Nathan R. Bohlander, Esq. Attorney for Plaintiff PA Attorney … · · 2015-09-09Nathan R....

Case No.: 14-08552

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Nathan R. Bohlander, Esq. Attorney for Plaintiff

PA Attorney ID# 312509

The Fairness Center

1060 First Avenue

Suite 420

King of Prussia, PA 19406

570.574.9289

610.265.2255 (facsimile)

[email protected]

IN THE COURT OF COMMON PLEAS OF

LANCASTER COUNTY, PENNSYLVANIA

JANE LADLEY and CHRISTOPHER

MEIER

Plaintiffs,

v.

PENNSYLVANIA STATE EDUCATION

ASSOCIATION.

Defendant.

_______ Term, 2014

No: 14–08552

PLAINTIFFS’ RESPONSE TO DEFENDANT’S PRELIMINARY OBJECTIONS

AND NOW comes Plaintiffs Jane Ladley (“Ms. Ladley”) and Christopher Meier (“Mr.

Meier”) through their counsel, Nathan R. Bohlander, Esquire and the law firm of the Fairness

Center, respectfully filing this Response to Defendant Pennsylvania State Education Association

(“PSEA”)’s Preliminary Objections to Plaintiff’s Complaint as follows:

BASIS FOR DENIAL OF DEFENDANT’S PRELIMINARY OBJECTIONS

“A party raising preliminary objections must overcome a significant burden.” Pantelidis

v. Barclay Condo. Ass’n, No. 3819 AUG. TERM 2000, 2000 WL 33711088, at *1 (Pa. Ct. Com. Pl.

Dec. 8, 2000). In order to sustain a party’s preliminary objections, it is necessary “that the face of

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the complaint indicate that [the] claims may not be sustained and that the law will not permit

recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.” Bailey

v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999); see County of Allegheny v. Commonwealth,

490 A.2d 402, 372 (Pa. 1985); Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth.

1990). When evaluating the legal sufficiency of the challenged pleading, the court must accept as

true all well-pleaded material and relevant facts alleged in the complaint, and every inference that

is fairly deducible from those facts are also presumed to be true. Willet v. Penn. Med. Catastrophe

Loss Fund, 702 A.2d 850, 853 (Pa. 1997); see Penn. Inst’l Health Servs., Inc. v. Com., Dep’t of

Corrs., 631 A.2d 767 (Pa. Cmwlth. 1993), aff’d, 640 A.2d 413 (1994); Wurth, 584 A.2d at 407;

and. Any doubt must be resolved in favor of the overruling of the preliminary objections.

Pantelidis at 2000 WL 33711088, at *2.

A court may only sustain preliminary objections when, based on the facts pleaded, it is

clear and free from doubt that that complainant will be unable to prove facts legally sufficient to

establish a right to relief. Hosp. & Healthsystem Ass’n of Penn. v. Dep’t of Pub. Welfare, 888

A.2d 601, 607 n.12 (Pa. 2005). At the stage in the proceedings where the court is faced with ruling

on preliminary objections in the form of demurrers in a declaratory judgment action, “the court is

not concerned with the question whether plaintiff is right in a controversy, but only with whether

he is entitled to a declaration of rights with respect to the matters alleged.” Arel Realty Corp. v.

Myers Bros. Parking Corp., 346 A.2d 796, 797 (Pa. Super. 1975) (quoting 22 Am. Jur. 2d

Declaratory Judgments § 91 (1965)); see 22A Am. Jur. 2d Declaratory Judgments § 228 (2014)

(“In considering a motion to dismiss, the only question is whether, on the basis of the allegations,

a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment

and not whether the plaintiff is entitled to a favorable declaration.”).

