School Law Information Exchange & Public Sector Arbitration – Information you need to keep you up to speed on the issues facing public education.
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Vol. 53, No. 13

B.D. v. Downingtown Area School District, 2016 WL 3405460 (E.D. Pa. 2016).

     State-Created Danger
     Political Subdivision Tort Claims Act • Real Property Exception

The court denied defendants’ motion to dismiss in this case involving an injured student athlete.
      Due to inclement weather, the track team held practice indoors, which was typical when the weather was not suitable for outdoor practice. The track coaches had the middle-distance runners and the sprinters separated, running courses through various hallways. Midway through the practice, without notifying the student athletes, the coaches altered the courses, and the sprinters’ new course intersected with the middle-distance runners’ course. The coaches instructed the student athletes to run in the manner indicated by them. After the modification, there were several “small collisions and/or near misses,” which the coaches knew about. B.D., a sophomore, middle-distance runner collided head-to-head with a sprinter at a blind intersection. B.D. may have also struck his head on the concrete floor. He suffered a depressed skull fracture and bi-frontal brain contusions.
      B.D., through his parents, sued the district and the coaches, claiming a deprivation of his right to bodily integrity, municipal liability and negligence.
      The plaintiffs’ asserted their claim alleging a deprivation of B.D.’s right to bodily integrity under the state-created danger theory. “In order to state a viable claim under the state-created danger theory, a plaintiff must show the following: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the [harm] to occur.”
      With regard to the first element, foreseeability and the directness of harm, the court found that “there is little attenuation between the alleged misconduct and the harm caused, as the potential harm one would expect to occur due to the creation of intersecting running paths – a collision between two runners – was exactly the type of harm which occurred.” With regard to the intent/culpability element, the court found that the amended complaint sufficiently alleged that “the Coaches were deliberately indifferent towards the serious risk of two runners colliding with a risk of substantial harm.” The requisite relationship existed to satisfy the third element. Turning to the fourth element, affirmative use of authority, the court found that “the Coaches’ design of the course and alleged instruction to the runners to run in such a fashion satisfies the fourth element in this case.” Thus, plaintiffs satisfied all four elements of a state-created danger claim, and the court denied the defendants’ motion to dismiss plaintiffs’ § 1983 claim for deprivation of B.D.’s right to bodily integrity.
      The Political Subdivision Tort Claims Act (PSTCA) generally provides that a school district cannot be held liable for damages stemming from an injury to a person caused by an action of the district or its employees with certain exceptions. The plaintiffs claim this case falls within one such exception, the real property exception. The court found that the “manner in which the coaches ran track practice cannot serve to bring the claims within the real property exception,” but the claims that relate directly to: the “failure to properly maintain the property with mirrors and signs that would allow for the execution of safe, indoor track practices” and the flooring of the hallways sufficiently bring the claims within the real property exception. Consequently, the court concluded the plaintiffs have plausibly stated a claim, at this stage, which falls within the real property exception to the PSTCA.
      The plaintiffs’ claim for municipal liability survived the motion to dismiss stage as well.
Click here for the full decision.


In Short

Brentwood Borough School Dist. v. Held, 2016 WL 3388407 (Pa. 2016). In this case involving the issue of when a property is “vacant” for purposes of redeeming property under Section 32(c) of the Pennsylvania Municipal Claims and Tax Liens Act, the Pennsylvania Supreme Court affirmed the order of the Commonwealth Court without opinion. Both concurring statements explained and emphasized how the per curiam affirmance should be interpreted.
Editor’s Note: The Commonwealth Court’s decision was published at 52 SLIE 7.
Click here for the Per Curiam Order.
Click here for the Concurring Statement (J. Dougherty).
Click here for the Concurring Statement (J. Wecht).


