Opinion
No. 995 C.D. 2014
02-20-2015
Timothy L. Salvatore, Appellant v. Dallastown Area School District
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
This appeal involves a dispute as to whether a school district must provide transportation to more than one residence within a school district for resident pupils who maintain more than one residence within that school district. Specifically, Timothy L. Salvatore (Father) a father with joint custody of his two children, appeals from an order of the Court of Common Pleas of York County (trial court) that denied his motion for summary judgment and granted the cross-motion for summary judgment of Dallastown Area School District (District) because his challenge to the District's transportation policy was moot. The trial court held the action was moot because, while the case was pending, the District revised its transportation policy, permitting exceptions. Upon review, we vacate and remand to the trial court for disposition on the merits of Father's declaratory judgment claim.
I. Background
The District provides transportation services to resident pupils pursuant to Section 1361 of the Public School Code of 1949 (School Code).
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §13-1361.
Father shares joint physical custody of his two children (Minors) with their natural mother. Pursuant to the custody order, Minors spend alternating weeks with Father and then with their mother at their separate residences. Both Father and the mother reside in the District. One of the children attends a middle school, and the other attends a high school. Both schools are located more than three miles away from the parents' residences, a threshold distance for transportation.
The District's general transportation policy, Policy No. 810 (Policy) provides for transportation for students in accordance with Section 1361 of the School Code. See Reproduced Record (R.R.) at 70a-74a, Stipulation, Ex. 3. At the beginning of the 2011-2012 school year, the District imposed the "Transportation Protocol" (Protocol). The Protocol was not formalized as a policy. The Protocol limited the number of stops per child to one stop in the morning and one stop in the afternoon. Specifically, the Protocol states, "[e]ffective with the start of the 2011-12 school year, we will only allow students to be assigned to one AM bus and one PM bus for the duration of the school year." See R.R. at 68a, Stipulation, Ex. 2. The District published the Protocol on its website.
During the 2010-2011 and 2011-2012 school years, Minors rode the school buses on a rotating weekly basis to and from their mother's residence, and to and from Father's residence without incident. Although then in effect, the Protocol did not alter Minors' bus transportation during the 2011-2012 school year.
During the 2012-2013 school year, Minors received transportation to and from their mother's residence. However, the District did not provide transportation for Minors to and from Father's residence during the alternating weeks when he had physical custody. Effective September 17, 2012, the District prohibited Minors from using bus transportation to or from Father's residence. As a result, Father needed to provide private transportation for Minors. Thus, the Protocol operated in such a way that the District only recognized one residence for Minors.
Consequently, Father sought an exemption from the Protocol for Minors, as well as repeal of the Protocol. The District refused his requests.
In December 2012, Father filed a complaint seeking declaratory, injunctive and mandamus relief regarding the District's transportation policy. Essentially, Father alleged that limiting each student to one bus stop in the mornings and afternoons violated the District's statutory duty to provide transportation to resident pupils.
Before the start of the 2013-2014 school year, while litigation was pending, the District promulgated Administrative Regulation No. 810-AR, entitled "Bus Stops" (Current Policy). The Current Policy allows parents who reside in the District to obtain bus transportation to and from multiple residences, provided the parents apply for such transportation, meet certain criteria and receive approval. Specifically, the Current Policy provides, in pertinent part:
Students eligible for bus transportation may be assigned only one (1) a.m. and one (1) p.m. bus stop. The school bus will pick up and drop off students only at the assigned bus stop(s). Students may not ride a bus other than the one (1) s/he has been assigned to or to get off or on the bus at a stop(s) other than the student's assigned stop(s).See R.R. at 80a-81a, Stipulation, Ex. 6 (emphasis added). Parents are required to submit a form requesting the bus stop each year. The Current Policy expressly states that "[b]us stop changes do not renew." Id. (emphasis added).
***
Criteria for an exception to this regulation may be considered under the following circumstances:
• The parents of the student do not reside together but both reside in the district.
• There is in place a current court-approved custody order or an agreement between the parents (which has been signed by both of them and notarized) granting shared physical custody.
• The custody arrangement shall provide that the student will dwell at a parent's home on Monday through Friday for a given week, during the school year.