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INTRODUCTORY STATEMENT

1. Admitted in part. The PSEA’s characterization of title 71, section 575 of the

Pennsylvania Statutes (“section 575”) as authorizing the collection of “fair share fees”

from all nonmembers is a conclusion of law,1 and otherwise incomplete. In fact, in

section 575(e)(2), the Pennsylvania Legislature clearly authorized objections “to the

payment of fair share fees for bona fide religious grounds.” A verified religious

objector is exempt from payment of the fair share fee and instead “shall pay the

equivalent of the fair share fee to a nonreligious charity,” despite the fact that he or she

remains represented by the “exclusive representative.” 71 P.S. § 575(h) (emphasis

added).

2. Admitted.

3. Admitted.

4. Admitted in part. Denied as stated that the Penn Manor Education Association

(“PMEA”), PSEA, and National Education Association (“NEA”) are exclusive

representatives for Mr. Meier for all purposes. Section 575 clearly distinguishes

between the “exclusive representative” and the “statewide employe organization.” 71

P.S. § 575(a). Moreover, the collective bargaining agreement (“CBA”) between the

Penn Manor School District and AGEA “recognizes the [PMEA] as the exclusive and

sole representative for collective bargaining for all employees included in the

bargaining unit.” Plaintiffs’ Complaint, Exhibit N, pg. 1.

5. Admitted.

1 “[I]n ruling on preliminary objections, in the nature of a demurrer . . . . [t]he court need not accept as true conclusions

of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion.” Giordano v.

Ridge, 737 A.2d 350, 352 (Pa. Cmwlth. 1999), aff’d, 559 Pa. 283, 739 A.2d 1052 (1999), and aff’d, 562 Pa. 154, 753

A.2d 1277 (2000).

Case No.: 14-08552

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6. Admitted.

7. Admitted in part. Denied as stated that the Avon Grove Education Association

(“AGEA”), PSEA, and National Education Association (“NEA”) are all exclusive

representatives for Ms. Ladley for all purposes. Section 575 clearly distinguishes

between the “exclusive representative” and the “statewide employe organization.” 71

P.S. § 575(a). Moreover, the CBA between the Avon Grove School District and AGEA

“recognizes the [AGEA] as the exclusive and sole representative for collective

bargaining for all professional employees.” Plaintiffs’ Complaint, Exhibit A, pg. 1.

8. Admitted.

9. Admitted in part. Denied as stated that Ms. Ladley and Mr. Meier, as verified religious

objectors to union membership, must pay a fair share fee. Rather, any verified religious

objector “shall pay the equivalent of the fair share fee” to a nonreligious charity. 71

P.S. § 575(h) (emphasis added).

10. Admitted.

11. Admitted in part. Although “Pennsylvania feepayers” are forced to pay to the union a

fee to cover costs “reasonably employed to implement or effectuate the duties of the

employe organization as exclusive representative,” verified religious objectors are

exempt from payment of a fee. Therefore, denied as stated that:

a. “Pennsylvania feepayers, including Plaintiffs Meier and Ladley . . . .” Ms.

Ladley and Mr. Meier, who are verified religious objectors, are not

“Pennsylvania feepayers,” for the reasons articulated in Paragraph 1.

b. “Pennsylvania feepayers . . . are only charged for collective bargaining, contract

administration, and other expenses that are reasonably related to a union’s effort

Case No.: 14-08552

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to provide services to a bargaining unit, but are never charged for ideological,

political, or lobbying expenditures.” While the calculation of the fair share fee

is based only on services related to collective bargaining, the line between

collective bargaining and political activity is blurred. Harris v. Quinn, 573 U.S.

___ , 134 S. Ct. 2618, 2632-2633 (2014) (“Abood [v. Detroit Bd. of Educ., 431

U.S. 209 (1977)] failed to appreciate the conceptual difficulty of distinguishing

in public-sector cases between union expenditures that are made for collective-

bargaining purposes and those that are made to achieve political ends. In the

private sector, the line is easier to see. Collective bargaining concerns the

union’s dealings with the employer; political advocacy and lobbying are

directed at the government. But in the public sector, both collective-bargaining

and political advocacy and lobbying are directed at the government.”).

