R.B. Sklaroff, M.D. v. Abington SD ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert B. Sklaroff, M.D., :
Appellant :
:
v. : No. 2134 C.D. 2016
: SUBMITTED: July 21, 2017
Abington School District, Raymond :
McGarry, Michelle R. Tinsman, Susan :
D. Arnhold, Daniel Sean Kaye, Marsha :
J. Levell, Tracy Panella, Adam M. :
Share, Joshua Stein, Barry J. Stupine :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: October 16, 2017
Appellant, Robert B. Sklaroff, M.D., acting pro se, appeals from an
order of the Court of Common Pleas of Montgomery County (trial court) sustaining
the preliminary objections of Abington School District and its School Board
(collectively, Abington) and dismissing his second amended complaint with
prejudice. We affirm.
In May 2016, Appellant initiated an action in the trial court alleging
that he was improperly denied sufficient time to speak at the Board’s May 2016
meeting. In his subsequent two-count complaint at issue, Appellant alleged that the
board president violated the Sunshine Act (Act)1 by failing to provide him with an
1
65 Pa. C.S. §§ 701 - 716.
opportunity to speak for twenty minutes on two key issues pertaining to school
affairs: (1) adding a semester of mandated Social Studies during twelfth grade; and
(2) developing a curriculum addressing “Holocaust, Genocide and Human rights
Violations.” June 9, 2016, Second Amended Complaint, ¶¶ 23 and 43; Supplemental
Reproduced Record (S.R.R.) at 79b and 83b. He alleged that the board members
violated the Act by failing to ensure compliance therewith. Id., ¶ 46; S.R.R. at 84b.
Regarding his time allotment, Appellant alleged that, during the citizen
comment segment of the May 2016 meeting, he “rose and (as had also occurred
during the prior month’s meeting) was erroneously told he had only three minutes
to speak.” Id., ¶ 21; S.R.R. at 79b. Approximately six minutes elapsed, however,
before the board president stopped him from speaking. In any event, Appellant
emphasized that no one else rose to speak or expressed a desire to speak on any issue.
Id., ¶ 26; S.R.R. at 80b.
In support of his allegations that he should have been afforded more
time, Appellant included sections from the Board’s policy statement regarding
procedures for board meetings and the time limit for citizen comments.2 In the
2
The quoted segment provides:
Agenda - In the transaction of business, the following order shall be
observed:
...
g. Comments from Citizens (a 40-minute limit on this item with
approximately 20 minutes for comments on the agenda and 20
minutes for comments on any matter regarding school affairs with
allocations established at the discretion of the President).
...
l. Comments of Citizens on Matters Regarding School Affairs,
excluding personnel (a 20-minute time limit on this agenda item. A
citizen will be recognized once and each citizen’s comments will be
limited to three minutes, except at the discretion of the President).
...
2
respective prayers for relief, he requested fines not exceeding $100, plus the costs of
prosecution as set forth in Section 714 of the Act, 65 Pa. C.S. § 714.
In its preliminary objections in the nature of a demurrer, Abington
alleged a failure to state a cause of action in that the Act contains no requirement
that any particular person be afforded a specific amount of time to speak at a school
board meeting. In addition, it alleged that Appellant did not aver that the topics that
he wished to address were on the Board’s May 2016 agenda for deliberation or vote
or were expected to come before it at any time in the foreseeable future. June 8,
2016, Preliminary Objections, ¶ 10; S.R.R. at 54b. The trial court sustained the
preliminary objections and dismissed the complaint without prejudice, concluding
that it did not meet Pennsylvania’s pleading standards for obtaining the relief sought:
imposition of fines against Abington for alleged violations of the Act.
Subsequent to Appellant’s appeal, Abington filed an application to
quash Appellant’s appeal therein alleging that the trial court’s order was not a final
order subject to appeal. See, e.g., Mier v. Stewart, 683 A.2d 930 (Pa. Super. 1996)
(holding that, generally, an order sustaining preliminary objections without
prejudice is not a final order for appeal purposes). After granting the application in
May 2017, we subsequently reinstated the above appeal in June 2017 based on
Appellant’s provision of a copy of the trial court’s docket entries indicating entry of
15. If any member is aggrieved by a decision of the chair, the
member shall have the privilege to appeal to the Board and the vote
on such appeal shall be taken without debate.
June 9, 2016, Second Amended Complaint, ¶ 7; S.R.R. at 76b (emphasis in original).
