Staffing patterns and assignments, class schedules, academic calendar, places
of instruction, pupil assessment and teacher preparation time.
(iv) The use, continuation or expansion of programs designated by the School
Reform Commission as pilot or experimental programs.
(v) The approval or designation of a school as a charter or magnet school.
(vi) The use of technology to provide instructional or other services.
(3) A collective bargaining agreement for professional employes entered into after
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

the expiration of the agreement in effect on the date of the declaration of distress
shall provide for the following:
(i) A school day for professional employes that is equal to or exceeds the State
average as determined by the department. An extension of the school day resulting
from this requirement shall be used exclusively for instructional time for students.
(ii) The number of instructional days shall be equal to or exceed the State average
number of instructional days.
(iii) The School Reform Commission shall not increase compensation for
employes solely to fulfill the requirements under subparagraphs (i) and (ii).
(4) A provision in any contract in effect on the date of the declaration of distress
under this subsection that is in conflict with this subsection shall be discontinued in
any new or renewed contract.
(5) Except as specifically provided in section 693, nothing in this subsection shall
eliminate, supersede or preempt any provision of an existing collective bargaining
agreement until the expiration of the agreement unless otherwise authorized by
law.
(6) If upon the termination of a collective bargaining agreement in effect on the
date of the declaration of distress under this section a new collective bargaining
agreement has not been ratified, the School Reform Commission shall establish a
personnel salary schedule to be used until a new agreement is ratified.
(l) During the time the school district of the first class is under the direction of the
School Reform Commission, all school employes shall be prohibited from
engaging in any strike as defined in Article XI-A10 and section 301 of the act of
July 23, 1970 (P.L. 563, No. 195),11 known as the Public Employe Relations Act.
The Secretary of Education may suspend the certificate of an employe who
violates this subsection.
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 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

(m) Deleted. 2001, Oct. 30, P.L. 828, No. 83, 1.

(n) The Secretary of Education, only upon the recommendation of a majority of the
School Reform Commission, may issue a declaration to dissolve the School
Reform Commission. The dissolution declaration shall be issued at least one
hundred eighty (180) days prior to the end of the current school year and shall be
effective at the end of that school year. Except as otherwise provided in this
section, after dissolution the board of school directors shall have the powers and
duties of the School Reform Commission.
(n.1) When a declaration has been issued by the Secretary of Education under
section 691(c) and a School Reform Commission has been appointed under this
section, section 1705-B12 shall be suspended for school districts of the first class.
(n.2) Beginning in 2003, by August 31 of each year, the School Reform
Commission shall provide a report for the preceding school year regarding
progress made toward improvements in fiscal and academic performance in a
school district of the first class. The report shall be filed with the Governors
Office and with the chairman and minority chairman of the Education Committee
of the Senate and the chairman and minority chairman of the Education Committee
of the House of Representatives.
(o) The provisions of this section are severable. If any provision of this section or
its application to any person or circumstance is held invalid, the invalidity shall not
affect the remaining provisions or applications.
Credits
1949, March 10, P.L. 30, No. 14, 696, added 1998, April 27, P.L. 270, No. 46,
3, imd. effective. Amended 1998, Dec. 21, P.L. 1194, No. 154, 3, imd. effective;
2001, June 22, P.L. 530, No. 35, 7, imd. effective; 2001, Oct. 30, P.L. 828, No.
83, 1, imd. effective; 2002, June 29, P.L. 524, No. 88, 7, imd. effective; 2012,
July 12, P.L. 1142, No. 141, 9, effective in 60 days [Sept. 10, 2012].
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10

 6-696. Distress in school districts of the first class, PA ST 24 P.S. 6-696

Notes of Decisions (4)

Footnotes
1

24 P.S. 6-691.

2 Pa.C.S.A. 501 et seq., 701 et seq.

24 P.S. 6-693.

24 P.S. 17-1717-A, 17-1722-A, 17-1724-A.

24 P.S. 17-1729-A.

24 P.S. 10-1073, 10-1073.1, 10-1076, 10-1077, 10-1078, 10-1080,

17-1732-A, 17-1714-B, 21-2104.