12. Admitted.

13. Admitted in part. Denied as stated that:

a. “Fair share fee laws have been universally upheld as constitutional.” Section

575 itself was held partially unconstitutional in Hohe v. Casey, 956 F.2d 399,

409 (3d Cir. 1992) (holding that “subsection (g) is invalid in its entirety”). In

any event, fair share fee laws represent a well of constant litigation producing

a range of mixed results, even after they were upheld in theory in Abood. See,

e.g., Harris, 573 U.S. ___ , ; Knox v. Service Employees Int’l Union, Local

1000, 567 U.S. ___, 132 S.Ct. 2277 (2012); and; Chicago Teachers Union,

Local No. 1 v. Hudson, 475 U.S. 292 (1986); see also Tim A. Thomas, Validity

of Union Procedures for Fixing and Reviewing Agency Fees of Nonunion

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Employees Under Public Employees Representative Contract – post-Hudson

Cases, 92 A.L.R. Fed. 893; Milton L. Chappell, From Abood to Tierney: The

Protection of Nonunion Employees in an Agency Shop; You’ve Come a Long

Way, 15 OHIO N.U. L. REV. 1 (1988).

b. “Otherwise, nonmembers become ‘free riders.’ ” Religious objectors

contribute the equivalent of a fair share fee to a charity and are not “free riders.”

See Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO, 643 F.2d 445,

451 (7th Cir. 1981) (“Because a religious objector under a charity-substitute

accommodation bears the same financial burden as his co-workers, he is not, as

the Union suggests, a ‘free rider’ seeking something for nothing . . . .”).

14. Admitted in part. Denied as stated that the fee owed by a nonmember of the union is a

“debt.” Such characterization is a conclusion of law with no foundation. Further

denied, in that verified religious objectors owe nothing to their union for the “services

rendered,” services for which religious objectors cannot in good conscience pay to

receive. Defendants’ Preliminary Objections, ¶ 14.

15. Admitted.


a. “The debt (i.e., fee) would never be eliminated.” The fee owed by a nonmember

of the union cannot accurately be characterized as a “debt,” for the reasons

articulated in Paragraph 14.

b. “Neither Plaintiff Meier nor Plaintiff Ladley raised calculation challenges.” As

the PSEA is aware, Mr. Meier did raise a calculation objection.


Case No.: 14-08552

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a. “[F]iling a religious objection does not relieve the feepayer of the debt (i.e.,

payment of a fee).” Ms. Ladley and Mr. Meier are no longer “feepayers”; they

were verified as religious objectors, and are thus never subject to payment –

“fair share fee” or otherwise – to the PSEA. 71 P.S. § 575(h). Further denied

that the fee owed by a nonmember of the union can ever be characterized as a

“debt.”

b. ““[T]he union satisfies the feepayer’s religious objection by having the fee paid

over . . . .” Because the money at issue belongs to the religious objector – not

the union – it is the religious objector’s duty – not the union’s – to send his or

her money to a charity. 71 P.S. § 575(h) (“If the exclusive representative

accepts the verification, the challenging nonmember shall pay the equivalent

of the fair share fee . . . .”). Further, as religious objectors, Ms. Ladley and Mr.

Meier have ceased to become “feepayers,” and the money they pay to a charity

is not a “fee,” but an amount equivalent to the fee. 71 P.S. § 575(h).

18. Admitted.

19. Admitted.

20. Admitted in part. Denied as stated that the PSEA was providing legal services as an

agent for PMEA, as a conclusion of law. By way of further answer, the PSEA did not

purport to speak as an agent for the “exclusive representative,” the PMEA. Instead, it

wrote:

However, PSEA cannot agree to the entity to which you

request your fair share fees to be sent, namely, the National

Right-to-Work Legal Defense Foundation. . . .

We cannot agree to the National Right-to-Work Legal

Defense Foundation as the entity to receive your fair share fees,

as that organization has been a litigant against PSEA and

Case No.: 14-08552

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NEA on several occasions and thus, would create a conflict of

interest for us to agree to have fees sent to that organization.

