*1 funding, judgments able due to the limited factors, DISTRICT,

CLS consider various includ- HARRISBURG SCHOOL ing “the likelihood of success on the mer- Harrisburg Board, Joseph C. its, clients, prior experience with the same Brown, Cammack, M. Kenneth Linda credibility assessment of client’s and Leister, Hill, R.D. Judith C. Wanda responsibility to adhere to ethical consider- Williams, individually, parent and as Id. ations.” guardian Rauwshan and natural Williams, Davis, individu Ricardo A. matter, pre In this the evidence ally parent and as and natural Guard hearing sented at the showed that Adams Stephenson ian and Tiffa of Jeremiah already provided hearings had been Chambers, Ford, ny Davis, Joy Clarice appeals 1986 on his unsuccessful from the individually parent natural and as employment. termination of his Adams guardian Wilson, of Samantha Grace present any did not relevant evidence to Bryant, Cobb-Wingfield, indi Glenise support request his hearing for another vidually, parent and as and natural years made almost fourteen after his un guardian Wingfield challenges successful to the termination.3 Johnathan After the investigation extensive of Adams’ Wingfield, Asia Citizens Con claim, professional judg CLS made the First, By Dwayne cerned for Children request hearing ment that his for another Carter, and Dale Ad Blount Trustees Systems before the Merit Protection Litem, Petitioners, Board did not any legal have basis. v. Where, here, a lawyer knows that his or merit, her chent’s case legal lacks HICKOK, Secretary Eugene of Edu W. lawyer not only justified refusing cation, Pennsylva represent the client but also mandated to nia, Reed, Stephen R. of Har Department do so. Peace v. Public I, risburg, Doe Jane/John Jane/John 300, Welfare, 98 Pa.Cmwlth. 501 A.2d 1164 II, Doe Doe Jane/John Jane/John (1985). IV, V, Doe Doe Potential Jane/John Accordingly, the order the Bureau is of the Board of Members Control affirmed. District, Re spondents. ORDER Pennsylvania. Commonwealth Court NOW, day May, AND this 21st Department the order of the of Public April 2001. Argued Welfare, Hearings Appeals Bureau of above-captioned matter is affirmed. Decided June brief, necessary making presented Adams in 3. Without further discussion in his Moreover, petition dispute findings. Adams states in the for review does not Adams hearing provide a fair officer did not him presented by at the the relevant evidence CLS hearing hearing complete- because the officer hearing hearing, amply supports testimony ly ignored his and the documents uphold CLS’ denial of his decision to officer’s However, presented by hearing him. offi- application. accept required the evidence cer was not *2 J., Kelley, part, concurred dissent- part, opinion

ed in and filed in which

Smith, J., joined in part.

Leadbetter, J., dissented and filed

opinion. DOYLE, Judge, President

Before SMITH, McGINLEY, COLINS, PELLEGRINI, KELLEY, and LEADBETTER, Judges. *3 PELLEGRINI, Judge. objec- are

Before this Court by filed of a demurrer in the nature tions ac- above-captioned in respondents Commonwealth) in (collectively, tion in the petition for review response to declar- equity complaint of a nature by petitioners judgment filed atory (collectively, action captioned the above District) challeng- Harrisburg of 2000 constitutionality of Act 91 ing the (the 91), an amendment Amendment/Act Act, Act No. Empowerment Education 2000-16(EEA), §§ 17-1701-B —17- P.S. 1716-B.

A. 10, 2000, May on EEA was enacted Secretary of Education and authorized the in a of a school district place the control the school district where Board Control Pennsylvania System history of low had (PSSA) scores. test of State Assessment history that had a Those school districts placed on an were low test scores Placement Empowerment List. Education process that re- triggered on the List Em- to form an the school district quired develop an that would powerment Team approved by the Improvement Plan. Once Education, Improvement Secretary of affect- implemented by the Plan had to be Katzman, Harrisburg, pe- for M. Ronald Section 1703-B ed school board. titioners. 1949, Act of March Code amended, § 24 P.S. 17- P.L. respon- Doyle, Harrisburg, for Daniel J. did school district If the affected 1703-B. dent, Secretary of Education. plan in the established goals not meet the pursuant years, three respon- within Harrisburg, P. Prugar, Todd 17-1705-B, 1705-B, the school 24 P.S. dents, Harrisburg, Mayor Jane/John Em- an “Education was declared district Doe, et al. powerment Plan, District.” ing Improvement The Board of Con- and while the trol all assumed and duties con- empowerment teams other affected ferred law on the Board of School school districts elected chairperson, their exception Directors with the appointed the team to be 1706-B, levy taxes. Section the Reed Amendment was to be under § 17-1706-B. When an affected school chaired the Mayor designee. or his district had met goals Improve- response, School Dis- ment Plan longer history and no had a alia, complaint trict filed a alleging, inter performance, low test control was restored that the Reed Amendment was unconstitu- to the Board of School Directors. Section 1710-B, tional as legislation and violated 17-1710-B. *4 protection equal rights because it treated process While this was the established that school district different from any oth- by which the General Assembly would er school district in the treat school with historically districts low placing it under the control of a Board of scores, test Harrisburg School District Control that was Mayor controlled differently was treated under the now re- rather than the affected school pealed EEA, district. It Section 1707-B of the (commonly 17-1707-B also filed a motion preliminary referred to as the for a in- “Reed Amendment” after the current Har- junction on it dispa- based what considered Reed). risburg Mayor Stephen Section rate treatment under the Reed Amend- 1707-B defined “certain school districts” 30, 2000, ment. By order dated June we as a “school district of the second class granted preliminary injunction enjoining history with a performance low test the Reed Amendment from taking effect which is city coterminous pending further order of this Court. On permanent third class which contains the appeal order, from that Supreme i.e., government,” seat of the Harrisburg affirmed, agreeing Court the Reed provision, District. Under that the Amendment spe- was unconstitutional as Secretary was directed to waive the Har- legislation. cial Harrisburg School Dis- risburg School District from inclusion on II), trict v. Hickok (Harrisburg 563 Pa. Empowerment the Education List remov- (2000). 761 A.2d peti- As to the ing from that opportuni- school district the itself, tion we dismissed the Common- ty implement to Improvement an Plan but objections wealth’s immediately certify it as an Education Reed proper, concluding Amendment was Empowerment triggering ap- District that the Reed Amendment violated Article pointment aof Board of Control. The III, Section 32 of the Consti- Board of Control would not be a three- special tution as legislation. Before the appointed by member board Secretary resolved, finally likely by case was most but instead the who Harrisburg judgment on pleadings summary or appoint was to a five-member board that judgment, we dismissed the pleasure. served at his Mayor, The rather complaint School District’s as moot be- district, than the affected school also was Assembly, cause the General in direct re- appoint Empowerment an Education decision, sponse Supreme Court’s Team develop Improvement an Plan for enacted Act 91 to language amend the Department transmission to the of Edu- the Reed Amendment which led to the Department cation. required was not petition appoint advisory filing pre- of this and the instant academic team to Empowerment develop- liminary objections. assist the Team in Assembly act- the General contending that