3
a praecipe to dismiss with prejudice. With a final order in place, we turn to
Appellant’s appeal.3
By including language from the “public participation” provision of the
Act in his complaint, Appellant implicitly averred that Abington violated that
provision. In pertinent part, it provides: “[T]he board . . . of a political subdivision
. . . shall provide a reasonable opportunity at each advertised regular meeting . . . to
comment on matters of concern, official action or deliberation which are or may be
before the board . . . prior to taking official action.” Section 710.1(a) of the Act, 65
Pa. C.S. § 710.1(a). In that vein, Appellant pled:
24. Plaintiff viewed both issues as being “matters of
concern, official action and/or deliberation which had
been and are anticipated to be before the board prior to
taking official action” but, because the Administration was
not updating Plaintiff [and, indeed, was also refusing to
schedule any type of follow-up meeting or dialogue], it
was not possible to discern when such action might occur.
June 9, 2016, Second Amended Complaint, ¶ 24; S.R.R. at 80b. Mindful of the
foregoing, we turn to Appellant’s arguments in support of his position that he stated
material facts legally sufficient to state a claim for relief under the Act.
Appellant argues that he stated a claim for relief because Abington’s
alleged violation of its policy statement limiting citizen comments was tantamount
to a violation of the Act. As he stated: “[Abington’s] local Agenda-rules,
promulgated for explicit application during Board meetings, function consequent to
3
Our standard of review is plenary as the appellate court considering whether preliminary
objections in the nature of a demurrer were properly sustained. Mazur v. Trinity Area Sch. Dist.,
961 A.2d 96, 101 (Pa. 2008). We may affirm a grant of preliminary objections only when, based
on the facts pled, it is clear and free from doubt that the plaintiff will be unable to prove facts
legally sufficient to establish a right to relief. Id. For purposes of evaluating the legal sufficiency
of the challenged pleading, we must accept as true all well-pled, material and relevant facts alleged
in the complaint and every inference that is fairly deducible from those facts. Id.
4
the Sunshine Law, the statutory remedies of which are explicitly applicable because
[Abington’s] local Agenda-rules have been admittedly violated.” Appellant’s Brief
at 22. Appellant’s position is without merit.
Appellant’s statement regarding the interplay between the Act and the
policy statement is a legal conclusion that will not be deemed admitted. Baravordeh
v. Borough Council of Prospect Park, 706 A.2d 362, 366-67 (Pa. Cmwlth. 1998).
Moreover, even if it were true that the Board violated its own policy statement,
which cannot necessarily be inferred from the facts pled, such a conclusion would
not state a cause of action for violation of the Act. As the trial court noted, this Court
in Baravordeh held that, although the denial of a right to speak before a board at an
advertised regular meeting may give rise to a cause of action under the Act, limiting
comments is not violative thereof as long as a person is afforded a reasonable
opportunity to comment on matters of concern. Id. at 366. See also Alekseev v. City
Council of the City of Phila., 976 A.2d 1253, 1257 (Pa. Cmwlth. 2009), rev’d on
other grounds, 8 A.3d 311 (Pa. 2010), (holding that, imposing subject-matter
limitations on public comments is patently reasonable and in no way violates the
Act).
Here, Appellant pled that he was afforded approximately six minutes to
speak on topics that he averred were neither on the agenda nor anticipated to be
thereon in the near future. In that regard, he alleged in great detail why the Board
should consider these topics and why he was frustrated by its failure to do so.4
Accordingly, there is no indication under the facts as pled that the “public
participation” provision of the Act, which prescribes only a reasonable opportunity
4
To the extent that Appellant concentrates on the alleged deficits in Abington’s curriculum,
his focus is misplaced. The focus here is necessarily on whether he pled facts sufficient to establish
a right to relief under the Act, not whether Abington should consider revising its curriculum.
5
to comment, was violated. See also Section 710 of the Act, providing, in relevant
part: “Nothing in this chapter shall prohibit the agency from adopting by official
action the rules and regulations necessary for the conduct of its meetings and the
maintenance of order.” 65 Pa. C.S. § 710.
Appellant also maintains that he pled facts sufficient to establish a claim
for relief under the Act because he viewed the issues that he wished to discuss as
falling within Section 710.1(a) of the Act, which he averred in the above-quoted
paragraph 24 of his complaint. This averment, however, constitutes a legal
conclusion and/or an expression of opinion, which will not be deemed admitted.
Baravordeh, 706 A.2d at 366. Accordingly, the facts as pled are not legally
sufficient to establish a right to relief under a statutory provision providing only that
a person be provided a reasonable opportunity at each advertised regular meeting to
comment on matters of concern, official action or deliberation which are or may be
before the board.
For the above reasons, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert B. Sklaroff, M.D., :
Appellant :
:
v. : No. 2134 C.D. 2016
:
Abington School District, Raymond :
McGarry, Michelle R. Tinsman, Susan :
D. Arnhold, Daniel Sean Kaye, Marsha :
J. Levell, Tracy Panella, Adam M. :
Share, Joshua Stein, Barry J. Stupine :
ORDER
AND NOW, this 16th day of October, 2017, the order of the Court of
Common Pleas of Montgomery County is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge