decided: April 13, 1971.
MANHEIM TOWNSHIP SCHOOL DISTRICT
STATE BOARD OF EDUCATION
Appeal to the Court of Common Pleas of Dauphin County at No. 254 C.D. 1969, in case of State Board of Education v. Manheim Township School District. Appeal transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.
John I. Hartman, Jr., with him Windolph, Burkholder & Hartman, for appellant.
Benjamin Frank, Assistant Attorney General, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Mencer. Dissenting Opinion by Judge Manderino. Dissenting Opinion by Judge Crumlish, Jr.
[ 1 Pa. Commw. Page 629]
In State Board of Education v. South Middleton Township School District, 430 Pa. 457, 243 A.2d 350 (1968), the Supreme Court reaffirmed the principle announced in Esbenshade v. Department of Public Instruction, 181 Pa. Superior Ct. 232, 124 A.2d 478, aff'd. on opinion of court below, 387 Pa. 281, 127 A.2d 678 (1956), i.e., that the action of the State Board of Education in granting or refusing to grant an application for the change of boundary lines in a school district after land in that district has been annexed by another governmental unit is not subject to judicial review.
Appellant contends that Article V, Section 9,*fn1 of the Constitution of Pennsylvania adopted in 1968, effective January 1, 1969, now mandates a different result. Justice Pomeroy, in Smethport Area School District v. Bowers, 440 Pa. 310, 314, 269 A.2d 712, 715 (1970), stated: "This [Section 9] introduced a new concept to Pennsylvania jurisprudence, one which recognized the important position of administrative agencies in modern government, the quasi-judicial functions that many of them perform, and the fact that both property rights and personal rights can be seriously affected
[ 1 Pa. Commw. Page 630]
by their decisions. This section was not, of course, self-executing, and on December 2, 1968 the General Assembly adopted four statutes designed to implement it. They were Acts Nos. 351, 353, 354, and 355."
Act No. 354 is an amendment to the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.1 et seq., and provides for appeals from "agencies of the Commonwealth," as defined by that law. Section 51, 71 P.S. § 1710.51, after passage of Act No. 354, states that "all of the provisions of this act shall apply to . . . (6) State Board of Education." In the instant case, Manheim Township School District, appellant, seeks review of a decision of the Council of Basic Education which was affirmed by the State Board of Education.*fn2 This appeal by appellant follows the enactment of implementing Act No. 354 and the effective date of the new Judiciary Article which provides, in Section 9 thereof, that there shall be a right of appeal "from an administrative agency to a court of record or to an appellate court." The appellant must overcome the settled decisional law that the State Board of Education is a non-judicial agency, the orders of which are not judicial in nature and may not be reviewed by the courts; also, that an order entered by the State Board of Education, in performance of its duties and powers under §§ 227 and 228 of the Public School Code of 1949,*fn3 is not an adjudication within the meaning of the Administrative Agency Law. Esbenshade v. Department of Public Instruction, supra.
We conclude that appellant cannot overcome the law established in Esbenshade and that its appeal in the instant case must be dismissed.
The Legislature, when it enacted Act No. 354, could have declared, but did not, that an annexation determination
[ 1 Pa. Commw. Page 631]
by the Council of Basic Education, an adjunct and arm of the State Board of Education, is judicial in nature and adjudicative. Its failure to do so indicates an acceptance of previous interpretations by the courts in regard to these matters and creates a presumption that such previous interpretations are in accord with legislative intent. Comm. v. Willson Products, 412 Pa. 78, 194 A.2d 162 (1963). In Lock Estate, 431 Pa. 251, 262, 244 A.2d 677, 682 (1968), the Court, in its opinion, stated: "The Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, § 52, 46 P.S. § 552 provides in part as follows: 'In ascertaining the intention of the Legislature in the enactment of a law, the courts may be guided by the following presumption among others: . . . (4) That when a court of last resort has construed the language used in a law, the Legislature in subsequent laws on the same subject matter intend [sic] the same construction to be placed upon such language; . . .' It has been held, and rightly so, that where a decision of the Superior Court construing a statute was never modified by the Supreme Court, the presumption was that when the legislature subsequently enacted a similar statute dealing with the same subject matter, the legislature intended the same construction to be placed on the language of the subsequent statute. Duquesne Club v. Pittsburgh, 170 Pa. Superior Ct. 426, 87 A.2d 81 (1952); Toland v. Murphy Brothers, 172 Pa. Superior Ct. 484, 94 A.2d 156 (1953)."
An understanding of the impact of Esbenshade v. Department of Public Instruction, supra, on this appeal can best be achieved by a brief summary of the relevant events preceding the appeal. In 1952, a farm containing approximately 132 acres was annexed from Manheim Township, Lancaster County, to Lancaster City, for municipal purposes. On November 4, 1955, annexation of this land to the City, for school purposes, was denied
[ 1 Pa. Commw. Page 632]
by the State Council of Education,*fn4 under the provisions of Section 228 of the Public School Code of 1949, 24 P.S. § 2-228. A second denial followed on February 26, 1958. In 1967 the Council of Basic Education was asked to reconsider the decision of the State Council of Education, and on July 10, 1968, the Council rendered an affirmative decision and approved annexation of said 132 acres to Lancaster City School District. Appellant appealed this decision to the State Board of Education which, on March 14, 1969, upheld the decision of the Council of Basic Education, and thereafter appellant, on April 11, 1969, took this instant appeal.
An examination of the School Code will reveal that no right of appeal from the action of the State Board of Education was given in this type of matter, although in many other matters it is expressly given. Where the legislation is silent as to the right of appeal or does not say that the decision of the administrative agency shall be non-appealable, an appeal may be taken in the nature of broad certiorari. Delaware County National Bank v. Campbell, 378 Pa. 311, 106 A.2d 416 (1954). However, the precondition to review by certiorari is that the order or action of the agency, board or commission must be judicial in nature and final. Keystone Raceway Corporation v. State Harness Racing Commission, 405 Pa. 1, 173 A.2d 97 (1961); Ritter Finance Co., Inc. v. Myers, 401 Pa. 467, 165 A.2d 246 (1960).
This requirement of judicial in nature returns us to Esbenshade v. Department of Public Instruction, supra, where it was determined that the Council is a
[ 1 Pa. Commw. Page 633]
non-judicial agency and that its order entered under Section 228 of the Public School Code is not an adjudication within the meaning of the Administrative Agency Law. See Susquehanna Twp. School District v. Dept. of Public Instruction, 62 Dauph. 125 (1951); State Board of Education v. South Middleton Township School District, 86 Dauph. 361 (1966).
Even the Supreme Court, in the absence of statute, does not have the power to review directly by certiorari the findings or actions of a non-judicial administrative body where such judgment or proceeding is not judicial in nature. Newport Township School District v. State Tax Equalization Board, 366 Pa. 603, 79 A.2d 641 (1951); Short's Estate, 315 Pa. 561, 173 A. 319 (1934). Certainly this Court has no power to entertain this appeal by way of certiorari as distinguished from a statutorily conferred power of judicial review. See Foley Brothers, Inc. v. Commonwealth, 400 Pa. 584, 163 A.2d 80 (1960).
The decision as to the effect of annexation upon a school district of the third or fourth class is exclusively committed to the appellee's Council of Basic Education, under Section 228 of the Public School Code, 24 P.S. § 2-228. See Irwin Borough Annexation Case (No. 2), 165 Pa. Superior Ct. 134, 67 A.2d 765 (1949). Esbenshade v. Department of Public Instruction, supra, declared that the action of the State Board of Education will be final.
There remains only the question as to whether or not Section 9, Article V, of the Constitution confers a right of appeal from the decision of the Council of Basic Education as affirmed by the appellee to a "court of record or to an appellate court, the selection of such court to be as provided by law . . ."