B. enacting the unconstitutionally in ed pro- attempt violating the In an to avoid Specifically, asserted Amendment.2 special legislation, against hibition five counts: petition following the “class” of school Amendment redefined (cid:127) III, of Article I—Violation Count It subject mayoral districts control. Con- 32 of subject provided that a school district now creates a The Amendment stitution. of con- appointment mayoral of a board special districts for sub-class of school population in excess of trol had to have treatment, in vi- including Harrisburg, 45,000: olation of Article District of the Second Class “[A] Assembly from prohibits the General history extraordinarily which has a regulating law passing local performance, low test which is cotermi districts. City nous with a of the Third Class (cid:127) Amend- II —Violation of XIV Count opted “Optional under the Third has Constitu- ment to the United States City Class Charter Law” 53 Pa.C.S. violates the tion. The Amendment Subpt. governed by Pt. III E to be *5 Equal Protection Clause of the Four- mayor-council form of Amendment because it treats population which has a excess of for teenth (45,000).” extraordinarily of low ty-five thousand the sub-class differently performing school districts 91, amending Section 9 of Act Section similarly from all other situated school 1707-B of the of Public School Code districts. 17-1707-B. The Amendment (cid:127) IX, III —Violation of Article Count provided Mayor also that control Pennsylvania of the Con- Section 3 only could be exercised where there was a stitution. The Amendment unconsti- history “extraordinarily perfor- of low test just changes the form of Harris- tutionally mance” rather than low scores.1 test By incorporating burg’s government. Sections 694 and 695 Code, 6-693, §§ 6- (cid:127) P.S. III, of Article Count IV —Violation 6-695, apply 694 and Boards Fiscal Pennsylvania 31 of the Con- Section Control, gave the Amendment further power to the Giving stitution. appointed by the Board of Control III, Article Board of Control violates power compel the School prohibits the General Section 31 which Board to taxes in certain circum- raise any spe- delegating by seeking stances an order from the court levy tax- cial commission the pleas of common for it to do so. The Board of Control is a es. gives commission and the Amendment Harrisburg The School District has filed power the Con- taxing the Board the petition for review to have the Amend- forbids. ment to Act 16 declared unconstitutional stitution Harrisburg request- 2. School District also under Act 16 low test scores were While injunctive or more of students who preliminary defined ed relief but order 50% 15, 2000, below basic level scored in bottom 25% we dated December of this Court performance on the PSSA test in math and injunction finding preliminary denied the 17-1702-B, reading, under the see Harrisburg had failed to School District Amendment, extraordinarily low test scores cjear grant right necessary to to relief show having district a com- are defined as a school injunction, preliminary average bined or more of students 60% group below. score in the bottom 25% (cid:127) VI, Article er the law under consideration is clear and Count V—Violation Pennsylvania Con- from doubt. free

stitution. The Amendment transfers powers of the Board to the II. Control, thereby removing Board I COUNT Board members from office the School VI, § of Article 7 of contravention SPECIAL LEGISLATION Constitution. contends that The Commonwealth response petition In to the for re Amendment is in accord with Article view, prelimi has filed Commonwealth Constitu- objections that each of nary contending tion because the class of school districts counts fails to set forth a constitu those one, that it creates is not a closed class of tional violation and and the class bears a reasonable relation- complaint should be dism School District’s object perfor- ship improving Regarding our standard of re issed.3 with the most mance of the school districts objections, previously, preliminary view for problems. support of this significant objections only were to be sus claim, argues that the that were clear and free tained cases is a rational one because classification plead, all from doubt from of facts on test scores of school districts based pleader prove that the was unable to facts extraordinarily history with a of low versus legally right sufficient to establish his performance. It notes that low PSSA test v. Labor Relations relief. Commonwealth adopted by urban (1996); it follows models other Board, Pa. 681 A.2d 157 *6 Bower, Chicago school districts in and Philadel- 54, v. 531 Pa. 611 A.2d 181 Bower because, III, (1992). However, phia, and under Article Sec- AFL- Pennsylvania in Commonwealth, 108, Pennsylvania 145 of the Pa. 757 tion Constitution v. 563 CIO (Education (2000), Clause), ultimately education is appears that standard A.2d 917 responsibility, a the General Assem- changed have been so that it is now wheth- state argues specifically Assembly not that the General shall 3. The Commonwealth also standing Harrisburg pass any special law. School District lacks local or counties, acknowledges bring petition but that we Regulating this the affairs of cit- argument prior ies, wards, rejected this same in our deci- boroughs, townships, or school Harrisburg peti- added.) sion on the School District’s (Emphasis districts. challenging constitutionality of Act tion previously, on our 16. As we stated based Assembly indirectly Nor the General shall Supreme decision in v. Civil Court's party any special local law the enact or Defazio Allegheny County, 562 Service Commission law; general repealing repeal but laws 431, (2000), argument A.2d 1103 Pa. 756 may passed. special acts local or Harrisburg School is meritless because the III, originally Section 32 was Article substantial, and immedi- District has a direct 1967, III, 7, adopted Section but in as Article matter, the outcome of this ate interest its sections re- III was amended and Article Therefore, and, thei’efore, standing. has numbered. objection based Commonwealth’s standing on is denied. III, Pennsylvania Section 14 of the 5.Article provides: Constitution III, 4. Article Section 32 of the provide provides: Assembly shall for the The General Constitution support thorough and of a maintenance Assembly pass no local or General shall public to serve system of education efficient any has been or special law in case which the needs of the Commonwealth. provided by general law and can be

227 adop nearly years 70 after in the For bly freely experiment entitled to is against local and proscription Harrisburg tion area of education. The laws, recognized was special population Article argues District this violates for classification ground valid III, sole designed it is Section 326 because However, municipalities. include in the classifica- only Haverford Court, uphold Supreme our Township, and, event, no rational reason tion legislation requiring as constitutional ing Assembly to create exists for the General boroughs and for all police civil service way in the did.7 classification more than townships that had first class III, Pennsylva- Article officers, recognized that police three adopted “[t]he was to end nia Constitution ability Assembly had the to create General legislature evil interference of the [of] something other based on classifications consulting the locali- local affairs without population if it did not establish than special privileges granting ties and the the law closed class. The current state of favored exemptions to individuals or now is that the General Gilligan, localities.” Commonwealth v. violating without establish classifications (1900); 504, 513, A. 126 195 Pa. 46 III, Article Section 32 Siegle, v. 346 Pa. Township Haverford that it is only so far as to see Constitution (1942). people A.2d Although between the founded on real distinctions Pennsylvania purposefully restricted on arti local classified and not Assembly’s ability special to enact General pur used for the ficial or irrelevant ones legislation, and local does Constitution prohibition. pose evading constitutional require applica- not that all legislation be Co., Storage Armstrong Freezer v. Cork. ble to the entire Article Commonwealth. (1978); A.2d 715 Harris 476 Pa. specifically grants Hickok, v. 762 A.2d burg School District counties, legislature classify (Pa.Cmwlth.2000). cities, boroughs, districts and town- ships population provides Under that standard for determin according legislation gener passed relating ing that all laws to such whether *7 al, prelimi the Commonwealth’s general legislation. grant classes shall be deemed count, Where, however, the class of nary objection a to this “the class to which creat extraordinary failing school districts unnecessarily statute is made is restricted closed, selected, must not be improperly spe- by still law is ed the Amendment closed, if be created based on City Philadelphia, cial.” v. and not must Chalmers of (1915). 251, 256, 427, opposed pertinent distinctions as Pa. 95 A. 429 real 250 (1961), explained Legislation 336 what consti- 6. enacted the General Assem A.2d special law: tuted a strong presumption bly carries a of constitu challenging tionality, party and the the consti general opposite a special law is the of [A] tutionality heavy a burden of statute bears through- special not uniform law. A law is clearly, demonstrating that the is of statute gener- applied A state or to a class. out the plainly palpably and unconstitutional. Com Legisla- known that the al law is. It is well Burnsworth, Pa. 669 v. 543 monwealth A cities and counties. ture has classified (1995). A.2d 883 dealing with all cities or all counties law law, special a not a but the same class is law, Appeal of Torbik, application. Supreme Court in uniform in its general Our 230, 241, (1997), county a dealing but one 696 A.2d But a law with Pa. ten, consisting be local or quoting v. Harness Rac would from Heuchert State class Commission, 440, 446-47, special. ing 403 Pa. city particular artificial or irrelevant ones. The dis- that itself is a subclass of a municipality tinctions used in home rule that General is further nar- population rowed a creating a class classification that extraordinary failing population itself is a subclass of justifies classifica- school districts that the distinction tion used to determine city classes of indi- jus- failing other school districts and object that legislation cates was placement tifies immediate of the school down the winnow number of school dis- Control, district under a Board of giving apply very, tricts so that would to a ability the Board of Control the tax seek that, very, very small number. While having increases and the Mayor rather itself, legislation and of does not make the Secretary appoint than the the “at will” prohi- violative Article Section 32’s Board, are: against legislation, bition the ab- (cid:127) the School District involved a must be any apparent “rhyme sence of or reason” Class; District of the Second used that they the factors indicates (cid:127) municipality involved a third is were artificial and irrelevant to remedying city opted class that has under the the situation in districts with “extraordi- Optional City Third Class Law to narily low scores.” PSSA adopt a Mayor govern- Council form of Assuming that ment; the 10% difference low-test scores and PSSA tests are (cid:127) Optional City Third Class must if meaningful, that makes the situation so 45,000; have a population of more than grave that an immediate takeover of the (cid:127) Optional Third City Class must be necessary, school district there is no co-terminus with the Second Class apparent real educational distinction to District; and place only “extraordinarily second class (cid:127) history the School District must have failing immediately school districts” under of extraordinarily test scores. low Board Control and not all such “ex- perti- As to whether these are real and traordinarily failing school districts.” Sim- distinctions, nent we must look to see if ilarly, stage at this proceeding, they justify treating the school districts apparent there is no why reason as to it is fall within other similarly districts pertinent in remedying the situation to situated in the Commonwealth. immediately place under a Board of Con- respect, there must be a rational reason to only trol second districts class school immediately place those school districts Optional are with coterminous Third Class May- under Board of Control and have a Mayor-Council Home Rule Cities appoint the Board of Control rather population forms of or with a than the Secretary of Education. *8 45,000 of over when the situation would be just grave The number and oddness of the distinc- for all in all as students extraor- dinarily tions that mix and match a failing class school districts to warrant an im- particular awith subclass of a third class mediate takeover.8 Law, Optional 8. The Amendment also does not include other ter and Plans 53 Pa.C.S. Mayor-Council Optional §§ May- Home Rule Plan cit- 2901-3171. That Act contains three A, (Plans C) virtually governmental optional plans that have ies identical or-Council B and purposes, nearly City Op- and structures. For all intents identical to Third Class City Optional (Op- Mayor-Council Third Class Charter Law tional Charter Law with the Law), 15, 1957, July government adopted by tional Act Plan A and Charter P.L. form of amended, 41101-41625, process culminating presen- §§ as 53 P.S. the same with supplanted by adoption. has been the Home Rule Char- tation to the electorate for its For

229 compare school rational to whether it is the Board going appoint who is to As to 4 mil- issues, near Control, populations have may be districts that absent other million, to a school municipali- respectively, 2 a whose and rational to have lion 45,000, if dis- population with a school a ty is coterminous both with district justifies a appoint program” the Board of Control “pilot trict a creation of in- control and continuing applied ensure local be class, could any regulation Board of support by just for the creased local district city or school any specific Control; why explain not but that does Arti- making “pilot program” it a labeling class only applies to second that concern of the 32 cle coterminous with districts that are school is The same meaningless. Constitution Mayor- Third Class Cities with Optional that the General the contention true as to that have forms of Council experiment Assembly right has some 45,000 and not all cities population of over of the Penn- Clause under the Education municipalities townships or home rule it to treat allowing sylvania Constitution any with class of that are coterminous differently. districts individual school district. pre- provisions were Both constitutional of the as a result the voters sented to argues

Regardless, of 1873 Convention Constitutional created of school districts that the subclass in the Edu- nothing means that necessarily it is the Amendment is valid because by the General gives cation Clause systems based on model educational legislation to enact dispensation Philadelphia. Ignoring and Chicago § act on behalf of who shall City Optional Char- 53 Pa.C.S. example, the Third Class gov- mayor prevented to Mayor-Council mayor with the form when the ter Law Optional act; Optional Plan A set forth compare ernment Section 414 of the city municipality governed Law, shall be § to 53 Pa.C.S. 53 P.S. 41414 Charter council, mayor, an elect- an elected an elected 3013, maintaining department of adminis- § treasurer, ed an elected controller tration; Optional compare Section 416 appointed. Com- other officers Law, § to 53 Pa.C.S. 53 P.S. Charter Law, Optional Charter pare Section 402 of the approv- budget preparation and § amended, § 41402 to 53 Pa.C.S. as 53 P.S. al; 417 and 418 of compare Sections mayor, They require §§ that the 3002. both amended, Law, 53 P.S. as Optional Charter be elected treasurer controller §§ 3015-3016. §§ to 53 Pa.C.S. 41417-41418 years. Com- to serve a term of four electors Optional B and C are also Plans Home Rule Law, pare Optional Charter Section 403 of the City Class A and the Third to Plan identical amended, § 41403 to 53 Pa.C.S. 53 P.S. exception that with the Optional Charter Law require that the council They § both 3003. head requires a director to Optional APlan to be elected shall consist of five members Optional B mere- Plan department while each Compare Section 404 of the the electors. department of administration ly requires a Law, § Optional 41404 to 53 Charter managing requires director. C and Plan They provide § that the Pa.C.S. 3004. both and C are Optional Plans B aspects, all other by the legislative power be exercised shall and the Third Optional Plan A the same as 407 of municipal Compare Section council. Though vir- Optional Charter Law. City Class Law, Optional Charter optional third class cities tually with identical They provide both 53 Pa.C.S. structure, for governmental having the same municipali- city or executive reason, and school those cities apparent no Compare by mayor. ty shall be exercised been optional plans have these districts Law, *9 Optional Charter Section imme- that allows the the class excluded from Addition- 41411 to 53 Pa.C.S. and the by a Board of Control takeover diate language they identical ally, both have almost by the of Control appointment of the Board approval of dealing with ordi- statutes in their taxing gives the Board of Control mayor and Optional the Compare Section 413 of nances. amended, Law, powers. § 41413 to Charter as an experiment even as for school districts. at first glance ap While it would Consequently, the pear Education Clause does that it is the challenge brought same III, supercede not pro- Article III, Section 32’s under Article Section under an against special hibition legislation. equal protection analysis, analysis not concerned with whether the class of apparent Because no reasons exist at III, municipality is valid under Article Sec stage this of the proceeding to establish tion 32 of the Pennsylvania Constitution that the criteria used in creating puni- but object whether it is valid to treat the tive class are real distinctions between the legislation differently from how that local governments classified and not on object is treated other classes munici artificial or irrelevant ones used for the palities or school districts. v. Defazio purpose III, of evading Article Section Civil Service Allegheny Commission of preliminary objection Commonwealth’s County, Supreme our Court addressed to Count I is overruled. equal protection similar challenge to an act treated the sheriffs of second class

III. counties differently than counties other

classes. It held that if legislation even the II COUNT general was in nature and did not violate III, Article equal protec under EQUAL PROTECTION tion, a distinction could not be made that any treated differently subclass that bore In Count II of its complaint, the class, relationship no general to the stat Harrisburg School District alleges that it ing: has equal protection been denied under the Here, Attorney argues General United States Constitution9 because Act legislative Allegheny classification of singles it out for treatment different County as a county second class and the from other school similarly districts situat unique function of the ed in sheriffs office that the Amendment treats the Har upon just rest “ground such a of differ- risburg School District differently than it justifying ence” the classification and similarly treats other situated school dis However, tricts different treatment. removing people’s duly elect legislation in question ed school goes beyond board from and unilateral ly merely singling out inserting Allegheny County his Control Board positions. into their a class to be differently For treated and in the same reasons that it essence argues effectively that no has created a claim was new brought sub-classification, under Article Section 32 of that of the sheriffs Constitution, the Pennsylvania Plainly second class counties. Com such preliminary objections monwealth relationship sub-classification bears no contends that Harrisburg School District Allegheny either to the distinction of pled has not a claim. County county aas of the second class Equal 9. The any Protection Clause of the United state shall make or enforce law which States Constitution is found at Section 1 of abridge privileges shall or immunities provides: Fourteenth Amendment and States; citizens of the United nor shall life, deprive any person liberty, State persons All born or naturalized in the Unit- States, law; property, process due subject jurisdiction ed without nor thereof, deny any person jurisdiction are citizens of the United States within its they and of the equal protection State wherein reside. No laws. *10 relationship a fair and substantial any unique function of the office of have or to object legislation. to the of county sheriff. to the appellant’s arguments We find 436, at 756 A.2d at 1106. Defazio, 562 Pa. legis- contrary unpersuasive. While that there had been It then concluded of lature can treat different classes violation because there equal protection what has differently, that is not counties rational basis for the sub-classifica- was no county particular occurred here. One and different treatment sheriffs tion differently officer not be treated counties from the sheriffs second class through- the other similar officers from from other officers of other counties or merely because out the Commonwealth second class counties. that officer is within a certain class of if the Amendment establishes Even county. The distinction created this municipalities, classification of rational legislation bears no fair or reasonable valid, Defazio, then under for it to be there object relationship legisla- to the of the would still have to be a rational reason relationship tion and bears no to the extraordinarily why the citizens some Allegheny County distinction of as a not failing given school districts are county of the second class. opportunity Improve- to create their own 436-437,

Defazio, 562 Pa. at A.2d at ment Plan and school board members of those districts are divested of their school Kline,

Quoting v. Curtis 542 Pa. 666 duties while other school boards of ex- (1995), Supreme A.2d 267-268 our not. traordinary failing school districts are explain Court then went on to the nature at apparent Because no reason exists this protection equal analysis: of an justify stage proceeding treating extraordinarily failing dis- certain princi- The essence of the constitutional of other differently tricts from members ple equal protection under the law is situated, similarly school districts persons like in like circumstances objection However, preliminary will Commonwealth’s similarly. be treated II is overruled. require persons not Count does that all under enjoy protec- all circumstances identical

tion right equal under the law. The IV.

protection under the law does not abso- III COUNT

lutely prohibit the from Commonwealth classifying purpose for the individuals RULE HOME treatment, receiving different and does contends require equal people not treatment of The School District third prohibition by empowering of a having different needs. The against people differently city appoint un- class Board Control treating Team, the Amend- preclude Empowerment and an der the law does not the Com- IX, legislative ment violates Article resorting monwealth by changing the classifications, clas- Constitution provided those Mayor-Council form of are reasonable rather than sifications Optional Third adopted pursuant rela- arbitrary and bear a reasonable Law, object legislation. City Charter tionship to the Class words, of the electors of approval a classification must without other upon Harrisburg. of difference ground rest some objections contends justifies the classification and *11 232 adopt optional plan, an a Assembly impose powers can on ment.”11 To

General carry local official to out certain state- city third-class elects a charter commission petitioners related actions and have not set a recommendation as to what to make forth a cause of action in this count. The particular form of that third government then is whether question to be answered city adopt. class If the charter should power give the Commonwealth has commission makes a recommendation that city powers of a third class not set optional plan adopted, is to be Optional City forth in the Third Class recommendation must be submitted to the (Charter Law) adopted by Charter Law adoption. adopted, If the inter- voters for issue, city. In it determining this nal are the form governed affairs then history necessary to review the of home government adopted that is as set forth Pennsylvania. rule in the Charter Law. Pennsylvania initially adopted When Partly passage because gave home rule in the General Charter Law and the desire of other Assembly determining sole discretion in municipalities and counties for classes grant whether to even home rule and to rule, hotly home home rule debat- which cities. The 1922Amendment to Art. became XV, 1874 Section Constitution of ed within Commission Woodside provided: Commission, and the 1964 both Scranton particular of any

Cities or cities class appointed study the need for revision of may given right be Constitution. From adopt their local charters and to exercise these Commissions came the call for the powers and authorities of local self- which, 1968 Constitutional Convention however, subject, governments, to such among things, study other was to restrictions, regulations limitations and Pennsylvania’s govern- structure of local imposed by legislature. time, During ments. factors that century In the half the 1922 previously militating against were home effect, only City Amendment was example, changed. rule had For even rule Philadelphia granted was home though there still was a reluctance Assembly municipality where a General rule, grant home General granted was local self under set forth in the Mu- governments forms of municipality charter that the drafted. nicipal Codes were insufficient address mu- though give still reluctant to all problems changes popu- of cities such as rule, nicipalities home the General Assem- lation, growth, urbanization and host a form of home rule for third bly enacted changes.12 social and economic right them “the giving class cities problems, the 1968 To address these adopt plans of power to one of several recommended Constitutional Convention optional and to exercise the charters10 IX, authority adopted local and the voters Article govern- self provides optional the Reference Manuals 10. The Charter Law for two Sources include Mayor-Council government: a Plan prepared forms of Conven- for the 1968 Constitutional A, French, §§ a Council 53 P.S. 41401-41421 and Gary See also E. Home Rule tion. Manager government, form of (1977). Pennsylvania, 81 Dick. L.Rev. §§ 41501-41522. Statutory Notes to Sec- 11. See Historical Law, 53 P.S. 41101. tion 101 of Charter *12 optional forms of provide Assembly shall which Constitution An municipalities. for all government

provides: be shall government of optional form right have the and Municipalities shall initiative, by the electors presented to adopt home rule to frame and power municipali- body of the by governing the or re- Adoption, amendment charters. Adop- Assembly. by the General by ty shall be or a home rule charter peal of optional form Assembly repeal of an tion or referendum. General by a referendum.13 procedure by the shall be provide government shall may be framed and home rule charter Constitution, the Under this section pre- repeal amendment or adoption, its required pro- to Assembly was the General If the General sented to the electors. power the to given and cities were vide Assembly provide, not so a home does to all mu- optional plans applicable adopt framing procedure rule charter or a then, In effect the Charter nicipalities. may charter presenting and a home rule approved optional Law became one by initiative presented to the electors by the Constitution.14 plans required munici- body of the by governing the A has a home pality. municipality which case, City In the this any may power rule charter exercise charter home rule adopted optional an by function not denied this perform any government. Mayor-Council form Constitution, by its home rule charter or A, 53 See Plan P.S. Mayor-Council Assembly any by the General at time. the Char §§ 41401-41421. Section 303 of Law, establishing § the ter 53 P.S. Amendment, the 1922 the 1968 Unlike cities, plans for third class optional charter home rule to guaranteed Amendment power city third class the gives optional municipality “power and the and removed its internal af “organize regulate and to authority self-government” of local lan- alter, fairs, establish, abolish 1922 Amendment. and to guage contained the offices, and to employments positions Convention also recom- The Constitutional IX, functions, duties powers as Article adopted mended what was define the term, the com Section 3 of Constitution tenure and thereof and fix their plans rule. regarding optional for home Law Nowhere the Charter pensation.” provides: section plan That the Common optional give does authority to power delegate to wealth Municipalities right shall have the appoint to a Board mayor power power adopt optional govern- forms of By giving to provided by ment as law. The General Control.15 terms, defining Assembly did those 13. To ensure that the General Law, rule, provides that: pro- Charter not thwart home the Constitution Assembly did not vided that if General charter and mayor enforce the shall [t]he of home rule for all local authorize form city general laws and all ordinances of governments, then the local shall, annually, re- applicable thereto. He have. decide the that it would could public on the and the port to the council passage the Home Rule and This led to the year and on the condi- previous work of Optional Act. Plans govern- city requirements of the tion and time, shall, make from time to ment and supra. 14. See ftnt. for action such recommendations public inter- deem in the council as he depart- Law, supervise all of He shall est. the Charter 15. Section 411 of city government, and shall power ments of provides "the executive annual require department to make an mayor.” each city shall be exercised Control, appoint under Board of the Amendment does not raise taxes always pursuant because it is done to a Assembly attempted give General pro- court order. Article mayors optional plan of certain third class part: vides relevant something optional cities that is not in the plan endorsed the citizens when it The General shall not dele- commission, IX, adopted optional plan. gate any special private Article *13 association, corporation any power to the Section of Constitution make, supervise or interfere with only gives Assembly to the General the municipal improvement, proper- money, power provide optional to for home rule effects, ty or whether held trust or plans governments adopt that local can otherwise, levy perform or to taxes or through a vote of its Ignoring electors. any municipal whatsoever. change whether the form would have to function added.) (Emphasis voters,16 be submitted to the if the General Assembly change optional wants to argues It that the Board of Control is give Mayor form of to special Act 91 which commission and that powers, it change council certain must 1706-B(a), § 17- amended Section 24 P.S. optional governs form so that it all munici- 1706-B(a), gives also the Board of Control palities optional that have chosen that and duties conferred law on plan. Board of Control under Sections Code, 694 and 696 of the Public School Harrisburg Because the District School 6-693, 6-695, §§ 6-694 and includ- relief, has made out a claim for the Com- ing power for- taxing Constitution objection monwealth’s to provides bids. Section 693 that the Board Count III is overruled. may require of Control the elected school taxes; pro- board to increase Section 694 V. levy may vides that the Board of Control beyond an additional tax above and COUNT IV Code; level authorized the School DELEGATION OF THE provides Board of TAXING POWER may apply pleas to the common Control court to mandamus the elected school In petition, its School board to enact such tax or taxes or initiate power District claims that the shift in to proceedings to remove recalcitrant school Control, appointed by the Board of neglect duty pursu- board members for Mayor Harrisburg, violates Article Code, ant to Section 318 of School Section 31 of the Constitu- 3-318. prohibiting tion the General delegating any special contention, to commission support In of its the Harris- levy taxes.17 The burg Common- School District directs our attention preliminary objection wealth in addressing constitutionality its con- to a case end, levying that in tax- tends the Board of Control of a non-elected school board reports previously addressed in our and such other of its work as he 17. This issue was may deem desirable. December 2000 decision on the Harris- burg request injunctive School District’s provides changes 16. 53 Pa.C.S. 2941 relief. gov- optional plan a home rule charter or ultimately presented be ernment shall electors. delegated non-elective Phila to a v. School District es. Wilson (1937), Pa. our board. delphia, 828 195 A. 90 an uncon Supreme Court struck down as case, controlling though, Neither delegation permitted stitutional an act pow has the the Board Control because Philadelphia Board the non-elected levy that the district request school er to levy Explaining a tax. the rationale maximum set forth above the rate taxes decision, stated behind the Court Code, it the give but does not the School had delegation municipal authorities taxes. power to raise it did recognized been lawful because only the Board of Con Code allows people. control Al not remove from the levy request the School Board to trol to agencies though districts were lie Assuming that mandamus will taxes. possess govern the state and did not compel a school board to raise taxes *14 municipalities, leg attributes of the mental education, requested amount to fund the had, nonetheless, given school dis islature Board that will raise the it’s the School power levy to taxes for school tricts taxes, the Board of Because not Control. However, purposes. because a there is no delegation, there is no unlawful to board was a commission created Article and the violation of Section 31 taxes, and levy question because the act objection to preliminary Commonwealth’s rate, specify did not maximum tax is sustained. Count IV statutory provision taxing delegating the power to the non-elected school board vio VI. constitution, i.e., principles

lated the of our COUNT V legislative by chosen giving body people power tax. REMOVAL FROM OFFICE however, Commonwealth, argues The complaint, In the last count of their point that a case more on Moore v. is Harrisburg School District claims Pittsburgh, School District 338 Pa. VI, Sec Amendment violates Article (1940), taxpayers sought 13 A.2d 29 where Constitution18 tion enjoin by appointed a tax levied transfers because the Amendment had legislature school board. Because the to the Board powers of the School Board enacted a statute that fixed the maximum Control, thereby removing the School levy, rate of tax a school board could our members office contraven Board Supreme VI, § Court held that no unconstitu- tion of Article legis- delegation tional occurred when the agree We with the Com Constitution. pre lation fixed a maximum rate of tax in its monwealth’s contention set forth charged by objection board. the school appointive liminary could be that while affected, Moore, ar- are Relying on members’ the Commonwealth board restricted, still their offices. long as members retain gues that as taxation board VI, by they have been shall provides: Article by All civil elected appointed. officers their offices on All civil officers shall hold Governor, except people, the Lieutenant themselves they the condition behave Governor, Assem- members of the General office, shall be removed well while and record, shall bly judges of the courts of and in office or on conviction misbehavior by the for reasonable be removed Governor Appointed civil offi- any infamous crime. cause, hearing, cers, on due notice and full after judges other than of the courts record, of the Senate. may pleasure of address of two-thirds at the removed District are Harrisburg in- 695 of the School Code was objection into the Amendment refer- corporated preliminary overruled. provides ence and that school directors and The Com- Counts IV V are sustained. provid- resign positions cannot even their (30) thirty days has from the monwealth ing: date of this order to file an answer. of a dis-

The school directors distressed offices, except their resign trict not I, joins II Judge SMITH Counts spe- the unanimous consent of majority opinion joins and III of the board of control and shall continue cial Judge and in as to Counts IV V office, office for unless removed from dissenting concurring KELLEY’S duty ... the court of com- neglect opinion. county in which such pleas mon largest part in the area is district or the KELLEY, Judge, Concurring located, unless of such directors Dissenting. position are elected to another not com- by the I concur in the result reached school di- patible position with the respect majority with to the Common- appointed any position or are rector objections to Counts requirement that wealth’s for which there is appointee I, hold not elective II III in the said shall *15 office, However, for the remainder of their terms I petition for review. District’s operated time district is during the the majority’s resolution disagree with the by special the board of control and shall respect pre- Commonwealth’s delegated by to them perform any duties in objections to Counts IV and V liminary assumption of control of dis- it. petition the School District’s special by district the tressed school for review. in way of control shall no interfere board IV, majority the respect With to Count or reelection of regular with the election 91, provisions that the of Act which finds school directors for the district. 1706-B(a), § 24 P.S. 17- amended Section Amendment does not re- Because the 1706-B(a), provisions of do not violate the members of the school board move the III, Article Section 31 office, prelimi- the Commonwealth’s 1706-B(a) provides Constitution.1 Section

nary objection to Count V is sustained. power the part, “[e]xcept in for pertinent foregoing based on the dis- Accordingly, taxes, the of control levy to board cussion, preliminary the Commonwealth’s all and duties con exercise other I, II and III are objections to Counts school di by ferred law on the board of preliminary objections to overruled and its powers and duties con rectors and the Counts IV and V are sustained. control special on a board of by ferred law 693, and 695 the [of under sections 694 ORDER § 24 17- P.S. Code]...” Public School June, 2001, NOW, day 22nd of AND this 1706-B(a). by the objections filed the states, pertinent 693 turn. Section to of Counts part: I, petition III the for review filed II and states, III, any perform mu pertinent power levy ... taxes or to

1. Article Assembly Const. art. shall not nicipal whatever...” Pa. part, that General function “[t]he delegate any special commission ... to §

237 special control upon the board control as- confer the board special When the school power compel control of a distressed school dis- the to board of sumes taxes, trict, power hereby levy they it shall to and remove have and is directors rights, statutory all on tax rates that authorized to exercise limitations provisions, powers, privileges, prerogatives imposed. which may be Such imposed law on duties or conferred with the special the board of control vest tax, of the dis- board school directors impose or increase a discretion district, tressed and the board of school authority compel imposition power no to act III, directors shall have increase, run afoul of Article clearly approval special without the board 31. See v. School District Section Wilson of control... board of con- 225, 241-242, [T]he Philadelphia, Pa. may require trol the board (“[T]he [of (1937) purpose main A. directors]: [31], Article was to correct the Section

recognized taking economic mistake of (2) power regular, legis- from the away fiscal To increase tax levies in such body it in hands of putting lative permit- amounts times and at such as is commission, appointive organized an ted the act to this an amend- is special purposes subject .. and not ment. Here effect of people. control of 6-693. delegation by General 6-694, Finally, in the to vest school board the unlimited pertinent part: provides, expenses, increasing plus operation When the of a distressed levy amount sufficient right tax school district has been assumed expenditures incurred. to cover control, special board of the board of this, this prohibits The Constitution *16 shall, school directors of the district give must effect to the mandate of its court upon the the recommendation and with framers.”) (citing Allegheny Tranter v. control, approval special of the board of 65, Pa. A. 289 County Authority, 316 173 levy an additional tax or taxes sufficient (1934).). Ridge, v. 762 A.2d Warren Cf. liquidate dis- the indebtedness of the (Pa.Cmwlth.2000). 1126 trict. .. limi- [Notwithstanding present law, imposed by tations on tax rates V, respect majority the With to Count such limitations shall not to dis- apply the of 1706- provisions finds that Section tressed school districts. B(a), of incorporating Sections 694 and 695 Thus, Code, provisions Public do the although foregoing the the not violate VI, purport power the taxes of Article levy provisions exclude Section control, they a board also As noted special from of Constitution.2 VI, public provides, pertinent were elected officers 2. Article Section 7 in school directors adopted. In part, that civil officers hold their ... when the Constitution was "[a]ll shall system, they a neces- on condition that behave the absence the existence offices the office, framers, sarily be be in the minds it would themselves well while in and shall they express tenns on in of- held that came within removed conviction misbehavior VI, [7], any that subse- act fice or of infamous crime..Pa. article section Const. 6, conflicting provision quently passed, providing § method applies to the in- art. This removal, legally prohibited. But we elected of the board of school was stant members of must remember See, legislation the earlier e.g., re Recall that directors. Petition to Reese, 123, 1162, 114, procedure in manner of 542 665 A.2d 1166- furnished different Pa. cases, it, (1995) ("[I]t modifying acts of assem- that such 1167 must remembered 238 control,

above, 1706-B(a) perti- special board of and the mem provides Section part, “[e]xcept power for the nent of the board of school directors are bers taxes, levy the board of control exer- prohibited resigning their offices. powers cise all other and duties conferred statutory transferring Such a scheme board directors and law on the of school directors, powers of the board of school by law on and duties conferred except making body impotent to act at special board of control under sections express special direction of the board 693, 694 and 695 the Public School [of control, imposing upon the board of 17-1706-B(a). P.S. Code]..24 school directors a condition of “involun ”, an im tary clearly servitude constitutes provides, pertinent part, permissible from office”3 under “removal special board of control “[w]hen VI, provisions of Article Section 7 of control of a distressed school dis- assumes See, e.g., Constitution. trict, power hereby it shall have and is Marinelli, v. Kelly Commonwealth ex rel. rights, pow- authorized to exercise all (1938); ers, and duties im- 330 Pa. 198 A. 623 Common privileges, prerogatives Clark, posed on the Kelley or conferred law board wealth ex rel. v. 327 Pa. district, (1937); school directors of distressed ex rel. A. 634 193 McElwee, and the board of school directors shall v. Pa. 193 A. Smillie 327 approval (1937). to act without the have no 628 special board of control...” P.S. I Accordingly, majority, unlike the § 6-693. pre- would overrule the Commonwealth’s provides, pertinent part, Section II, III, I, liminary objections to IV Counts operation of a distressed “[w]hen District’s V the school district has been assumed petition for review. control, board of the board of special shall, upon school directors of the district LEADBETTER, Judge, Dissenting. approval the recommendation and with the notes, Supreme majority As the our control, levy board of recently Court has stated: liqui additional tax taxes sufficient to of the district...” date the indebtedness right equal protection under the Finally, pro 6-694. absolutely prohibit law does not *17 vides, pertinent part, “[t]he classifying from individ- Commonwealth not may directors of a distressed district purpose receiving differ- uals for of offices, resign except their with the unani treatment, not require ent and does of special mous consent of the board con people having treatment of differ- equal § 24 trol and shall...” 6-695. prohibition against ent needs. The people differently under the law treating Thus, foregoing provisions, under preclude not the Commonwealth does directors powers of the board of school resorting legislative classifica- from board have been transferred tions, control, provided classifications that those of of school directors board arbitrary reasonable rather than and authority to act as directed are only has effective, 1873, See, Shakespeare, 3. William e.g., bly passed since will still be Romeo II, ii, ("What's Juliet, in a name? that depart act sc. attempt unless an is made to from existing." [Georges provisions then Town- rose/By we call a other name which 129, 135, Directors, 286 Pa. 133 ship sweet.”). would smell as 223, added).”). (1926)] (emphasis A. municipal which relationship to the amendments of bear a reasonable legislation. time object of the from time to be made Therefore, I Assembly.” would General Comm’n, Pa. DeFazio v. Civil Service objections to preliminary also sustain (2000). 431, 1103, 1106 436, 756 A.2d respectfully dis- Accordingly, III. I Count Moreover: majority’s portion sent [Tjhe underlying purpose [Pa. of Consti- ob- overruling those decision 3, analogous tution Art. is 32] jections. federal equal protection clause in- analysis our [] constitution

terpretation of the clause should be

guided by principles apply the same interpretation equal protec- of federal

tion.

Id. at 756 A.2d 1105. at principles to case

Applying these hand, Petitioner, equal protec- no Anthony JACKSON, at I find denial of tion, no of Article and thus violation v. beyond dispute 32. It is the Gen- BOARD PENNSYLVANIA eral the Education enacted AND OF PROBATION Empowerment response Act in a sig- PAROLE, Respondent. many nificant pattern among failure public the Commonwealth’s schools. Pennsylvania. Court of EEA, challenged provision of the the Act Amendment, Briefs provides April on 2001. specialized Submitted remedy Dis- June Decided trict specifically which is tailored both problems the educational district particular

and to form City It mod- the district. programs

eled after other states results, promising

have shown and is

frankly designated pilot program. as a I represents

Because believe Act 91 legislative response

rational a serious consistency providing

erosion “a of our public

thorough system and efficient to serve the needs the Com

education *18 Ill,

monwealth,” Const., I Pa Art. preliminary objections

would sustain Further, I I II. agree

Counts that, IX, §

respondents “Pa. art. Const. terms, only requires ref its own voter govern form optional

erendum when pro adopted repealed....

ment is to a speaks only

vision thus wholesale municipal not to

change government,