Plaintiffs’ Complaint, Exhibit X (emphasis added).

21. Admitted in part. Denied as stated that the PSEA is holding “fair share fees collected

from [Mr.] Meier,” because Mr. Meier, as a verified religious objector, is not subject

to the payment of fair share fees. 71 P.S. § 575(h).

22. Admitted in part. After the PSEA denied Ms. Ladley’s choice of the Coalition for

Advancing Freedom (“CAF”), Ms. Ladley promptly chose the Constitutional

Organization of Liberty (“COOL”) as her alternate choice. Plaintiffs’ Complaint,

Exhibits H, L.


a. “Defendant PSEA, as an agent providing legal services for the exclusive

bargaining representative, Avon Grove Education Association, denied Plaintiff

Ladley’s selected charity . . . .” Denied for the reasons articulated in Paragraph

20.

b. “Defendant PSEA . . . denied Plaintiff Ladley’s selected charity because

PSEA’s research showed that her designated charity was religious.” Ms.

Ladley’s choice of CAF was denied first not because it was religious, but

because it was “political.” (“[T]he PSEA/NEA is not amenable to your

suggestion, as the charity appears to be political and we have a policy of not

allowing political organizations to receive fair share fees.”) Plaintiffs’ Exhibit

I. Defendant PSEA is quoting selectively from the Plaintiffs’ exhibits, and is

choosing to focus exclusively on a secondary reason for denial of Ms. Ladley’s

original choice.

Case No.: 14-08552

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c. “The Pennsylvania Fair Share Fee Law requires the fees collected from

religious objectors to be paid ‘to a nonreligious charity agreed upon by the

nonmember and the exclusive representative.’ ” Denied for the reasons


PRELIMINARY OBJECTION #1 – REQUEST FOR INJUNCTIVE RELIEF

RULE 1281(a)(8)-Full, Complete, and Adequate Remedy at Law – All Counts

24. Paragraphs 1 through 23 are realleged and incorporated by reference as if set forth

herein.

25. Denied. The allegations made by Defendant in this paragraph are conclusions of law

to which no responsive pleading is required under the Rules of Civil Procedure, see

Giordano, 737 A.2d at 352 (“[I]n ruling on preliminary objections, in the nature of a

demurrer . . . . [t]he court need not accept as true conclusions of law, unwarranted

inferences from the facts, argumentative allegations, or expressions of opinion.”), and

same are therefore denied. Furthermore, Defendant’s reliance on Hohe v. Casey, 868

F.2d 69 (3d. Cir. 1989), is misguided, as that case involved a preliminary injunction,

rather than the permanent injunction sought by Plaintiffs. Plaintiffs’ Complaint, pg.

3, ¶ 8; pg. 37, ¶ I. Plaintiffs’ response to this issue is more fully examined in the

accompanying brief.

26. Denied as a conclusion of law and for the reasons articulated in Paragraph 25.

Case No.: 14-08552

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PRELIMINARY OBJECTION #2-COUNTS I, III, V, VII, ALTERNATIVE COUNT I,

RELATING TO PLAINTIFF LADLEY

Rule 1028(a)(4)—Legal Insufficiency of a Pleading (Demurrer)


herein.

28. Denied as conclusions of law. Furthermore:

a. As the PSEA made clear to Ms. Ladley, her choice was rejected for being

“political,” not for being religious. Plaintiffs’ Exhibit I. Again, Defendant

PSEA is quoting selectively from the Plaintiffs’ exhibits, and is choosing to

focus exclusively on a secondary reason for denial of Ms. Ladley’s original

choice.

b. Verified religious objectors exempt from payment of fair share fees as

articulated in Paragraphs 1, 17, so it is impossible to have them “re-directed”

anywhere.

c. CAF is not a “religious” organization. Black’s Law Dictionary defines

“religious corporation” as “[a] corporation created to carry out some

ecclesiastical or religious purpose.” (9th ed. 2009). The short, inconspicuous,

and ambiguous selection chosen by Defendant PSEA from the CAF website

cannot be interpreted as describing the “purpose” of the organization or

otherwise meaning that CAF is a “religious” organization. Plaintiffs’ response

to this issue is more fully examined in the accompanying brief.

