William Penn: Could Commonwealth Court decide whether or not the General Assembly is equitably funding public education?


Political Question?  Petitioners filed a Petition for Review in 2014.  At that time, Respondents filed Preliminary Objections in the Commonwealth Court.  One of Respondents arguments was whether or not the issues Petitioners raised were “political questions”.  

This started the Pleading phase of the lawsuit. Pleadings are the time for initial objections to the lawsuit to be raised before the Court and well before trial.  

Political questions are one of the legal theories behind the separation of governmental branches in America.  This theory claims the legislative branch is only responsible to create policy, fix tax rates and set government spending limits.  The executive branch is only responsible to carry out the policies set by the legislative branch.  Finally, the judicial branch is responsible only to resolve legal issue arising within both branches while carrying out their respective roles.

Claiming Petitioners were raising political questions in this lawsuit was essentially claiming oversight of the General Assembly's funding of public schools is not the business of the Commonwealth Court.  The Commonwealth Court, sitting with all members present, agreed with Respondents, granted this Preliminary Objection and dismissed the lawsuit. 

Petitioners appealed the dismissal to the Pennsylvania Supreme Court (PA Supreme).  In 2015, the PA Supreme reversed the Commonwealth Court’s dismissal and sent both parties back to deal with Respondents’ remaining Preliminary Objections.

 Commonwealth Court: Round 2. Back where the lawsuit began again, this time the Commonwealth Court dismissed Respondents' remaining preliminary objections in 2017.*  The Pennsylvania General Assembly then enacted an “intervening change to the statutory funding scheme.”   Respondents filed a second Motion to Dismiss this lawsuit as moot referencing the new funding formula.  Commonwealth Court did not rule on this Motion to Dismiss and allowed Petitioners to amend their Petition for Review based upon the revised funding formula.  Petitioners chose not to revise their Petition.  The Commonwealth Court then dismissed Respondents' Second Motion to Dismiss in 2018.

With Respondents’ Preliminary Objections cleared away, Respondents filed formal answers to the original Petition for Review.  In addition, Respondents raised additional issues by filing New Matter.  Petitioners filed their replies to the New Matter and that closed the Pleadings portion of the lawsuit.


President Judge Jubelirer then was “specially” assigned to become the sole court member responsible for the administration of this case.

Discovery.  For the next two years, Petitioners and Respondents exchanged extensive discovery.  In discovery, the parties submit questions called interrogatories and requests for documents.  In addition, potential trial witnesses are asked questions under oath and with a court reporter present to record the questions and answers.  This proceeding is called a deposition.  This entire discovery process is intended for the parties to learn the strengths and weaknesses of the other parties’ legal position.   In many cases it may lead to a settlement prior to trial.  There was no settlement in this case.


Judge Jubeliler allowed extensions of time for the parties to prepare for trial.  Judge Jubeliler also ruled on conflicts over the discovery process.  In addition, Covid-19 (Covid) concerns were addressed within the pre-trial procedure.


On November 12, 2021 opening statements were presented in the trial of this case.


 *Despite the 2-7 Opinion stating that Respondents' remaining Preliminary Objections were dismiss during pleadings, the Opinion also referred to two issues, raised by Respondents, that normally would have been included in Preliminary Objections.  

Respondents alleged Petitioners should have joined all other Local Education Agencies (LEAs), Intermediate Units (IUs) and Charter schools in this lawsuit.  The Commonwealth Court denied this Preliminary Objection.  It sited prior PA Supreme decisions and discussed the terms necessary and indispensible, as used in those decisions, would not have included the LEAs, IUs and Charter schools.  See 2-7-23 Opinion Pages 605-611

A final preliminary issue Respondents raised was that Petitioners should have also sued the PA House of Representatives and the PA Senate chambers. 
The Commonwealth Court also denied this claim as well.  The Commonwealth Court reasoned that the Senate President Pro Temp and Speaker of the House were sued in their representative capacity for each legislative body.  As a result they had been acting as agents for their respective chambers. See 2-7-23 Opinion Pages  611-615. 

My Opinion.  I agree with the PA Supreme Court's refusal to dismiss based upon the theory of political question.  I believe when the Education Clause is spelled out in the PA Constitution it allows for judicial review.  In addition, to separation of powers is the concept of checks and balances.  The Commonwealth Court was correct to review actions taken by the General Assembly and the effects of those actions within the public school across the state.

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