24 P.S. 11-1125.1.

24 P.S. 3-318.

24 P.S. 11-1101, 12-1202-A.

10

24 P.S. 11-1101-A et seq.

11

43 P.S. 1101.301.

12

24 P.S. 17-1705-B.

24 P.S. 6-696, PA ST 24 P.S. 6-696

Current through 2014 Regular Session Acts 1 to 152, 154, 156, 159, 160, 170, 173
to 175 and 180
End of Document

2014 Thomson Reuters. No claim to original

U.S. Government Works.

2014 Thomson Reuters. No claim to original U.S. Government Works.

11

APPENDIX E

COMMONWEALTH OF PENNSYLVANIA
LEGISLATIVE JOURNAL
TUESDAY, OCTOBER 23,2001
SESSION OF 2001

185TH OF THE GENERAL ASSEMBLY

HOUSE OF REPRESENTATIVES
The House convened at 11 a.m., e.d.t.

THE SPEAKER PRO TEMPORE

(BRETT FEESE) PRESIDING
PRAYER
REV. ROBERT A. GRAYBILL, Chaplain of the House of
n
United
Representatives and pastor of ~ a u ~ h m aMemorial
Methodist Church, New Cumberland, Pennsylvania, offered the
following prayer:
Shall we pause in prayer:
0 Gracious God, we pause for a moment as this House
comes together for another day of work, a time to review reports
and share thoughts about the well-being of our Commonwealth.
I ask of You, 0 God, to hear our thanks as we stand quietly
before You.
We give You our sincere thanks for another night of rest. It
was a time to allow our bodies to be still, our minds to be quiet;
and our souls, 0 God, had a chance to sense Your peace within.
Please hear our thanks for the simple night of rest, for indeed it
was a gift from You, our God.
Though we had a good night, we lift up before You the many
people who cannot sleep because of their fears about the dark
cloud of terror that hangs over our land, because of their worries
about friends still missing and loved ones who are w i t h arm's
way of danger while they defend our freedom. Please touch
their hearts so they, too, can have a night of calm within their
soul.
0 God, we also give You thanks for another day to be alive.
We are able to get about the work that is before us; we are able
to face our challenges and find Your hope for a new day of
living. We thank You, God, for the simple gift of one new day
of life that You bestow upon each of us. But then again, we also
lift up before You the dear people whose new day is not bright.
It comes with much struggle to just exist, perhaps due to
sickness of body and mind, or their new day is clouded with
pain and fear of the unknown. Please touch their hearts so they,
too, can have a breath of new hope for the living of this day.
0 God, You have given to each of us a night of rest and a
new day to live. So keep us mindful throughout this day that
You have given us two beautiful gifts - a time to rest and a time
to work. Help us to live this day to its fullest, for it is a gift from
You, our God.
Amen.

No. 58

PLEDGE OF ALLEGIANCE
(The Pledge of Allegiance was recited by members and
visitors.)

JOURNAL APPROVAL POSTPONED

The SPEAKER pro tempore. Without objection, the approval
of the Journal of Monday, October 22, 2001, will be postponed
until printed. The Chair hears no objection.

HOUSE BILLS
INTRODUCED AND REFERRED
L. I. COHEN,
No. 2006 By
Representatives
BEBKO-JONES, CASORIO, CIVERA, CREIGHTON,
DiGIROLAMO, GEIST, GEORGE, HARHAI, HORSEY,
McGILL, MELIO, R. MILLER, WATSON, YOUNGBLOOD,
CRUZ and CORNELL
An Act amending Title 75 (Vehicles) of the Pennsylvania
Consolidated Statutes, further providing for driving under the influence
of alcohol or controlled substance and for surcharges.

Referred to Committee on JUDICIARY, October 23,2001.

No. 2060 By Representatives LEWIS, BENNINGHOFF,
BUNT, CAPPELLI, CIVERA, CLARK, COLAFELLA,
CREIGHTON, DeLUCA, J. EVANS, FAIRCHILD, FEESE,
FICHTER, FRANKEL, FREEMAN, GABIG, GEIST,
HARHAI, HASAY, HERMAN, HERSHEY, HESS, HORSEY,
JADLOWIEC, MACKERETH, MAJOR, MANN, McCALL,
McILHATTAN, R. MILLER, S. MILLER, PIPPY, SATHER,
SAYLOR, SCHRODER, SEMMEL, SHANER, B. SMITH,
SOLOBAY,
STEELMAN,
SURRA,
TANGRETTI,
E. Z. TAYLOR, TIGUE, TRELLO, WANSACZ, WATSON,
C. WILLIAMS, WOGAN, M. WRIGHT, YOUNGBLOOD,
YUDICHAK, COLEMAN, ROSS, ADOLPH, J. TAYLOR and
DeWEESE
An Act amending Title 20 (Decedents, Estates and Fiduciaries) of
the Pennsy!vania Consolidated Statutes, further providing for
distribution of property of absentee and for notice to absentee.

