School Law Information Exchange & Public Sector Arbitration – Information you need to keep you up to speed on the issues facing public education.
View this email in your browser

Vol. 53, No. 19

Kegerise v. Delgrande et al., 2016 WL 4761080 (Pa. Cmwlth. 2016).

            Constructive Discharge

Commonwealth Court affirmed the order of the trial court requiring the school district to reinstate Dr. Kegerise as the superintendent.  
      Kegerise’s second term as superintendent was set to expire on June 17, 2017. On March 25, 2014, Kegerise advised the school board that she would be out of work for a month per her physician’s instruction. On April 17, 2014, Kegerise filed a federal complaint against the district and individual board members, alleging that the district caused her working conditions to become so intolerable that it constituted a constructive discharge. On April 21, 2014, the school board added to the agenda and voted to approve a motion to accept Kegerise’s resignation. Consequently, her contract ceased to be effective on April 17, 2014 (the day she filed her federal complaint). 
      Kegerise filed a complaint in mandamus – an extraordinary remedy designed to compel the performance of a ministerial act or a mandatory duty and may only be granted where the plaintiff has established a clear legal right, a corresponding duty in the defendant, and that no other appropriate remedy is available – requesting the trial court to order the school board to reinstate her. The trial court issued an order directing the school board to reinstate Kegerise as the superintendent and restore all back pay and benefits as if her employment had not been interrupted.
      On appeal, the district argued that her federal complaint alleging constructive discharge constituted a resignation, the procedures it used were proper, and mandamus is improper. Commonwealth Court affirmed the trial court’s order.
      With regard to the constructive discharge argument, Commonwealth Court held the test is whether a hypothetical, reasonable employee would have resigned, not the employee alleging constructive discharge. Here, the filing of a federal complaint did not constitute a constructive discharge, the court noted that endorsing the school board’s assertion would essentially undermine the statutory procedures for removing a superintendent. Commonwealth Court also concluded that the trial court’s issuance of mandamus was proper because Kegerise has a clear legal right to perform her duties as superintendent under the School Code and the school board has a corresponding duty to reinstate her. The court noted that in the event a school board has a reason to terminate a superintendent, the board should follow the procedures in Section 1080 of the Public School Code.
Click here for the full decision.

In Short

DPJ v. Delaware Valley Charter High School, 2016 WL 4554702 (E.D. Pa. 2016). The court granted the school district’s motion to dismiss in this case involving an injury sustained during a school shooting. The plaintiff sustained an arm injury when two students fired a gun in the school gymnasium. A former student who was not required to pass through security devices to enter the school provided the students with the gun. As a result of the shooting, the plaintiff suffered from post-traumatic stress disorder. In the federal complaint, the plaintiff alleged a violation of her Fourteenth Amendment substantive due process right pursuant to a state-created danger theory of liability. The elements necessary to successfully plead a state-created danger claim are: (1) foreseeable and fairly direct harm, (2) conscience-shocking conduct, (3) a foreseeable victim, and (4) affirmative use of authority creating or increasing danger. The court focused on the fourth prong, noting: “The fact that the school exempted some people from the requirement of passing through metal detectors placed Plaintiff in no more danger than if there had been no metal detectors.” Since the plaintiff failed to allege an affirmative act, the claim failed. The plaintiff’s IDEA and Section 504 claims were also dismissed. 
Click here for the full decision.

Montessori Regional Charter School et al. v. Millcreek Township Board of Supervisors, Millcreek Township School District, 2016 WL 4937905 (Pa. Cmwlth. 2016). OPINION NOT REPORTED. Commonwealth Court reversed and remanded this case involving the approval of a subdivision plan. The school district filed an application with the Township Board of Supervisors to divide the vacant Ridgefield Elementary School property, located in a single-family residential zoning district, into three parcels. In its amended subdivision application, the school district described “the proposed use of the property as follows: Lot 1 – present use – school district storage; future proposed use – office space based upon future rezoning request. Lots 2 and 3 – Open Space in accordance with school district facility use policy.” The Township Board of Supervisors approved the application. The charter school and property owners (objectors) appealed to the trial court, arguing that the board erred because the local subdivision and land development ordinance requires a subdivision plan to comply with the local zoning ordinance. The trial court rejected this argument. On appeal, the court reviewed the relevant provisions of the local ordinances and applicable case law, noting that “a governing body reviewing a final land use plan must determine if there are any zoning issues.” Furthermore, if zoning relief is required, “the applicant should apply to the zoning hearing board for such relief prior to seeking approval of a land use plan. Where the applicant does not follow that sequence and there are zoning issues, the governing body may, at most, issue a conditional approval that awaits the applicant first obtaining necessary zoning relief from the zoning hearing board.” Since the proposed use of Lot 1 for “office space” did not comply with the zoning regulations for the R-1 residential district, the court concluded that the board erred in granting final approval of the school district’s subdivision plan.
Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value, but may be cited in legal proceedings for persuasive value.
Editor’s Note: Related decisions were published at 53 SLIE 14 and 53 SLIE 17.
Click here for the full decision.