• The scheduled bus stops must be consistent. Only consistent alternating week Monday-Friday arrangements will be honored.
• A change of bus stop for K-3 elementary students must be in the attendance boundary for the K-3 elementary school that the student is attending.
Further, the Current Policy states that a decision regarding "a request for this privilege" is based on the following criteria:
• There must be space available on the bus.Id. (emphasis added). In addition, the Current Policy specifies that "[t]he district has no obligation to provide this exception and reserves the right to revoke this [Current Policy] at any time, in its sole discretion." Id. (emphasis added). In essence, the District reserves the right to deny transportation to and from more than one residence in the District.
• Requests will be evaluated in the order in which they are received.
• Such students may not continue to ride the bus if other students who are eligible for transportation (moving in the school district) are assigned to the bus causing the bus to reach its rated capacity.
• The bus stop must be on an established bus route (i.e., new routes and bus stops shall not be created).
• No requests for bus stop changes shall be granted if they would cause the district to incur additional expenses.
• The Superintendent or his/her designee may add criteria or provisions under this regulation at any time.
To streamline the litigation, the parties stipulated to the pertinent facts. See R.R. at 41a-52a (Stipulation). There is no dispute that the District denied transportation to Minors in the past, and that the District retains the power to withdraw its transportation in the future by rescinding the exceptions set forth in the Current Policy. Prior to implementation of the Current Policy, the District received and denied numerous requests for exemptions from the Protocol for divorced and separated parents. See R.R. at 46a, Stipulation at ¶34. The District did not indicate any plan to revoke the Current Policy, and has granted all proper exception requests that it received. Id. at 49a, Stipulation at ¶¶42-43.
The parties also stipulated to the filing of an amended answer and new matter to account for the Current Policy issued while the litigation was pending. As described by the District, the Current Policy "provides the criteria for an exception' to the [District's] transportation protocol." See R.R. at 98a, Am. New Matter at ¶114. Father filed a reply to the new matter in which he iterated the District's transportation policy continues to be contrary to law and an abuse of discretion.
Based on the stipulated facts, the parties filed cross-motions for summary judgment. At about this time, this Court decided Watts v. Manheim Township School District, 84 A.3d 378 (Pa. Cmwlth. 2014), appeal granted, 99 A.3d 532 (Pa. 2014) (districts electing to provide transportation must transport students who have more than one residence under a shared custody arrangement to each residence within that district).
In his motion for summary judgment, Father argued he had a clear right to relief because the District was not providing bus transportation to Minors in accordance with its mandatory duty under the School Code. In response, the District argued the case was moot because Minors received transportation to and from both parents' residences pursuant to the exceptions in the Current Policy. Both parties referenced the recent decision in Watts. The trial court heard oral argument and received briefs on the motions.
Ultimately, the trial court determined the matter was mooted by the Current Policy. After acknowledging the exceptions to mootness, the trial court reasoned that none of them applied. The trial court found that the policy Father challenged was repealed, explaining it could not evaluate "a non-existing provision." Tr. Ct., Slip Op., 5/16/14, at 7. The trial court continued, "courts have declined to invoke the public importance exception to the mootness doctrine in testing the validity of a former statutory scheme." Id. (emphasis added). Accordingly, the trial court granted the District's cross-motion for summary judgment.
This appeal by Father followed.
II. Discussion
Father's complaint consisted of three counts: mandamus (Count I); injunctive relief (Count II); and, declaratory judgment (Count III). Father's claims sounding in mandamus and injunctive relief sought orders compelling transportation for Minors to and from both residences in the District. Because that transportation is currently provided, Father abandoned these claims. Appellant's Br. at 3 n.1. As to the declaratory judgment claim, Father seeks a declaration that the District's transportation policy "is contrary to law, contrary to public policy, and/or an abuse of discretion." R.R. at 15a (Compl. at ¶88).
Father asserts the change in the District's transportation policy and provision of transportation to Minors during the 2013-2014 school year does not moot his declaratory judgment claim. He maintains the Current Policy remains contrary to law because it limits resident pupils to one bus stop unless parents file for an exception, rendering the provision of transportation discretionary. Further, he argues the trial court erred in failing to address the merits under an exception to the mootness doctrine. In support, he contends Minors are subject to denial of transportation in the future, and the effect of school transportation policy on the shared custody of children is a matter of public importance.
The District responds that the provision of transportation to Minors under the Current Policy remedied Father's declaratory judgment claim. The District asserts the trial court properly granted its motion for summary judgment because the matter became moot once the District revised its policy. In addition, the District asserts none of the exceptions to the mootness doctrine apply.
A. Summary Judgment
Our review of the grant of a motion for summary judgment is limited to determining whether the trial court committed an error of law or a manifest abuse of discretion. Mandakis v. Borough of Matamoras, 74 A.3d 301 (Pa. Cmwlth. 2013). "[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that a moving party is entitled to judgment as a matter of law." Barrel of Monkeys, LLC v. Allegheny Cnty., 39 A.3d 559 (Pa. Cmwlth. 2012).
Motions for summary judgment are appropriate under the Declaratory Judgments Act, 42 Pa. C.S. §7531-7541. See Borough of Pitcairn v. Westwood, 848 A.2d 158 (Pa. Cmwlth. 2004). In determining whether the trial court erred as a matter of law, or abused its discretion, we "examine the record in the light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party." Thornton v. Phila. Hous. Auth., 4 A.3d 1143, 1148 (Pa. Cmwlth. 2010) (citing Strine v. Com. of Pa. MCARE Fund, 894 A.2d 733 (Pa. 2006)).
Because the parties stipulated to the material facts and both parties submitted motions for summary judgment in their favor, this case presents a pure question of law. Accordingly, we consider whether the declaratory judgment claim is mooted by the Current Policy such that summary judgment in the District's favor was proper on that basis. In determining this issue, we evaluate the mootness doctrine and whether one of the exceptions to the doctrine applies.
B. Mootness
A case is not moot when there is an actual case or controversy for a court to decide. Pap's A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002). A qualifying case requires a legal controversy that: (1) is real and not hypothetical; (2) affects a party "in a concrete manner so as to provide the factual predicate for a reasoned adjudication[;] and, (3) ... [is] with sufficiently adverse parties so as to sharpen the issues for judicial resolution." Clinkscale v. Dep't of Pub. Welfare, 101 A.3d 137, 139 (Pa. Cmwlth. 2014). The parties must continue to have a "personal stake in the outcome" at all stages of the lawsuit. Id. An action may become moot during the pendency of an action due to an intervening change in the facts of the case or in applicable law. In re Gross, 382 A.2d 116 (Pa. 1978) (new legislation altered challenged statute); Commonwealth v. Packer Twp., 60 A.3d 189 (Pa. Cmwlth. 2012) (repeal of challenged ordinance mooted declaratory judgment and injunction claims).
This Court previously stated that "[a] declaratory judgment may be obtained only where there is a real controversy Mazur v. Washington Cnty. Redev. Auth., 954 A.2d 50, 52-53 (Pa. Cmwlth. 2008). Further, "[i]t is well established that declaratory judgment relief requires the presence of antagonistic claims indicating imminent and inevitable litigation coupled with a clear manifestation that the declaration will be of practical help in ending the controversy." Citizen Police Review Bd. of Pittsburgh v. Murphy, 819 A.2d 1216, 1222 (Pa. Cmwlth. 2003) (quotation omitted).
The trial court determined Father's declaratory judgment claim was moot because "[t]he transportation policy that [Father] challenges has been repealed by 810-AR [Current Policy]." Tr. Ct., Slip. Op. at 7. Reasoning that the challenged policy was repealed, the trial court stated "this Court cannot review a non-existing provision." Id. We disagree with the trial court's conclusion of repeal.
Significantly, Father does not limit his declaratory judgment claim to the Protocol. In substance, he challenges the District's transportation policy "to the effect that each student is allowed to ride one bus to school and one bus home from school." R.R. at 5a, Compl. at ¶36. Although the District changed its terminology, this conduct remains in place under the Current Policy.