Referred to Committee on JUDICIARY, October 23, 2001

No. 2061 By Representatives CRUZ, YOUNGBLOOD,
SAINATO, LUCYK, METCALFE, MELIO, THOMAS,
TURZAI, CREIGHTON, ROBERTS, DeLUCA, DAILEY,
CLARK, SCHRODER, HORSEY, BLAUM, PALLONE,
TIGUE, PISTELLA, LEDERER and DeWEESE

1890

LEGISLATIVE JOURNAL--HOUSE

in place under Act 46 before the Empowerment Act actually

takes place. Is that correct?
Mr. PERZEL. We are changing provisions of Act 46 before
the enactment of Act 46, yes.
Mr. LESCOVITZ. Then the original legislation, in your
position, is flawed; that we need to change it before the act
takes place?
Mr. PERZEL. Mr. Speaker, I said before, we are adding
additional enhancements to the act.
Mr. LESCOVITZ. Mr. Speaker, under the original act, it is
my understanding that the Philadelphia School District had to
implement an evaluation of its schools. Do you know what the
cost of thatMr. PERZEL. That is the Empowerment Act, Mr. Speaker,
not Act 46.
Mr. LESCOVITZ. Under the Empowerment Act, do you
know if that evaluation is completed, and does that evaluation
have to be completed before a certain time period?
Mr. PERZEL. No, it is not completed, and I am not sure
about the timeframe of when it has to come back. I will find
that. I believe it is the end of this fiscal year.
Mr. LESCOVITZ. In listening to the Representative from
Beaver County, it is my understanding, though, this amendment
actually eliminates Philadelphia out of the Empowerment Act.
Is that true or not true?
Mr. PERZEL. They could not be put under a board of control
under the Empowerment Act.
Mr. LESCOVITZ. Let me repeat the question. If we pass this
amendment today or, I am sorry, SB 640 on concurrence, is
Philadelphia taken out of the original Empowerment Act?
Mr. PERZEL. No.
Mr. LESCOVITZ. Mr. Speaker, I want to go back to SB 640
on concurrence-The SPEAKER. Will the gentleman yield. I hate to interrupt
like this, but if I do not, I am sure I will forget.

LEAVE OF ABSENCE
LEAVE OF ABSENCE CANCELED
The SPEAKER. The Chair returns to leaves of absence and
recognizes the gentleman, Mr. Veon, who asks that the
gentleman, Mr. LaGROTTA, be placed on leave for the balance
of the day, and the gentleman, Mr. Kirkland, who is present on
the floor of the House, be taken from the leave list. Without
objection, leave will be granted and Mr. Kirkland will be placed
back on the active roll call.

CONSIDERATION OF SB 640 CONTINUED

The SPEAKER. Mr. Lescovitz, I apologize.
Mr. LESCOVITZ. Thank you.
Mr. Speaker, it is my understanding that once the provisions
in SB 640 are in place and in it is a commission that is set up,
that Philadelphia is taken out of the Empowerment Act. Is that
true or not true?
Mr. PERZEL. Only if the commission is ever activated.
Again, the mayor and the Governor can sit down and work out
their differences. It is not a condition that that has to happen.
City council could work in concert with the mayor and the

OCTOBER 23

Governor to work out their differences. This may never ever be

put into effect. They could work it out, Mr. Speaker.
Mr. LESCOVITZ. Mr. Speaker, why do we need then this
amendment if we are waiting for the mayor and the Governor
and the Secretary and the city council to work out a problem?
I am not sure why we need this legislation to create a
five-member independent board if we are waiting for the mayor
and the administration to work out their differences.
Mr. PERZEL. Governor Schweiker has indicated to us that
he wanted these additional tools in case it came down to a
takeover of the Philadelphia public schools. I do not think
anyone in this room wants to see that. We are hoping that they
work out their differences. We are hoping that the mayor and
the Governor can come to an agreement and never have to use
the different tools that are in this act. But in the meantime,
Governor Schweiker has asked for these additional tools. We
are here trying to move forward with his agenda. That is why,
Mr. Speaker.
Mr. LESCOVITZ. Thank you.
Mr. Speaker, again, if the commission is set up, though, in
the provisions of this act, Philadelphia will be taken out of the
Empowerment Act. Is that correct?
Mr. PERZEL. They would still remain under the
Empowerment Act and still could get money under the
Empowerment Act, but this would allow that board to be set up
that would be an oversight board.
Mr. LESCOVITZ. Mr. Speaker, in reviewing the amendment
that was inserted in the Senate, that is a different position than
what the staff on our side told our members. We were told that
if this is implemented and the commission is set up, the
PhiladelphiaThe SPEAKER. Has the gentleman concluded his
interrogation?
Mr. LESCOVITZ. I need to ask the speaker, what section is
he talking about that would permit them to stay in the
Empowerment Act?
Mr. PERZEL. Mr. Speaker, our staff person is over there
now talking to your people. We hope we can clarify it for you.
Mr. LESCOVITZ. Mr. Speaker, just a couple other
questions, because we are trying to clarify the discussion
between us.
It is my understanding, Mr. Speaker, that what takes place if
this provision goes in in SB 640 is it gives the Governor the
authority, instead of waiting 3 years to take over the
Philadelphia School District, that if they feel that the
requirements under the original act in 46 are in effect now, the
State actually takes over the Philadelphia School District by
implementing this commission.
Mr. PERZEL. That is correct, Mr. Speaker, but you have got
to keep in mind that this is not just an academic failure on the
part of the city of Philadelphia; it is a fiscal failure on top of
that. It is not just about the Empowerment Act, Mr. Speaker.
Mr. LESCOVITZ. I understand, Mr. Speaker.
So, Mr. Speaker, if the State empowers this new commission
or the Governor's Ofice believes that currently they do not
meet the provisions under the Act 46 and they empower this
new commission, it will be the State's responsibility for funding
the Philadelphia School District at that time?
Mr. PERZEL. That is not true, Mr. Speaker. First off, we are
hoping that the mayor and the Governor of the Commonwealth
of Pennsylvania sit down together, work out their differences.

1892

LEGISLATIVE JOURNAL--HOUSE

The SPEAKER. The lady is recognized.

Ms. MANDERINO. Thank you.
I am very disappointed about the action that we are being
asked to take tonight. I actually was very open-minded and
willing to wait and see what our new Governor meant when he
said to me personally and he said to so many members of our
caucus and I think this chamber that I am really going to need
your help with the School District of Philadelphia; I really think
that we can do this together, and he said that to us when we
were at a reception at the Governor's Office and he said that to
me personally and I know he said that personally to many
members on my side of the aisle, that I am going to need your
help with Philadelphia but I think we can do this together.
I was very open to considering all of the possibilities that
had been on the table with regard to governance of the
School District of Philadelphia if I thought it was going to be a
fair exchange for what I really think that we need to educate the
children in Philadelphia. I was really looking forward to
working together and receiving a proposal that addressed the
educational needs of the School District of Philadelphia, and
that is why I am so upset that here we are without any
cooperation, without any discussion, without waiting 8 days for
a report to see what it is we are talking about, that all of a
sudden we need these additional tools. For what? For a hammer
over the city of Philadelphia because we do not think that they
are sincere about wanting to work together? For what? Because
we have contracts that are waiting to be signed and people are
getting nervous because they do not want to wait for a report to
come out? For what? For reducing class size for the kids in
Philadelphia? I did not see that in here. For what are we being
asked for additional tools and how does that translate into
educating the children sitting in the School District of
Philadelphia?
I had a lot of hope about the process. My hope,
unfortunately, has been dashed by tonight's proceedings, and
I ask everyone to think seriously about how we move together
cooperatively, bipartisanly, in the spirit of the best interests of
the children of Philadelphia when we have again another
eleventh-hour, no-discussion, no-collaboration proposal that we
are being asked to consider and we still do not know, even if we
do all this, what difference will it make in making sure that the
kids in school have the resources, the textbooks, and get the
education that they need to become productive citizens. I think
it is a shame we have moved this way, and I am voting "no."

LEAVE OF ABSENCE CANCELED

The SPEAKER. The Chair notes the presence on the floor of
the House of the gentleman, Mr. Maher, and asks the clerk to
remove him from the leave list.

CONSIDERATION OF SB 640 CONTINUED

The SPEAKER. The Chair recognizes the gentleman,
Mr. Cohen, from the city of Philadelphia on the question of
concurrence.
Mr. COHEN. Thank you, Mr. Speaker.
Mr. Speaker, would the majority leader consent to
interrogation once more?
The SPEAKER. The gentleman indicates he will stand for
interrogation. You may proceed.

OCTOBER 23

Mr. COHEN. Mr. Speaker, in the section dealing with

collective bargaining, which in the version I have of
amendment 3800 of SB 640 is on page 6, under the act that we
are repealing, the language read, "NOTHING IN THIS
SUBSECTION SHALL ELIMINATE, SUPERSEDE OR
PREEMPT ANY PROVISION OF AN EXISTING
COLLECTIVE BARGAINING AGREEMENT UNTIL THE
EXPIRATION
OF
THE
AGREEMENT
UNLESS
OTHERWISE AUTHORIZED BY LAW," and we change the
place of the word "NOTHING in that sentence so that it
reads, "EXCEPT AS SPECIFICALLY PROVIDED IN
SECTION 693," which deals with the board of control, and it is
not in this bill, "NOTHING IN THIS SUBSECTION SHALL
ELIMINATE,
SUPERSEDE
OR
PREEMPT ANY
PROVISION
OF
AN
EXISTING
COLLECTIVE
BARGAMING AGREEMENT.. .."
Mr. Speaker, as lawyers for the city of Philadelphia read h s
section, it seems to be that you are exempting nonprofessional
employees from the provision that collective-bargaining
agreements will not be superseded. Is that a correct reading by
the lawyers ofthe city ofPhiladelphia, Mr. Speaker?
Mr. PERZEL. That was done, Mr. Speaker, because that
language was inconsistent with the act. Section 693 is what that
references to. That was an act that was put into place in 1959.
That act would still stay in existence after this act were passed
today by the General Assembly.
Mr. COHEN. Does not that reference serve to enable the
abrogation of collective-bargaining agreements?
Mr. PERZEL. What it says is, on page 185, not of the one
you have, it says, "To cancel or to renegotiate any contract other
than teachers' contracts to which the board or the school &strict
is a party, if such cancellation or renegotiation of contract will
effect needed economies in the operation of the district's
schools." It is already law; 1959, Mr. Speaker. We only took out
what was inconsistent with the act of 1959.
Mr. COHEN. Okay. I have no further questions for the
gentleman, Mr. Speaker.

THE SPEAKER PRO TEMPORE

(PATRICIA H. VANCE) PRESIDING
Mr. COHEN. Madam Speaker, I would like to be recognized
to speak.

The SPEAKER pro tempore. You may proceed.

Mr. COHEN. Thank you, Madam Speaker.
Madam Speaker, I hope the gentleman from Philadelphia is
right. The lawyers from Philadelphia, though, have a different
view as to the effect of this language.
One thing, however, that is absolutely crystal clear is this bill
allows an unelected Governor to control a school district in this
Commonwealth not only for the duration of his term but for
the duration of the term of his successor. Under this bill
Governor Schweiker will be able to make appointments who
will control the School District of Philadelphia through 2006.
Now, when Governor Schweiker became Governor in the
prime of his life, people wondered, why does he not want to run
for a full term? Well, it seems to me that thls proposal, at least
as far as the Philadelphia School District is concerned, gives
him power over the Philadelphia School District for 4 years
after he leaves office. For 4 years after he is out of the

APPENDIX F

Received 11/24/2014 Commonwealth Court of Pennsylvania

Received 02/23/2015 Supreme Court Eastern District

CERTIFICATION
This 23rd day of February, 2014, I certify that I am this day serving a true
and correct copy of this Petition via hand delivery upon the following persons,
which service satisfies the requirements of Pa. R.A.P. 121:

Deborah R. Willig, Esquire

Ralph J. Teti, Esquire
WILLIG, WILLIAMS & DAVIDSON
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
(215) 656-3600
Counsel for Respondents

/s/ A. Richard Feldman

A. Richard Feldman
BAZELON LESS & FELDMAN, P.C.
One South Broad Street, Suite 1500
Philadelphia, PA 19107
(215) 568-1155
Counsel for Petitioners