We conclude that it does not, without statutory implementation. The wording of Section 9, although general and inclusive, does not provide an absolute or
[ 1 Pa. Commw. Page 634]
automatic right of appeal from any and all decisions of every administrative agency. We reiterate what Justice Pomeroy correctly stated in Smethport Area School District v. Bowers, supra, "this section was not, of course, self-executing . . ." The General Assembly must by statute implement this constitutional directive. Any doubt as to this conclusion is readily disspelled by the language of Section 9 itself which provides for "a right of appeal . . . from an administrative agency to a court of record or to an appellate court, the selection of such Court to be as prescribed by law. . ." (Emphasis supplied). This language envisions statutory implementation.
This conclusion is further reenforced by Justice Roberts in the case of The Conestoga National Bank of Lancaster and The Fulton National Bank of Lancaster v. G. Allen Patterson, Secretary of the Pennsylvania Department of Banking and American Bank and Trust Company of Pennsylvania, 442 Pa. 289, A.2d (1971), when he wrote: "We believe that this constitutional provision [Article V, Sec. 9] as implemented. . . mandates that both applicants and protesting banks have an appeal as of right. . . ." (Emphasis supplied)
The General Assembly did respond on December 2, 1968 and adopted four statutes to implement Section 9 of the Constitution and, as we have observed, one of those statutes, Act No. 354, is relevant to the instant case. However, the Administrative Agency Law does not afford review of actions of governmental bodies which are not adjudications or judicial in nature. Therefore, this appeal must be dismissed. We make the following
And Now, April 13, 1971, the appeal of Manheim Township School District is hereby dismissed.
[ 1 Pa. Commw. Page 635]
Dissenting Opinion by Judge Manderino:
I dissent from the majority because it is clear that a decision by the State Board of Education is appealable to the Commonwealth Court. The majority concedes that such a decision would be appealable if the Legislature had said so. The majority errs by concluding that the legislature has not provided the necessary implementing legislation. They have done so in clear, unmistakable terms.
The Manheim Township School District is seeking review of a decision by the State Board of Education, approving the annexation of one hundred thirty-two acres of land from the school district of Manheim Township to the Lancaster City School District.
Article Five, Section Nine of the new State Constitution provides for a "right of appeal . . . from an administrative agency to a court of record or to an appellate court, the selection of such court to be prescribed by law." This provision clearly gives a right to appeal from the decision of an administrative agency, recognizing the great effect which administrative agencies have had on many personal and property rights. The purpose of Article Five, Section Nine of the Constitution was to insure the protection of these rights by guaranteeing the right of appeal. Administrative agencies have had too vital an impact on the administration of justice to be exempt from judicial review. The new Constitution was obviously meant to bring the decision-making function of administrative agencies within a broader judicial framework -- a framework including appellate review which did not always exist before the new Constitution.
I agree with the majority that Article Five, Section Nine of the Constitution does not confer a right of appeal (at least in the Commonwealth Court) in the absence of any implementing legislation. But even the majority concludes that the Manheim Township School
[ 1 Pa. Commw. Page 636]
District would have a right to appeal if there had been implementation of the new Constitutional provision by the legislature. Such implementing legislation does exist.
The Appellate Court Jurisdiction Act of 1970 (Act No. 223 of July 31, 1970) has provided such implementation. Section 403 of that Act provides as follows: "The Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of administrative agencies in any of the following cases: (1) All appeals from administrative agencies of the Commonwealth under the Administrative Agency Law or otherwise . . . and from any department, departmental administrative board or commission, independent board or commission or other agency or administrative officer of this Commonwealth having statewide jurisdiction. . . ." (Emphasis added). In Section 102 (6) of the same Act, an order is defined as a "judgment, decision, decree, sentence and adjudication."
As in Article Five, Section Nine of the Constitution the language of the above sections is unlimited in both letter and spirit.
The majority's argument that under prior case law only adjudications are appealable, is superseded by the Appellate Court Jurisdiction Act's implementation of the Constitutional guarantee to a right of appeal from all orders of any administrative agency, department, departmental administrative board, departmental administrative commission, independent board, independent commission, agency, or administrative officer.
