Association of PA State Colleges and University Faculties v. PASSHE ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Association of Pennsylvania State :
College and University Faculties, :
Petitioner :
:
v. :
:
Pennsylvania State System of Higher :
Education, Cheyney University, :
Clarion University, Lock Haven :
University, Mansfield University, :
Millersville University and :
Slippery Rock University, : No. 575 M.D. 2017
Respondents : Argued: September 14, 2018
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge (P.)
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 12, 2018
Before this Court in its original jurisdiction are preliminary objections
filed by the Pennsylvania State System of Higher Education (State System), Cheyney
University, and five other state-owned State System Universities - Clarion University,
Lock Haven University, Mansfield University, Millersville University and Slippery
Rock University (Universities) (collectively, Respondents) to the Association of
Pennsylvania State College and University Faculties’ (Association) Petition for
Review in the Nature of an Action for Declaratory Relief (Petition).
On December 7, 2017, the Association filed the Petition, alleging therein
that Cheyney University engaged in a search for a new university president that
ultimately resulted in a presidential appointment. According to the Association, prior
to recommending the candidate to the State System’s Chancellor for submission to
the State System’s Board of Governors (Board), the Cheyney University Council of
Trustees (Council) did not consult with students, faculty and alumni, as required by
the State System of Higher Education Act1 (Act 188).
The Association specifically averred that, on or before August 23, 2017,
the Council created a presidential search committee (Committee) to find and
recommend a candidate for Cheyney University president. The Association further
alleged that the Committee met on August 29, 2017 to discuss the search process and,
on September 19, 2017, to consider the selection of a search firm to assist the
Committee. The Association asserted that, at the September 19, 2017 meeting, the
Committee chairman announced that a future meeting would be held to obtain
guidance from the Cheyney University community on favorable candidate qualities.
The Association claims that no such meeting was scheduled and, on October 16,
2017, the Council took official action by recommending a presidential candidate to
the Board and disbanding the Committee, and that no faculty consultation occurred.
Thus, the Association maintains that Cheyney University and the Council violated
Act 188.
The Association also contends that the Board violated Act 188 when, at
a November 13, 2017 meeting, it approved the Council’s recommendation made
without faculty consultation. The Association further avers that the five other
Universities are currently conducting presidential searches, and it is concerned that
the Universities will similarly fail to consult with faculty before recommending
presidential candidates. Based on these allegations, the Association asks this Court to
declare that Act 188 requires a State System university’s council of trustees to consult
with the university’s faculty before recommending a presidential candidate, and that
1
Created by Section 2002-A of the Public School Code of 1949, Act of March 10, 1949,
P.L. 30, as amended, added by Section 2 of the Act of November 12, 1982, P.L. 660, 24 P.S. §§ 20-
2001-A to 20-2017-A.
2
Cheyney University and the Board violated Act 188 by recommending and
appointing a president without prior consultation with Cheyney University’s faculty.
On January 30, 2018, Respondents filed twelve preliminary objections to
the Petition (Preliminary Objections). In Preliminary Objection I, Respondents allege
that the Petition fails to conform to Pennsylvania Rules of Civil Procedure Nos.
(Rule) 1019(a) (concisely stating claims sufficient to permit a respondent to prepare a
defense) and 1020(a) (requiring that each cause of action be stated in a separate count
containing a demand for relief). Respondents assert in Preliminary Objection II that
the Petition must be dismissed for a lack of specificity with respect to the allegations
against all Respondents. In Preliminary Objections III through VII, Respondents aver
that the Petition lacks specificity, with the identical Preliminary Objection pertaining
to each of the Universities. Similarly, in Preliminary Objections VIII through XII,
Respondents allege relative to each of the Universities that the pleadings are legally
insufficient and that the Petition fails to state a declaratory relief claim. On February
8, 2018, the Association answered Respondents’ Preliminary Objections. Thereafter,
on March 12 and April 5, 2018, the parties filed briefs supporting and opposing the
Preliminary Objections, respectively.2
The State System consists of fourteen state-owned universities which
include Cheyney University and the Universities. Section 2009-A(1) of Act 188
describes university councils of trustees’ duties and powers, which include the
2
In reviewing preliminary objections, all material facts averred in the
complaint, and all reasonable inferences that can be drawn from them,
are admitted as true. However, a court need not accept as true
conclusions of law, unwarranted inferences, argumentative
allegations, or expressions of opinion. ‘Preliminary objections should
be sustained only in cases that are clear and free from doubt.’ P[a.]