The premise of the Protocol and of the Current Policy is that a resident pupil is entitled to transportation to and from only one residence in the District. Under the Current Policy, the District has "no obligation" to provide anything more, but a parent may seek the non-recurring "privilege" of transportation to and from another residence at the "sole discretion" of the District. R.R. at 81a. Thus, the Current Policy effectively creates two classes of resident pupils: those with only one District residence, to whom an obligation of transportation is due; and those with more than one District residence, to whom a mixed obligation/discretionary privilege of transportation is due. The District thus distinguishes between these classes in terms of fulfilling its transportation mandate.
The material difference between the prior Protocol and the Current Policy is that the Current Policy created an exception process. Under this process the District may, in its sole discretion, allow transportation to and from an additional residence. Consequently, the Current Policy is less repeal and more reenactment of the one-residence rule of the prior Protocol. Stuckley v. Zoning Hearing Bd. of Newtown Twp., 79 A.3d 510 (Pa. 2013) (when repealed ordinance was reenacted in substantially the same form, dispute was not mooted by new ordinance).
Under these circumstances, Father asserts his challenge to the District's transportation policy remains viable. To the extent that the District retains complete discretion whether to provide transportation to more than one residence (as opposed to discretion regarding how to provide the transportation), we agree.
In Watts, we held that resident pupils may be entitled to transportation to and from more than one residence when the residences are located in the same district. Insofar as the District treats transportation of certain resident pupils as discretionary rather than mandatory, the treatment is arguably contrary to the holding in Watts and to Section 1361 of the School Code.
The one-residence premise of the District's transportation practices continues to apply. Therefore, an actual controversy exists. See Dillon v. City of Erie, 83 A.3d 467 (Pa. Cmwlth. 2014) (holding injunction action not mooted because firearm owner continued to be subject to ordinance and prosecution for violation). As a result, a court has the ability to issue a meaningful order that will have practical effect. Burke ex rel. Burke v. Indep. Blue Cross, ___ A.3d ___, (Pa., No. 31 EAP 2013, filed Oct. 31, 2014), 2014 WL 5545193 (holding issue in injunction and declaratory relief case was not moot). The trial court erred in failing to so conclude.
The District contends declaratory relief would not be appropriate because it granted exceptions, and any discontinuation of transportation services is speculative. However, we recognize that voluntary cessation of allegedly unlawful conduct does not moot a case because such a situation would allow the party acting wrongly to revert, upon dismissal of the proceedings, to the offensive pattern of conduct. Reichley v. N. Penn Sch. Dist., 537 A.2d 391 (Pa. Cmwlth. 1988) (holding parents' action seeking declaration of the illegality of teachers' strike was of significant dimension and is capable of repetition, so case was not moot); see also Tamagno v. Waiters & Waitresses Union, Local No. 301, 96 A.2d 145, 147 (Pa. 1953) ("the mere fact that an illegal practice has been abandoned does not necessarily cause a controversy to become moot.").
We hold it is not impossible to grant the requested declaratory relief by declaring the one-residence rule in violation of Watts and the mandatory duty to provide transportation pursuant to Section 1361 of the School Code. Nevertheless, anticipating further review of the issue, we also consider exceptions to the mootness doctrine.
C. Exceptions to Mootness
Generally, this Court will not decide moot questions. Chruby v. Dep't of Corr., 4 A.3d 764 (Pa. Cmwlth. 2010). However, even if the matter before us were moot, review is not precluded. "Exceptions to this principle are made where (1) the conduct complained of is capable of repetition yet likely to evade review, (2) the case involves issues important to the public interest, or (3) a party will suffer some detriment without the court's decision." Id. at 771 (citing Sierra Club v. Pa. Pub. Util. Comm'n, 702 A.2d 1131 (Pa. Cmwlth. 1997), aff'd, 731 A.2d 133 (Pa. 1999)); Musheno v. Dep't of Pub. Welfare, 829 A.2d 1228 (Pa. Cmwlth. 2003) (reversing agency determination of mootness and remanding to decide merits). Exceptions to the mootness doctrine are rarely invoked. Benoff v. Zoning Bd. of Adjustment, 528 A.2d 705 (Pa. Cmwlth. 1987). However, appellate courts apply these exceptions when warranted by the circumstances. See Lewis v. Monroe Cnty., 737 A.2d 843 (Pa. Cmwlth. 1999).
Father asserts his action falls under the first two exceptions, that the matter is both capable of repetition, and involves a matter of public importance.
1. Capable of repetition
Conduct qualifies for the "capable of repetition, yet evading review" exception when the challenged action may not be fully litigated before its cessation, and there is a "reasonable expectation that the same complaining party will be subjected to the same action again." Ass'n of Pa. State College & Univ. Faculties v. Pa. Labor Relations Bd., 8 A.3d 300, 305 n.6 (Pa. 2010) (citations omitted).
The application of the one-residence rule is capable of repetition. Parents must re-apply for transportation exceptions annually. The exceptions do not automatically renew. Further, the District reserved the discretion to deny any exception application, regardless of whether the applicant met all the stated criteria. The expectation of repetition amounts to more than speculation because the District revoked transportation to and from Father's residence in the past.
Further, application of the one-residence rule may evade review. As can be discerned by the timeline of this litigation, which began in 2012, final judgment on a challenge to the one-residence rule may take more than a school year. At that point, new requests for exceptions must be made. In addition, the Current Policy provides that the District reserves the right to change or rescind the Current Policy at any time. Indeed, the trial court determined that a changed transportation policy evaded review. Thus, we conclude this exception to the mootness doctrine applies.
2. Public policy
Appellate courts also review matters of public importance despite technical mootness of the issue. See Dep't of Envtl. Prot. v. Cromwell Twp., Huntington Cnty., 32 A.3d 639 (Pa. 2011). Although rarely invoked, both this Court and our Supreme Court applied the public importance exception to permit review in a number of cases. See, e.g., Jersey Shore Area Sch. Dist. v. Jersey Shore Educ. Ass'n, 548 A.2d 1202 (Pa. 1988) (involving legality of teachers' strike); Lutz v. Tanglewood Lakes Cmty. Ass'n, Inc., 866 A.2d 471 (Pa. Cmwlth. 2005) (implicating future governance of nonprofit corporations); In re General Election, November 8, 1988, 560 A.2d 260 (Pa. Cmwlth. 1989) (involving over 4,700 voters who failed to mail registration applications before deadline); Mifflin Cnty. Sch. Dist. v. Stewart, 503 A.2d 1012 (Pa. Cmwlth. 1986) (involving issue of whether expelled student had property right to attend graduation ceremony).
Compliance with the transportation duty under the School Code, as interpreted by this Court in Watts, is of similar public importance. Likewise, the extent of the statutory right to transportation under the School Code is an important question.
Moreover, the legal question involved, whether a resident pupil is entitled to transportation to and from more than one residence in a school district, could affect families and school districts across the Commonwealth. Realizing the broad impact of the issue, our Supreme Court accepted review of Watts. Under these circumstances, the public importance exception applies, and the declaratory judgment claim should therefore be decided on its merits.
Our Supreme Court granted review on the following issues:
(1) Does the [School Code] require the Manheim Township School District to provide transportation to a resident pupil to and from more than one location within the school district?
(2) Did the Commonwealth Court err in interpreting In re Residence Hearing Before Bd. of Sch. Dir., Cumberland Valley Sch. Dist., 744 A.2d 1272 (Pa. 2000), to mean that a child can have more than one residence for school purposes, including transportation services under Section 1361 of the [School Code]?
III. Conclusion
We conclude the declaratory judgment claim constitutes an actual controversy that may be decided on its merits. To the extent it was deemed moot, the trial court erred in holding that an exception to the mootness doctrine did not apply. For the foregoing reasons, the trial court's order is vacated, and the matter is remanded to the trial court to consider the merits of the declaratory judgment action in accordance with the foregoing opinion.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 20th day of February, 2015, the order of the Court of Common Pleas of York County is hereby VACATED, and the matter is REMANDED for disposition on the merits in accordance with the foregoing opinion.
Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge
Watts v. Manheim Twp. Sch. Dist. (Pa., No. 191 MAL 2014, filed September 12, 2014) (order).