No longer are appeals limited merely to adjudications or decisions which are judicial in nature. No longer is the so-called non-judicial agency free from appellate review. Pennsylvania has moved ahead in the ways of justice.
The Manheim Township School District has exercised the right of appeal guaranteed by the new Constitution
[ 1 Pa. Commw. Page 637]
and has properly filed its appeal in the Commonwealth Court. The appeal must be heard.
Dissenting Opinion by Judge Crumlish, Jr.:
The issue before us is whether Article V, Section 9 of the Pennsylvania Constitution which became effective January 1, 1969, provides a right of appeal from the decision of the State Board of Education in approving a change of boundary lines of a school district for purposes of annexing area from another district. Article V, Section 9 reads as follows: "There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as prescribed by law ; and there shall be such other rights of appeal as may be provided by law." (Emphasis added.) Prior to the adoption of this Section, the courts of this Commonwealth consistently held that such decisions by the Board were not adjudicatory under the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 17 P.S. § 1710.1 et seq., and were therefore final upon determination by the Board. State Board of Education v. South Middletown School District, 430 Pa. 457, 243 A.2d 350 (1968); Esbenshade v. Department of Public Instruction, 181 Pa. Superior Ct. 232, 124 A.2d 478, aff'd. 387 Pa. 281, 127 A.2d 678 (1956).
In its disposition of the present case, the majority has held that Section 9 provides a right to appeal only after the Legislature has prescribed its selection of the court. None of the four acts by which the General Assembly has implemented Section 9 provides for an appeal from actions by the Council of Basic Education. See Smethport Area School District v. Bowers, 440 Pa. 310, 269 A.2d 712 (1970). And so summarily, the majority has concluded that since Article V, Section 9
[ 1 Pa. Commw. Page 638]
does not by itself give a right of appeal, no appeal exists in the matter at hand. I cannot agree.
Neither can I agree with the majority's buttress holding that this case is controlled by South Middletown, supra, and Esbenshade, supra, that the decisions of the Council are not adjudicatory or judicial in nature and, therefore, not subject to review by the courts.
As Judge Manderino points out at the beginning of his Dissenting Opinion, Article V, Section 9, clearly provides the right of appeal from administrative agencies to either a court of record or to an appellate court. This right is modified by a clause providing that the Legislature has the power of "selection of such court". This does not mean that the Legislature may eliminate the right of appeal from administrative agencies by failing to provide its selection of court.*fn1 Would the majority be so instantly decisive in this appeal if the Legislature had failed to provide for the appeals from other agencies as such as from the Board of Finance and Revenue, the Workmen's Compensation Board, Civil Service Commission or any of the other numerous agencies which have by tradition given appellate review? Would the majority say that the Legislature can decimate the right to appeal from these agencies by the repeal of their forum? Clearly, it seems to me, the intent of Article V, Section 9 is to guarantee judicial review of administrative agencies. Smethport Area School District, supra. However, this Court today would guarantee the Legislature's right to withhold appellate review. With this I cannot agree. To me logic and reason dictate that these appeals are of right.
[ 1 Pa. Commw. Page 639]
In cornerstoning its decision, the majority relies on Smethport Area School District, supra, and Conestoga National Bank v. Patterson, 442 Pa. 289, A.2d (1971). In Smethport, Justice Pomeroy said that Article V, Section 9, "was not, of course, self-executing, . . ." and noted that there were four statutes designed to implement it. In Conestoga Bank, Justice Roberts wrote that "this constitutional provision as implemented . . . mandates . . . an appeal as of right. . .". The majority tortures this language and construes that the Supreme Court would stress the necessity of implementing legislation to demand it as a prerequisite for a right to appeal. This, in my judgment, overlooks the break in the bridge of reasoning. The fact is that this issue has never been before the Supreme Court. In Smethport and Conestoga Bank, the issue before the Court involved only the question of the appropriate forum appointed by the Legislature. Can we, and I say we should not, grasp ambiguous*fn2 and general language of our Supreme Court to steer ourselves on a course which leads us to an impractical and unreasonable dock, particularly when the effect of such an interpretation would be to void the obvious purpose of the constitutional enactment?