29. Admitted.

30. Denied as conclusions of law. Furthermore, again, Ms. Ladley’s choice was rejected

for being “political,” not for being religious. Plaintiffs’ Exhibit I.

Case No.: 14-08552

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31. Denied as conclusions of law. The PSEA’s allegations only underscore the need for a

declaration as to Ms. Ladley’s rights, status, or other legal relations under section 575;

there is a clear and discernable disagreement between Ms. Ladley and the PSEA.

32. Denied as conclusions of law. Also denied that, even if Ms. Ladley’s initial choice of

charity, CAF, were “unacceptable as a matter of law,” it would obviate the need for a

declaratory judgment. Ms. Ladley would remain “uncertain[ ] and insecur[e] with

respect to [her] rights, status, and other legal relations” with respect to her second

choice and any future choices of charity. 42 Pa.C.S. § 7541(a).

33. Denied as conclusions of law. Furthermore, this is a declaratory judgment action,

meaning the standard of “ripeness” for consideration by the court is significantly lower.

Claims authorizing declaratory judgment actions while not in active stage of

controversy, are considered “ripening seeds of controversy” and are present and

indicative of threatened litigation in the immediate future. In re Cryan’s Estate, 152

A. 675, 679 (Pa. 1930); Stuchell v. Girard Trust Bank, 5 Pa. D. & C.3d 189, 191 (Pa.

Ct. Com. Pl. 1977) (“[W]hile an actual controversy might not be present, the ripening

seeds of one would be sufficient for the grant of relief.”). Additionally, as this case

involves a First Amendment claim, it is subject to a relaxed ripeness standard.

Peachlum v. City of York, 333 F.3d 429, 434 (3d Cir. 2003). Ms. Ladley’s money has

already been taken from her and it is being held by Defendant PSEA in an escrow

account. She has chosen an alternate charity, but – despite attempts to contact

Defendant PSEA – has heard nothing for several months. She is requesting “relief from

uncertainty and insecurity with respect to [her] rights, status, and other legal relations,”

Case No.: 14-08552

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and is thus bringing this declaratory judgment action. 42 Pa.C.S. § 7541(a). Plaintiffs’

response to this issue is more fully examined in the accompanying brief.

PRELIMINARY OBJECTION #3-COUNTS I, III, III, IV, ALTERNATIVE COUNTS I

AND II RELATING TO FEDERAL DUE PROCESS AND FIRST AMENDMENT

CONSTITUTIONAL ISSUES AS WELL AS STATE CONSTITUTIONAL ISSUES



herein.

35. Admitted in part. Denied inasmuch as Defendant is suggesting that Abood applies to

Ms. Ladley and Mr. Meier. Abood applies specifically to the collection of fair share

fees, which are not at issue in the instant matter. The applicable statute reads that the

verified religious objector “shall pay the equivalent of the fair share fee” to a

nonreligious charity. 71 P.S. § 575(h). (emphasis added) Plaintiffs’ response to this

issue is more fully examined in the accompanying brief.

36. Denied as conclusions of law and for the reasons articulated in Paragraphs 11 and 13.

Plaintiffs’ response to this issue is more fully examined in the accompanying brief.

37. Denied as conclusions of law and for the reasons articulated in Paragraph 36.

38. Admitted in part. Denied as stated that any verified religious objector can accurately

be described as a “feepayer.” See 71 P.S. § 575(h).

39. Denied as conclusions of law.


herein.

41. Admitted. However, the presumption of constitutionality is just one of several statutory

presumptions. This Court may also presume, inter alia, “[t]hat the General Assembly

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does not intend a result that is absurd, impossible of execution or unreasonable,” and

“[t]hat the General Assembly intends to favor the public interest as against any

private interest.” 1 Pa.C.S.A. § 1922(1), (5) (emphasis added).