Schneider v. Commonwealth of Pennsylvania, Public School Employees’ Retirement Board, 2016 WL 3762704 (Pa. Cmwlth. 2016). OPINION NOT REPORTED. Commonwealth Court affirmed an order of the Public School Employees’ Retirement Board which rejected the claimant’s request to purchase service and receive credits for prior out-of-state school service. The claimant taught in Pennsylvania from 1976-1980 and 1993-2011. Prior to retiring in 2011, she submitted two applications to purchase out-of-state service. From 1974-1976, the claimant taught reading full time as a “teacher-intern” at an Ohio high school through the federal Teacher Corps program. The Teacher Corps program consisted of three parts: taking graduate degree courses, performing in-class instruction and performing community service. While in the program, she received a salary similar to that of a first-year teacher; received vacation, holiday and sick days; did not receive a contract, health insurance, or information on the State Teachers’ Retirement System of Ohio; and she was not part of a teacher’s union. In denying the claimant’s request to purchase service, the board analyzed whether the claimant was a school employee within the meaning of the Retirement Code, finding that the claimant’s tenure at the Ohio school was that of a student, not a teacher. On appeal, the court pointed to PSERS’ Business Rule applicable to situations where a claimant was a student at the time of service. Reviewing all of the information, the court agreed with the board’s assessment of the Teacher Corps program and concluded that the board’s interpretation of the Retirement Code through PSERS Business Rule is not clearly erroneous.  
Editor’s Note: Unreported decisions of the Commonwealth Court are not intended to have precedential value, but may be cited in legal proceedings for persuasive value.
Click here for the full decision.

Solanco School District v. C.H.B., 2016 WL 4204129 (E.D. Pa. 2016). The court entered judgment in favor of the school district because the defendants’ claims are time-barred under Section 504. In summer 2003, the parent made an appointment with the school district to have C.H.B. (student), who had been diagnosed with a seizure disorder, enrolled in kindergarten. The parent had the student screened for “full day” kindergarten, informing the screening official about the seizure disorder and possible developmental delays. The student qualified for the “full day” program, but the parent did not complete the enrollment process due to concerns about the student’s seizure disorder and transportation on multiple buses. Up until the parent enrolled the student in a cyber-charter school for ninth grade, the parent retained a non-certified private tutor. The school district did not evaluate the student, inquire into the student’s homeschooling, or initiate truancy proceedings. The parent filed a due process complaint alleging that the school district failed to provide the student a free and appropriate public education (FAPE). The hearing officer concluded that the school district failed to provide a FAPE under Section 504 and awarded compensatory education. On appeal, the school district argued that the defendants’ claims are time-barred under the applicable statute of limitations – that is, the parent did not bring the claim within two years of when the parent knew or should have known about the alleged action that forms the basis of the complaint. The hearing officer applied one of the two exceptions to this rule. Based on the hearing officer’s findings, the parent knew or should have known in August 2003 about the alleged action that forms the basis of the complaint, and therefore, was required to file a due process complaint by August 2005. The parent did not file a complaint until 2014 and neither of the exceptions applied, so the court concluded the claims are time-barred, reversing the hearing officer’s decision.   
Click here for the decision.
Click here for the order.

Coatesville Area Teachers’ Association, PSEA/NEA v. Coatesville Area School District

John M. Skonier Esq., arbitrator
Aug. 15, 2016

     1. Just Cause
     2. Discharge (Immorality)
The arbitrator denied the grievance in this case involving the dismissal of an employee convicted of two DUIs. The grievant, employed as a physics teacher, was arrested on June 20, 2013, for driving under the influence (DUI). On Jan. 25, 2014, the grievant was arrested for a second DUI. On July 21, 2014, the grievant pled guilty to both DUI charges, resulting in incarceration, house arrest, and community service. He failed to notify the school district that he had been convicted of the two DUI charges. The school board subsequently discharged the grievant, charging him with immorality and persistent and willful violation of or failure to comply with school laws of this commonwealth as a result of his conviction, incarceration and failure to notify the district of such incidents. The district argued that grievant’s double conviction for driving while under the influence of alcohol amounts to immorality, noting that his conduct sets a bad example for students and contradicts the message conveyed by the district to the students regarding drinking. The association argued the district lacked just cause to dismiss the grievant, asserting the district failed to show the grievant’s conduct violated school law or district policy. In addressing whether the district had just cause to discharge the grievant, the arbitrator looked to whether the district established the elements for immorality. The two DUI incidents within eight months, for which he served jail time, the testimony from two administrators that grievant’s conduct offended the morals of the community and set a bad example for students in the district, and his failure to appropriately report his convictions to the district supported a conclusion that the grievant’s conduct rose to the level of immorality. Consequently, the arbitrator denied the grievance, finding that the district had just cause to suspend and terminate.
Click here for the full opinion and award.


Pennsylvania School Board Solicitors Association (PSBSA) 

School Law Workshop. The School Law Workshop will be held on Thursday, Oct. 13, 2016, at the Hotel Hershey. For those who were not able to pre-register, we should not have a problem seating you on a walk-in basis if your schedule clears at the last minute and you wish to join us. The full agenda is available here.