[ 1 Pa. Commw. Page 640]
But, it is not enough to merely decide that Article V, Section 9 provides appeals of right from administrative agencies. In expressing my opinion, I do not forget that we must determine whether this action involves such an appeal. The majority has mustered a formidable body of irrefutable case law in holding that the Council of Basic Education is not an administrative body from which appeals should lie. South Middletown Page 640} School District, supra; Esbenshade, supra. However, the reasoning which found these decisions has been made inapplicable by Article V, Section 9.
Both South Middletown and Esbenshade rely on legislative determination of "agency adjudications." In both cases, the Supreme Court held that the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, § 1 et seq., as amended, 71 P.S. § 1710.1 et seq. limits appeals from administrative agencies to adjudications, and that the Legislature had determined that the decision to approve or disapprove annexation of a part of a school district was administrative not adjudicative. See Esbenshade, 181 Pa. Superior Ct. at 239-41. As stated by Judge Bowman, now our President Judge, when sitting on the Dauphin County Court of Common Pleas in the South Middletown case: "It was under . . . statutory provisions that the Susquehanna Township School District [62 Dauph. 125 (1951)] and the Esbenshade cases were decided and held that the action of the Council (Board) in this area was non-judicial and from which action no appeal would lie to this Court." 86 Dauph. 361, 365 (1966). (Emphasis added.)
I do not dispute the conclusion of the majority that the action by the Council was nonadjudicatory. Since Newport Township School District v. State Tax Equalization Board, 366 Pa. 603, 79 A.2d 641 (1950), the Supreme Court has held that actions such as this are non-judicial without relying upon any legislative determination of that issue. However, Article V, Section 9 did not give the Legislature the power to limit appeals from administrative agencies to quasi-judicial matters. We shall not rely on the restrictions of appeal which are set forth in the Administrative Agency Law. It is for us to make that determination. Esbenshade and South Middletown no longer control this issue.
[ 1 Pa. Commw. Page 641]
The distinction between adjudicatory or judicial decisions by agencies and their administrative decisions was clearly set forth in Newport which framed the portrait of all later decisions in this legal museum. Mr. Justice Ladner, in answering the question of whether purely administrative decisions are reviewable stated: "No statute since 1874 has enlarged our certiorari powers so far as administrative or non-judicial tribunals are concerned. . .". (Emphasis original) 366 Pa. at 608. Article V, Section 9 has finally enlarged the powers of the courts of Pennsylvania in this regard. As stated by Justice Pomeroy in Smethport, supra : This introduced a new concept to Pennsylvania jurisprudence, one which recognized the important position of administrative agencies in modern government, the quasi-judicial functions that many of them perform and the fact that both property rights and personal rights can be seriously affected by their decisions. (Emphasis added) 440 Pa. at 314. Our experience dictates and I firmly believe that administrative decisions by agencies have the same incisive effects on personal and property rights as adjudicatory decisions. I believe that Article V, Section 9 was not intended to limit its reference to appeals from " administrative " agencies to "adjudications".*fn3 I judge that Article V, Section 9 intended to provide a right of appeal from any and all administrative decisions.
Insomuch as this Court has been presented with an appeal of right from the decision of an administrative agency which has not been directed to another "court of record" or "appellate court", it should have determined the merits of that appeal. Section 403 of the Appellate Court Jurisdiction Act of 1970, July 31, 1970,
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Act No. 223, gives this Court jurisdiction in "all appeals from administrative agencies of the Commonwealth under the Administrative Agency Law or otherwise. . .". While this may not explicitly provide for jurisdiction over this case in the Commonwealth Court,*fn4 it certainly provides us with greater familiarity with the problems and procedures inherent therein than the other appellate courts. In the absence of a legislative determination otherwise, I would accept jurisdiction in this case, and in doing so, protect appellant's constitutional right of review.