42. Admitted. By way of further answer, Plaintiffs incorporate Paragraph 41 of this

Response as if set forth herein.











48. Admitted in part. The Third Circuit in fact held that section 575 was partially

unconstitutional. Hohe v. Casey, 956 F.2d at 409 (“[S]ubsection (g) is invalid in its

entirety.”).



50. Denied as conclusions of law. The allegations made by Defendant in this paragraph

only underscore the need for a declaratory judgment in this matter. As this case

presents a case of first impression with respect to constitutional implications of the

Case No.: 14-08552

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“agreed upon” language in Pennsylvania, the only reason there are no speech and

association restraints set forth in caselaw is the lack of caselaw in this area.

Furthermore, verified religious objectors are exempt from payment of a fair share fee.

See 71 P.S. § 575(h).

51. Denied as conclusions of law. Also, Defendant PSEA cites the Pennsylvania Office of

Open Records case of In the Matter of Simon Campbell v. PSEA, Docket No. AP-2009-

0547, 2009 WL 6503810 (Pa. Off. Open Rec. Oct. 2, 2009), which carries no weight

in the instant case. Whether the PSEA is a “state actor” – a “Commonwealth agency”

– for open records purposes is an entirely different question from whether the PSEA is

a state actor or acting under color of state law for constitutional purposes. For

constitutional purposes, the PSEA is acting “under color of state law” as its “power [is]

possessed by virtue of state law and made possible only because the wrongdoer is

clothed with the authority of state law.” Costa v. Frye, 588 A.2d 97, 99 (Pa. Cmwlth.

1991). In the instant case, Defendant PSEA’s authority is derived solely from section

575, the Public School Code, and the Public Employe Relations Act. Furthermore, and

again, verified religious objectors are exempt from payment of a fair share fee. See 71

P.S. § 575(h).

52. Denied as conclusions of law. Again, verified religious objectors are exempt from

payment of a fair share fee. See 71 P.S. § 575(h). Plaintiffs’ response to the issue of

whether exclusive bargaining representatives are “private actors” runs counter to

decades of caselaw in this area and was addressed in Plaintiffs’ Complaint. Plaintiffs’

Complaint, pg. 15, ¶ 53. This issue is more fully examined in Paragraph 51 of this

Response, as well as in Plaintiffs’ accompanying brief.

Case No.: 14-08552

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53. Denied as conclusions of law. First, and yet again, the PSEA errs in referring to Mr.

Meier’s “fair share fee,” as verified religious objectors are exempt from payment of a

fair share fee. See 71 P.S. § 575(h). Second, as discussed both in Plaintiffs’ Complaint

and in Paragraphs 13 and 35 of this Response, Abood applies specifically to the

collection of fair share fees, which are not at issue in the instant matter. Plaintiffs’

Complaint, pg. 18, ¶ 65. Plaintiffs’ response to this issue is more fully examined in the

accompanying brief. Third, clearly, the National Right-to-Work Legal Defense Fund’s

“sole purpose” is not “challenging the [PSEA] itself.” Finally, the PSEA

mischaracterizes Mr. Meier’s claims, which are adequately set forth in the complaint.

54. Denied as conclusions of law. The PSEA’s self-serving, unequivocal response only

underscores the need for a declaratory judgment. Furthermore, and yet again, the

instant case does not involve “feepayers.” 71 P.S. § 575(h).

55. Denied as conclusions of law.

56. Denied as conclusions of law. Furthermore, the Attorney General of Pennsylvania was

notified via service of Plaintiffs’ Complaint on September 19, 2014. The Proof of

Service was received by the Lancaster County Prothonotary at that time and docketed

on September 29, 2014. Due to the delay in docketing, the PSEA was likely unaware

of service to the Attorney General.

57. Denied as conclusions of law. Moreover, the Attorney General of Pennsylvania was

notified via service of Plaintiffs’ Complaint on September 19, 2014..

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PRELIMINARY OBJECTION #4-COUNTS V AND VI RELATING TO

MISCONSTRUING “AGREED-UPON’ AND THE PENNSYLVANIA STATUTORY

CONSTRUCTION ACT



herein.

59. Admitted and adopted. It is patently absurd to construe “agreed upon” as a license for

the PSEA to block religious objectors from contributing to certain charities and to keep

funds belonging to religious objectors in escrow ad infinitum, without remedy, until

the religious objector agrees to fund the PSEA’s preferred charities.

60. Denied as conclusions of law. Once again, verified religious objectors are exempt from

payment of a fair share fee, and Ms. Ladley and Mr. Meier cannot be labeled

“feepayers.” 71 P.S. § 575(h). (emphasis added)

61. Denied as conclusions of law. By way of further answer, the Legislature’s use of

“agreed upon,” in context, is neither a limitation on the nature of the charity selected

nor a grant of permission for unions to practice viewpoint discrimination.

62. Denied as conclusions of law. By way of further answer, “agreed upon” does not

necessarily denote an endorsement, as the PSEA suggests. Merriam-Webster provides

the following secondary definition of “agree”: “to say that you will do, accept, or allow

something that is suggested or requested by another person.” See http://www.merriam-

webster.com/dictionary/agreed. As discussed within Paragraphs 90-94 of Plaintiffs’

Complaint and the accompanying brief, “agreed upon,” in context, should either be

interpreted as ambiguous or as producing an unconstitutional result.

Case No.: 14-08552

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63. Denied as conclusions of law. Yet again, Ms. Ladley and Mr. Meier cannot be labeled

“feepayers.” 71 P.S. § 575(h). (emphasis added). Also denied for the reasons


64. Denied as conclusions of law. Again, Mr. Meier cannot be labeled as a “feepayer.” 71

P.S. § 575(h) (emphasis added). Additionally, the PSEA misstates the substance of

Mr. Meier’s claims, which focus on the procedure employed by the PSEA and the

viewpoint discrimination committed by the PSEA under the color of state law. The

PSEA is only “forced to accept a charity,” if at all, because: (1) the Legislature enacted

protections for the benefit of religious objectors; (2) the PSEA is not permitted to

engage in viewpoint discrimination; and (3) it supported, as a bargaining point, the

mandatory collection of fair share fees from nonmembers, which prompted the

religious objections at issue in this case.

65. Denied as false and as conclusions of law. In Paragraphs 28 through 30 of its

Preliminary Objections, Defendant PSEA asserts that it rejected Ms. Ladley’s choice

of CAF because it found the organization to be “religious.” We deny that assertion, as

discussed in Paragraphs 28 and 30 of Plaintiffs Response. However, in Paragraph 65,

Defendant PSEA claims that Ms. Ladley’s original selection was “religious, and on that

basis alone, her charity was lawfully denied.” This directly contradicts Defendant’s

own words in its March 19, 2014 email to Ms. Ladley, where Defendant PSEA states

that it is “not amenable to your suggestion as the charity appears to be political and we

have a policy of not allowing political organizations to receive fair share fees.”

Plaintiffs’ Exhibit I (emphasis added). This email was sent prior to any discussion of

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CAF being “religious,” and being denied on that basis, and certainly not on “that basis

alone.”

66. Denied as conclusions of law. Admitted insofar as the PSEA recognizes no statutory

mechanism for resolution of matters like the one before this Court. Plaintiffs’ response


67. Denied as conclusions of law. In addition, dismissal in this instance would not be

appropriate. See Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. Ct. 2014) (“Even where a

trial court sustains preliminary objections on their merits, it is generally an abuse of

discretion to dismiss a complaint without leave to amend.”) (quoting In re Estate of

Luongo, 823 A.2d 942, 946 (Pa. Super. 2003)).

PRELIMINARY OBJECTION #5-COUNTS VII AND VIII RELATING TO

PLAINTIFFS’ RIGHT TO DEAL WITH THEIR LOCAL UNION



herein.

