Argued, May 13, 2014
Appealed from No. 2013-07. Charter School Appeal Board.
Brian H. Leinhauser, Malvern, for petitioner.
Donald F. Spry, II, Bethlehem, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE COHN JUBELIRER. DISSENTING OPINIONBY PRESIDENT JUDGE PELLEGRINI.
COHN JUBELIRER, JUDGE
Lehigh Valley Dual Language Charter School (Charter School) petitions for review of the October 15, 2013 Order of the State Charter School Appeal Board (CAB) that granted the Motion to Quash (Motion) of the Bethlehem Area School District (District) and dismissed Charter School's appeal from the District's denial of Charter School's request to amend its charter (Charter) to expand its existing operations to a second location. The CAB concluded that Charter School's appeal should be dismissed because, pursuant to the Charter School Law (Law), Charter School is not permitted to operate two locations under the same Charter. However, we agree with Charter School that the CAB's conclusion that Charter School could not open a second location by amending its Charter is not in accordance with this Court's decisions in Montessori Regional Charter School v. Millcreek Township School District, 55 A.3d 196 (Pa. Cmwlth. 2012) (en banc) and
Northside Urban Pathways Charter School v. State Charter School Appeal Board (Pittsburgh Public School District), 56 A.3d 80 (Pa. Cmwlth. 2012) (en banc), and, therefore, we reverse.
The facts in this matter are not in dispute. Charter School currently operates a kindergarten through seventh grade school at a single location in Bethlehem, Pennsylvania pursuant to its Charter, which was issued by the District. In the Spring of 2013, Charter School and the District began discussing the renewal of the Charter. Both Charter School and the District agree that, during this period, there were discussions in which Charter School expressed its desire to open a second location for its fifth through seventh grade students. Charter School indicated that it wanted to add the second location because its present location lacked the " space to maintain [its] current student population" and to provide those " students a true middle school experience that is not possible in the elementary building." (An Administrative Evaluation and Recommendation of the Charter School Renewal Application of the Lehigh Valley Dual Language Charter School at 5, R.R. at 5a.) On March 18, 2013, the District's School Board (School Board) renewed the Charter for five years; there was nothing in the renewal addressing a second location. Thereafter, on or about June 5, 2013, Charter School officially advised the District and the School Board that it intended to expand into the second location and sought to amend the Charter accordingly. On June 24, 2013, Charter School administrators met with the District's superintendent and assistant superintendent regarding the requested second location. Charter School entered into a lease agreement for its second location on July 1, 2013.
Charter School presented its proposed expansion to the School Board's Curriculum Committee on July 22, 2013 and, by letter dated August 9, 2013, Charter School advised the District of its position that there was nothing in the Law that prohibited it from operating at two locations. (Letter from Counsel for Charter School to District's Counsel (August 9, 2013), R.R. at 15a.) The School Board held a meeting on August 12, 2013 and voted to deny the amendment to the Charter
because: (1) Section 1722-A of the Law, 24 P.S. § 17-1722-A, prohibits a charter school from operating out of more than one location; (2) the Charter prohibits Charter School from operating its school at a facility other than that listed in the Charter absent written consent from the District; and (3) of concerns regarding Charter School's educational achievement.
II. Appeal to the CAB
Charter School appealed the District's denial of its amendment to the CAB, asserting that the Law does not prohibit it from operating in two locations, the District was estopped from raising any issues regarding educational concerns because such concerns were not raised during the Charter renewal process, and any educational concerns are irrelevant to whether Charter School can amend its Charter to open a second location. (Charter School's Appeal, R.R. at 16a-21a.) The District filed its Motion, arguing that: (1) because its denial of the amendment was essentially the denial of a new charter for the proposed second location, Charter School had to obtain a certain number of signatures before appealing the denial under the Law and did not;  and (2) the Law prohibits, with one exception not applicable here, charter schools from operating out of two locations under the same charter. (District's Motion, R.R. at 22a; District's Brief in Support of Motion to Quash Appeal (District's Brief in Support), R.R. at 23a-26a.)
After both parties filed briefs, the CAB held a hearing during which it heard argument on the Motion. In their briefs and during the argument before the CAB, Charter School and District argued whether the Law, and this Court's decision in Montessori, permitted Charter School to operate a second campus by amending its original Charter. (Hr'g Tr. at 7-12, R.R. at 40a-45a; District's Brief in Support, R.R. at 23a-26a; Charter School's Brief in Opposition to District's Motion to Quash (Charter School's Brief in Opposition), R.R. at 28a-32a.) Charter School mentioned, in its argument to the CAB, that the question of whether the Law, Montessori, and/or Northside Urban Pathways had decided whether a charter school can, by amendment to its charter, obtain permission to operate a second location, went to the merits and " would be addressed at this body at a future date" if the appeal was permitted to go forward. (Hr'g Tr. at 12, R.R. at 45a.)
At the end of the hearing, the CAB voted to grant the Motion and dismiss Charter School's appeal on the grounds that " [t]here is nothing in the [Law] that supports the position that a charter school can open a second location via an amendment to its original charter." (Hr'g Tr. at 13, R.R. at 46a.) The CAB relied upon the concurring and dissenting opinion in Montessori to support its holding that the Law did not permit Charter School to open a second location by amending its Charter. (CAB Decision at 3 n.2 (citing Montessori, 55 A.3d at 203-06 (Pellegrini, P.J., concurring and dissenting).) The CAB further held that it was not bound by the majority in ...