AFL-CIO v. Commonwealth, . . . 757 A.2d 917, 920 ([Pa.] 2000).
Seitel Data, Ltd. v. Ctr. Twp., 92 A.3d 851, 859 (Pa. Cmwlth. 2014) (citations omitted).
3
authority “[t]o make recommendations to the chancellor for the appointment,
retention or dismissal of the president following consultation with students, faculty
and alumni.” 24 P.S. § 20-2009-A(1) (emphasis added). Section 2005-A of Act 188
describes the Chancellor as the State System’s chief executive officer and grants him
various duties, including:
[A]ssist[ing] the [B]oard in its appointment of the
presidents for the constituent institutions by submitting to
the [B]oard the name or names of individuals
recommended by the council of trustees of the
appropriate constituent institution who shall involve
students, faculty and alumni in the interview and selection
process used to formulate their [sic] recommendation.
The chancellor shall submit to the [B]oard the
recommended salary and other proposed terms of each such
appointment. The [B]oard shall have the right to refuse the
recommendation of the local council and to request that
additional recommendations be submitted by the council.
24 P.S. § 20-2005-A(4) (bold and italic emphasis added). Pursuant to Section 2006-
A(a)(2) of Act 188, it is also the Board’s duty
[t]o appoint from the list submitted by the [C]hancellor,
pursuant to [S]ection 2005-A(4) [of Act 188], presidents of
the constituent institutions to serve at the [B]oard’s pleasure
under fixed terms or contracts of fixed duration, to fix the
salaries and other terms of appointment of each president
and prior to renewal of such term or contract consider the
results of the evaluation of each president’s service
submitted by the [C]hancellor.
24 P.S. § 20-2006-A(a)(2).
I. Preliminary Objection I: Failure to Conform to Rule of Court
In Preliminary Objection I, Respondents contend that the Petition should
be dismissed for failure to conform to the Court rules. Specifically, Respondents
assert that the Petition does not comply with Rule 1019(a) which provides: “The
4
material facts on which a cause of action or defense is based shall be stated in a
concise and summary form.” Pa.R.C.P. No. 1019(a). Further, Respondents claim
that the Petition does not conform to Rule 1020(a) which states: “The plaintiff may
state in the complaint more than one cause of action cognizable in a civil action
against the same defendant. Each cause of action and any special damage related
thereto shall be stated in a separate count containing a demand for relief.” Pa.R.C.P.
No. 1020(a). According to Respondents, “[u]nder Rule 1020(a), where the factual
background underlying each [R]espondent’s liability is different, each cause of action
against each [R]espondent must be stated in a separate count containing a demand for
relief.” Respondents’ Br. at 2. Respondents describe the Petition as follows:
The Petition includes a single count asserting different
causes of action against numerous parties for conduct
undefined as to each party named. The Petition fails to
inform each Respondent of the specific conduct that is
actionable as to each Respondent. Further, the demand for
Relief does not differentiate between Respondents nor
specifically identify what specific Relief is sought from
each Respondent.
The Petition raises allegations of different causes of actions,
including an alleged violation of the Sunshine Act, 65
Pa.C.S. [§§] 701[-716], alleged violations of Act 188, . . .
and hypothetical allegations of future undefined violations.
The Petition does not specify which Respondent or
Respondents violated the Sunshine Act, nor separate[s]
such allegations in a separate cause of action. The
Petition does not specify how each Respondent allegedly
violated Act 188, nor separate[s] the distinct violations into
separate causes of action against a specific Respondent or
Respondents. The Petition alleges potential future
violations, but does not specify whether [they are] of the
Sunshine Act, or Act 188, nor which specific facts
support such hypothetical future violations against
which Respondents.