69. Admitted.

70. Admitted.

71. Denied as conclusions of law. Further, as more fully examined in Paragraph 72 of this

Response, as well as the accompanying brief, because section 575 distinguishes

between the “exclusive representative” and the “statewide employe organization,” the

assignment of duties within section 575 leaves the PSEA with no “available option” in

dealing with religious objections and the designation of a charity, other than allowing

the local union to perform its statutory duty. Otto v. Pennsylvania State Education

Case No.: 14-08552

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Association-NEA, 330 F.3d 125, 134 (3d Cir. 2003) (holding that, despite

comparatively heavy costs, local unions, and not the statewide unions, must complete

their own financial audits). The statute’s text unequivocally requires that the local

association, as the “exclusive representative,” must resolve this matter along with the

religious objectors themselves.

72. Denied as conclusions of law. Again, Ms. Ladley and Mr. Meier cannot be labeled

“feepayers.” Furthermore, Defendant’s assertion is denied to the extent that the PSEA

alleges the NEA, PSEA, and AGEA/PMEA have the same title, role, and

responsibilities with respect to the religious objection statute. Section 575 tasks the

“exclusive representative” with the tasks of responding to religious objections and

choices of charity. The same statute also distinguishes between the “exclusive

representative” and the “statewide employe organization.” “Exclusive representative”

is an “employe organization selected by the employes of a public employer to represent

them for purposes of collective bargaining.71 P.S. § 575(a). Meanwhile, the statute

defines “statewide employe organization” as the “Statewide affiliated parent

organization of an exclusive representative, or an exclusive representative representing

employes Statewide, and which is receiving nonmember fair share payments.” 71 P.S.

§ 575(a). As the PSEA recognizes, this definition refers to the statewide union – the

PSEA – rather than the local affiliate. Since it is the “exclusive representative” alone

that is charged with the receipt of religious objections, verification of these objections,

and agreement with the objectors’ choice of charity, Plaintiffs deny any assertion by

Defendant PSEA that the statewide (PSEA) or national (NEA) union has any role in

Case No.: 14-08552

20

these aforementioned statutory responsibilities. 71 P.S. § 575(h). Plaintiffs’ response


73. Admitted in part. Yet again, Ms. Ladley and Mr. Meier cannot be labeled “feepayers.”

71 P.S. § 575(h). (emphasis added)

74. Admitted in part. Denied as stated that Ms. Ladley and Mr. Meier are “feepayers.”

Again, as verified religious objectors, they are exempt from payment of fair share fees.

75. Admitted. However, the instant case is not about the authority to charge fair share fees.

76. Admitted. However, the local unions’ decision not to charge a fair share fee does not

alter the language of section 575, which requires the “exclusive representative” – not

the “statewide employe organization” – to approve or deny religious objections and

“agree upon” a nonreligious charity.

77. Denied as conclusions of law. Although the local unions have declined to charge a fair

share fee, so there are no fair share fees at issue in the instant case.

78. Denied as conclusions of law. Additionally, the PSEA’s role with regard to “fair share

decisions” has no application to the instant case, which does not deal with fair share

fees and concerns a statute that includes specific language tasking the local unions with

specific responsibilities.

79. Denied as conclusions of law and for the reasons articulated in Paragraph 72.

80. Denied as conclusions of law. In addition, dismissal in this instance would not be

appropriate. See Hill, 85 A.3d at 557 (“Even where a trial court sustains preliminary

objections on their merits, it is generally an abuse of discretion to dismiss a complaint

without leave to amend.”) (quoting In re Estate of Luongo, 823 A.2d at 946).

Case No.: 14-08552

21

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that this Honorable Court OVERRULE

Defendant’s Preliminary Objections, or in the alternative, grant Plaintiff’s Leave to File an

Amended Complaint.

Respectfully submitted,

Date: October 29, 2014 /s/ Nathan Bohlander Nathan R. Bohlander, Esq. PA Attorney ID# 312509

The Fairness Center 1060 First Avenue Suite 420 King of Prussia, PA 19406

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