American Federation of State, County and Municipal Employees, District Council 89 v. School District of Lancaster

Lynne M. Mountz, arbitrator
May 26, 2016

     1. Subcontracting Bargaining Unit Work

The arbitrator denied the grievance in this dispute involving subcontracting. The collective bargaining agreement (CBA) included a provision that permitted the district to subcontract bargaining unit work if certain enumerated criteria were met. In accordance with the CBA, the district notified the union that it planned to subcontract the custodial and groundskeeping services. In the interim, the parties reached an agreement, and the district agreed that it would not outsource the bargaining unit work during the agreed to time period. After the time period passed and a new CBA took effect, the district advised the union that it was considering outsourcing, and asked the previously selected vendor to update its proposal. The district ultimately subcontracted the custodial services. The union filed a grievance, arguing that the district failed to comply with the enumerated criteria, which required that the district: “demonstrate that the projected contracted services would be similar or superior to what was being supplied by the District’s employees, but at a lesser cost to the District,” and provide the union “with all documentation relative to the contracted services, including all costing and other data.” The arbitrator concluded that the district met both requirements, noting that the district: demonstrated that its contract with the vendor would result in the “same or improved operation efficiency,” and provided sufficient documentation and information to meet the contractual mandate.
Click here for the full opinion and award.


Manheim Central Education Association v. Manheim Central School District

William E. Caldwell, arbitrator
Dec. 30, 2015
  1. Disability Benefits
The arbitrator concluded that the district did not violate the collective bargaining agreement (CBA) in this dispute involving disability benefits. The dispute relates to the interpretation of a section in the CBA providing income protection, specifically, the words, “paying 100% of benefits for employees.” The dispute arose after the district told a member of the bargaining unit that she would have to pay for her insurance benefits when she transitioned from sick leave to disability income protection benefits. The association argued that while members of the bargaining unit are receiving income protection benefits, the district is required to pay 100% of all benefits. The district argued that the provision in question only speaks to the district’s obligation to pay for employee’s income replacement during long-term disability leave and it has a long history to support this interpretation. The arbitrator concluded that the language refers only to the benefit found in that section, income replacement, and does not refer to or require the payment for other benefits. In reaching this conclusion, the arbitrator noted that it appears there has been a past practice of only paying for benefits during Family Medical Leave Act (FMLA) leave and not while an employee is receiving income replacement payments; moreover, after the change to the language in 1998 (when the language went from 100% of the coverage to 100% of benefits), the association took no credit for bargaining any new benefit and was apparently not aware of the potential benefit or how the benefit was implemented.
Click here for the full opinion and award.

The Public Sector Arbitration publication is not possible without the efforts of solicitors and superintendents who send us new arbitration decisions. PSBA would like to thank those individuals who have contributed arbitration decisions. If you would like to make such a contribution, please send a scanned copy of the decision to or mail a hard copy to PSBA, Attn: Katherine Fitz-Patrick, 400 Bent Creek Blvd., Mechanicsburg, PA 17050-1873.

Pennsylvania School Board Solicitors Association

School Solicitors Symposium, July 14-15, 2016, Nittany Lion Inn, State College, PA – Plan now to be at the 2016 School Solicitors Symposium, presented by PSBA and Pennsylvania School Board Solicitors Association. Get up to speed on recent developments in school law, anticipated trends public school clients are likely to be dealing with soon and valuable strategies that can help school boards stretch scarce resources. Get ahead of the learning curve on cutting-edge issues likely to confront your school clients in the near future! For more details and registration, click here.


In Other News

Ensuring Educational Stability for Children in Foster Care – On June 23, 2016, the U.S. Departments of Education and Health and Human Services released non-regulatory guidance on the new provisions in the Every Student Succeeds Act (ESSA) that promote educational stability for children in foster care, which take effect on Dec. 16, 2016. Links to the guidance and the Dear Colleague Letters issued with the guidance are available below:  
Audio Recording on School Buses and School Vehicles – For school entities who use audio and video recording on school buses and school vehicles, Senate Bill 1077 (Act 56 of 2016), removes the requirement to annually inform parents/guardians and students by letter mailed to the students’ home address of the policy authorizing video and audio recording on school buses and school vehicles. Instead, the school entity must include the policy in student handbooks and other publications that set forth the comprehensive rules, procedures and standards of conduct for the school entity. The school entity must also post a notice of the policy on their website.
Settlements Reached in Seven States, One Territory to Ensure Website Accessibility for People with Disabilities – On June 29, 2016, the U.S. Department of Education’s Office for Civil Rights “announced that it has reached settlements with education organizations in seven states and one territory to ensure website accessibility for people with disabilities.” More information is available here.

Mark Your Calendars

July 14-15, 2016 – Solicitors Symposium, State College, PA
Thursday, Oct. 13, 2016 – School Law Workshop, Hershey, PA

Let us Know

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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.

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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, Deputy General Counsel, Member Services and Editor.

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