In Other News

Portability of Background Checks – On Sept. 27, 2016, PDE sent the following Penn*Link:
As announced in a March 11, 2016, Penn*Link, Governor Tom Wolf has signed Act 4 into law. The law includes important amendments to Section 111 of the School Code concerning background checks that are intended to conform portions of that law with recent changes to the Child Protective Services Law (CPSL). It also allows education administrators to accept criminal history reports obtained for employment purposes from the Department of Human Services (DHS). Such reports can be used for compliance with Section 111 of the PA School Code as long as they are not more than sixty (60) months old. Applicants are also required to complete the form required by Section 111(j)(1) of the School Code (the PDE 6004 form) indicating they have not been disqualified from employment.
      Although portability of background checks was authorized in both the PA School Code and the CPSL, it was necessary to receive guidance from the Federal Bureau of Investigation (FBI) before providing guidance to the field.  According to this guidance it is permissible for a school to accept a copy from an applicant of a Criminal History Record Information (CHRI) report obtained for DHS purposes. DHS has provided all of its entities with written permission that they may accept copies of a CHRI report obtained for PDE purposes.
      To view PDE’s guidance on background checks for employees and the details of the DHS criminal history reports, go to Background Check webpage.
      For additional information, please contact PDE’s School Services Office at 717-783-3750 or via email at
Educational Stability of Students in Foster Care – Federal education law now includes provisions related to students in foster care. The new language is included in 20 U.S.C. § 6311 (State Plans) and 20 U.S.C. § 6312 (Local Educational Agency Plans). Key provisions:
  • Ensuring School Stability: PDE must make assurances in their State Plan that foster youth will remain in their school of origin if determined to be in their best interest.
  • Agency Collaboration: A school district must designate a Point of Contact if the local child welfare agency notifies the school district, in writing, that it has a designated Point of Contact for the school district.
  • Transportation: A school district must collaborate with the local child welfare agency to develop and implement clear written procedures governing how transportation will be provided, arranged, and funded to maintain children in foster care in their school of origin when in their best interest. When additional costs are incurred in providing transportation to the school of origin, school districts will provide transportation if: (1) they are reimbursed by the child welfare agency; (2) the school district agrees to pay the costs; or (3) the school district and the child welfare agency agree to share the costs. NOTE: Transportation plans must be implemented by Dec. 10, 2016.
      You can learn more about these new provisions and what they mean for states, districts, and schools through joint guidance released on June 23, 2016, from the U.S. Departments of Education and Health and Human Services.
      The Pennsylvania Department of Education, in partnership with the Pennsylvania Department of Human Services and the Center for Schools and Communities, will offer an informational webinar on Oct. 26, 2016, from 10-11:30 a.m. concerning transportation to foster care students. Please register for ESSA’s Provisions for Ensuring Educational Stability for Children in Foster Care: Transportation Procedures on Oct. 26, 2016, 10 a.m. at:
      On Aug. 17, 2016, the U.S. Department of Education offered an informational webinar on Ensuring Educational Stability for Children in Foster Care: Education and Child Welfare Points of Contact. The recording is available here.
Education Secretary, Insurance Commissioner Announce ‘Insurance 101’, New Interactive Car Insurance Lesson For High School Students – On Oct. 4, 2016, Education Secretary Pedro Rivera and Insurance Commissioner Teresa Miller today announced a new, interactive lesson for high school students to learn about and better understand car insurance, titled “Insurance 101.” More information is available here.


Let us Know

Got a tip, a link, a correction, a question, a comment, an observation, a clarification, a wisecrack, an idea you’d like to see addressed? We are always glad to hear from you.

Have you changed your email address, mailing address, or phone number? Please let us know.

For questions about this publication, contact Katherine Fitz-Patrick, Tel: (717) 506-2450, ext. 3414

School Board Solicitors Association Officers
    Carl N. Moore Esq., Erie, President   

    Patrick J. Fanelli Esq., Duncansville, President-Elect
    Erin D. Gilsbach Esq., Bethlehem, Secretary
    Kristine Marakovits-Roddick Esq., Bethlehem, Immediate Past President


Legal Services Team:
    Stuart L. Knade, Esq.
    Emily J. Leader, Esq.
    Katherine M. Fitz-Patrick, Esq.
Copyright © 2016 Pennsylvania School Boards Association, All rights reserved.
No claim of copyright to information on other websites or to original U.S. Government Works.
The School Law Information Exchange & Public Sector Arbitration is a biweekly publication of the Pennsylvania School Board Solicitors Association (PSBSA) and the Pennsylvania School Boards Association (PSBA). This publication is distributed to members of the Solicitors Association and administrators who have purchased the comprehensive subscription package. Except for distribution within the school entity or law office, no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or otherwise, without the prior written permission of PSBA. This material cannot be shared with other school entities or law firms. All inquiries about reprint permission should be sent to Katherine Fitz-Patrick, Esq., Deputy General Counsel, Member Services and Editor.

unsubscribe from this list    update subscription preferences