Respondents’ Br. at 2-3 (emphasis added).
Importantly,
5
[t]he pleading requirements for a petition for review
addressed to this Court’s original jurisdiction are set forth in
Rule 1513(e) of the Pennsylvania Rules of Appellate
Procedure [(Pa.R.A.P.)]. One requirement is that the
petition plead ‘a general statement of the material facts
upon which the cause of action is based.’ Pa.[]R.A.P.
1513(e) (emphasis added). In addition, Rule 1517 of the
Pennsylvania Rules of Appellate Procedure provides that,
‘[u]nless otherwise prescribed by these rules, the practice
and procedure under this chapter relating to pleadings in
original jurisdiction petition for review practice shall be in
accordance with appropriate Pennsylvania Rules of Civil
[P]rocedure, so far as they may be applied.’ On these
appellate rules, this Court has opined:
Our original jurisdiction provides for a cause
of action cognizable at common law in the
nature of . . . declaratory judgment . . . , and
be commenced by filing a petition for review
rather than a complaint. Accordingly, the
petition for review, in our original jurisdiction,
is a fact[-]pleading document and detailed
factual allegations will generally be required to
describe adequately the challenged action.
Unless otherwise proscribed in Chapter 15 of
the Pennsylvania Rules of Appellate
Procedure, Pa.[]R.A.P. 106 and 1517
incorporate the rules of civil procedure in
matters brought before us within [our] original
jurisdiction insofar as they may be applied.
The pleader must define the issues, and every
act or performance essential to that act must
be set forth in the complaint.
Machipongo Land & Coal Co. v. . . . Dep’t of Envtl. Res.,
624 A.2d 742, 746 (Pa. Cmwlth. 1993) (citations omitted)
(emphasis added), rev’d on other grounds, . . . 648 A.2d
767 ([Pa.] 1994).
Commonwealth v. Locust Twp., 49 A.3d 502, 507 (Pa. Cmwlth. 2012) (bold emphasis
added). “This Court has defined ‘cause of action’ as ‘the facts which establish or
give rise to a right of action, the existence of which upholds a party’s right to judicial
6
relief.’” Banic v. Workmen’s Comp. Appeal Bd. (Trans-Bridge Lines), 664 A.2d
1081, 1085 (Pa. Cmwlth. 1995), aff’d, 705 A.2d 432 (Pa. 1997) (quoting Saft v.
Upper Dublin Twp., 636 A.2d 284, 286 (Pa. Cmwlth. 1993)).
A review of the Petition reveals that Respondents mischaracterize the
Petition. The Association has alleged one cause of action - the disregard of a
statutory mandate by the State System, Cheyney University, and the Universities. In
its Petition, the Association clearly and concisely sets out a claim for declaratory
relief against Cheyney University and the State System based on the conduct of
Cheyney University and its Council, and the State System, its Chancellor and the
State System’s Board. Moreover, the Association alleges detailed facts in the Petition
describing the process used in the selection and appointment of Cheyney University’s
new president and Respondents’ alleged failure to consult with faculty. Thus, the
alleged challenged conduct is unambiguous: Council’s failure to consult with faculty
in recommending a president, and the Board’s appointment of the new president in
the absence of such consultation. Finally, the relief sought is clear, a declaration
from this Court that: (1) Act 188 requires faculty consultation in a university
president’s selection; (2) Cheyney University and the Council violated Act 188 by
recommending the president’s appointment without consulting faculty; and (3) the
Board violated Act 188 by appointing a president based on a recommendation made
without such consultation.3
3
Notwithstanding, Rule 126 states:
The rules shall be liberally construed to secure the just, speedy and
inexpensive determination of every action or proceeding to which
they are applicable. The court at every stage of any such action or
proceeding may disregard any error or defect of procedure which
does not affect the substantial rights of the parties.
Pa. R.C.P. No. 126 (emphasis added).
7
Contrary to Respondents’ contention, even a cursory reading of the
Petition demonstrates that the Association does not therein assert a claim or seek
relief for Sunshine Act violations. Although the Association stated in the Petition
that “[the Council] is an agency under Section 703 of the Sunshine Act,[4]” and that
“no public notice of the October 16, 2017 meeting was given as required under the
Sunshine Act, . . . at which [the Council] took formal actions of recommending a
candidate for president and disbanding the search committee[,]” it is exceedingly
clear that the Association asserts no claim for a Sunshine Act violation. Petition at 5,
¶ 15(b); 8, ¶ 23. Instead, the Association mentions the lack of Sunshine Act notice to
support its assertion that faculty was not afforded the opportunity to provide input on
the Council’s recommendation. There is no request for relief pertaining to the
Sunshine Act, and Respondents’ feigned confusion is disingenuous at best. Given
that there is one cause of action asserted in the instant matter, and the Association’s
Petition complies with Rules 1019(a) and 1020(a), this Court overrules Preliminary
Objection I.
II. Preliminary Objection II: Insufficient Specificity in a
Pleading as to All Respondents
In Preliminary Objection II, Respondents contend that the Petition does
not include sufficient specificity to inform each Respondent of the challenged
conduct or the causes of action and demands for relief against it.
As addressed supra, the Petition provided sufficient specificity with
respect to the State System’s and Cheyney University’s alleged improper conduct.
The Association averred in the Petition that it is seeking declaratory judgment. See
Petition at 4, ¶ 12. The Association therein referenced Act 188’s faculty consultation
requirement. See Petition at 5, ¶ 15. The Association also described Cheyney
4
65 Pa.C.S. § 703 (defining “agency”).
8
University’s alleged actions in its search for a new president including: the search
committee creation; occurrences at an August 29, 2017 search committee meeting;
occurrences at a September 19, 2017 search committee meeting, including the search
committee chairman’s notification that the search committee would hold a future
meeting open to Cheyney University’s community members (including faculty) to
obtain information on favorable attributes for a presidential candidate; and the
Council’s official October 16, 2017 action in disbanding the search committee and
recommending a presidential candidate to the Board despite that “the search
committee had received no names of candidates, . . . had interviewed no one, and had
held no meetings other than [the August 29, 2017 and September 19, 2017 procedural
meetings.]” Petition at 7, ¶ 22. The Association further claimed that the Council did
not consult with students, faculty and alumni as required by Act 188 before
recommending its candidate to the Board. See Petition at 8, ¶ 25. Additionally, the
Association averred that, at the November 13, 2017 Board meeting, despite being
informed that the Council did not consult with students, faculty and alumni, the
Board appointed the presidential candidate recommended by the Council. See
Petition at 9, ¶¶ 27-29. Accordingly, this Court finds that the Petition is sufficiently
specific with respect to the State System and Cheyney University, and overrules
Preliminary Objection II with respect to those parties.
In contrast, the Association’s only factual allegations in its Petition
referencing the Universities are contained in paragraphs 5, 31 and 32, as follows:
5. [The Universities] are the five of the 14 state-owned
State System universities under Act 188 . . . that are
currently engaged in conducting searches for new
presidents.
Petition at 3, ¶ 5.
31. [The Association] expects that the illegal action by [the
Council], and endorsed by the [Board], will be repeated at
9
those [Universities] currently undergoing presidential
searches.
32. A declaration by this Court of the faculty members’
legal right to be consulted is necessary so that faculty at [the
Universities], which are currently conducting presidential
searches, are afforded their legal rights under Act 188.
Petition at 10, ¶¶ 31-32. The Petition contains no factual allegations describing any
improper actions taken by the Universities. Indeed, the only facts averred pertaining
to the five Universities is that they are conducting presidential searches and that the
Association believes the Universities will similarly violate Act 188. “[A] complaint
must set forth material facts which establish a cause of action and which enable the
defendant to know the nature of [its] alleged wrongdoing so that [it] may prepare a
defense.” Gen. State Auth. v. Lawrie & Green, 356 A.2d 851, 856 (Pa. Cmwlth.
1976) (emphasis added); see also Locust Twp. This Court may not presume in the
absence of factual allegations alleging specific wrongdoing, that five different
universities conducting five different searches, with five different councils of trustees
will engage in the same alleged conduct as Cheyney University. Accordingly, this
Court sustains Preliminary Objection II with respect to the Universities and dismisses
them from this action.5
5
Having sustained Preliminary Objection II with respect to the Universities and dismissed
them from the action, this Court need not address Respondents’ remaining Preliminary Objections
which apply only to the Universities. Notwithstanding, with respect to Preliminary Objections VIII
through XII, this Court notes that, as a matter of law, the mere expectation that a future event may
occur is not sufficient to afford declaratory relief. In Public Advocate v. Brunwasser, 22 A.3d 261
(Pa. Cmwlth. 2011), this Court explained:
The purpose of the Declaratory Judgments Act[, 42 Pa.C.S. §§ 7531-
7541,] ‘is to settle and afford relief to any person from uncertainty
and insecurity with respect to rights, status and legal relations affected
by a statute.’ Chester Upland Sch. Dist. v. C[ommonwealth], . . . 495
A.2d 981, 983 ([Pa. Cmwlth.] 1985). ‘[I]t is well settled that
declaratory judgments are not to be entered in anticipation of
events that may never occur.’ Yarmoski v. Lloyd, . . . 531 A.2d
1169, 1171 ([Pa. Cmwlth.] 1987). A plaintiff seeking relief in
10
For all of the above reasons, Preliminary Objection I is overruled.
Preliminary Objection II is overruled with respect to the State System and Cheyney
University, but sustained as to the Universities. The Universities are hereby
dismissed from this action. The remaining Preliminary Objections are dismissed as
moot.
___________________________
ANNE E. COVEY, Judge
anticipation of events that may never occur, based upon a
hypothetical future occurrence, has not yet been adversely
affected by the alleged violations and declaratory judgment is not
an appropriate remedy to determine rights in anticipation of
events that may never occur. Indep[.] Blue Cross v. Pa. Ins. Dep’t.,
802 A.2d 715, 719 (Pa. Cmwlth. 2002). To bring an action, the
plaintiff’s interest ‘must be a direct, substantial and present interest,
as contrasted with a remote or speculative interest.’ Id. To
require otherwise would result in this Court issuing advisory opinions,
which is beyond our jurisdiction to do. Rendell v. Pa. State Ethics
Comm’n., 938 A.2d 554, 559 (Pa. Cmwlth. 2007), rev[’]d . . . on other
grounds, . . .983 A.2d 708 ([Pa.] 2009).
Pub. Advocate, 22 A.3d at 270-71 (emphasis added). In the instant matter, the Association’s
allegations against the Universities involve speculation of events that may never occur. Declaratory
judgment may not be entered against the Universities on that basis.
Notwithstanding, the Universities’ dismissal from this action does not impair the
Association’s possible success on the merits. As a practical matter, if this Court ultimately grants
declaratory judgment against the State System, the State System would be prohibited from
appointing recommended presidential candidates for the Universities where councils of trustees had
not consulted with students, faculty and alumni.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Association of Pennsylvania State :
College and University Faculties, :
Petitioner :
:
v. :
:
Pennsylvania State System of Higher :
Education, Cheyney University, :
Clarion University, Lock Haven :
University, Mansfield University, :
Millersville University and :
Slippery Rock University, : No. 575 M.D. 2017
Respondents :
ORDER
AND NOW, this 12th day of October, 2018, the preliminary objections
filed by the Pennsylvania State System of Higher Education (State System), Cheyney
University, and five other state-owned State System Universities - Clarion University,
Lock Haven University, Mansfield University, Millersville University and Slippery
Rock University (Universities) to the Association of Pennsylvania State College and
University Faculties’ Petition for Review in the Nature of an Action for Declaratory
Relief (Petition) are sustained in part and overruled in part as follows:
1. Preliminary Objection I is overruled.
2. Preliminary Objection II is sustained with respect to the Universities,
and the Universities are dismissed from this action. Preliminary
Objection II is overruled with respect to the State System and Cheyney
University.
3. Preliminary Objections III through XII are dismissed as moot.
The State System and Cheyney University shall file an answer to the
Petition within thirty (30) days from the date of this Order.
___________________________
ANNE E. COVEY, Judge