J.T. Bollinger v. SD of Cheltenham Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James T. Bollinger, :
Appellant :
:
v. : No. 2031 C.D. 2016
: Argued: October 19, 2017
School District of Cheltenham :
Township, Natalie Thomas, :
Ph.D., Lynn David and :
Dwight E. Nolt :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: December 7, 2017
James T. Bollinger appeals an order of the Court of Common Pleas of
Montgomery County (trial court), which agreed with the Board of School Directors
of Cheltenham School District that Bollinger was not entitled to an administrative
hearing on the termination of his contract as the junior varsity (JV) soccer coach.
The School District so held because Bollinger received all the compensation
authorized in his contract notwithstanding his discharge. Bollinger argues that the
trial court erred. He contends that he was entitled to a hearing under the Public
School Code of 19491 (School Code) and, further, the School District’s stated reason
for his discharge, i.e., that he did not report a student hazing incident, lacks merit.
In its Pennsylvania Rule of Appellate Procedure 1925(a)2 opinion, the trial court
1
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101 – 27-2702.
2
It provides, in pertinent part, that
observed that its order concerned only one count of Bollinger’s six-count3 complaint
against numerous defendants. As such, the trial court concluded that its order was
not appealable under Pennsylvania Rule of Appellate Procedure 341(b)(1) (defining
a “final order” as one that “disposes of all claims and of all parties”). Agreeing with
the trial court, we quash Bollinger’s appeal.
On August 17, 2014, Bollinger signed a one-year contract with the
School District to coach the boys’ high school JV soccer team. The contract
provided compensation in the amount of $4,620.
On September 19, 2014, Bollinger was supervising the JV and varsity
teams on a school bus while being transported back to the high school after their
games. Several varsity players lifted a JV player (Student “J”) by his underwear, a
stunt known as receiving a “wedgie.” They also shook Student J causing his
underwear to rip, which is called being “ripped.” Because Bollinger neither
investigated nor reported the incident, the School District discharged Bollinger
before completion of his contract. Nevertheless, the School District paid Bollinger
the full compensation of $4,620.
On February 26, 2015, Bollinger filed a complaint against the School
District for defamation and breach of contract. On April 28, 2015, Bollinger
amended the complaint to add as defendants Natalie Thomas, Lynn David and
Dwight E. Nolt, who work for the School District in various administrative
upon receipt of the notice of appeal, the judge who entered the order giving rise to
the notice of appeal, if the reasons for the order do not already appear of record,
shall forthwith file of record at least a brief opinion of the reasons for the order, or
for the rulings or other errors complained of, or shall specify in writing the place in
the record where such reasons may be found.
PA. R.A.P. 1925(a)(1).
3
Bollinger’s amended complaint lists five counts, but Count IV is listed twice.
2
positions.4 The amended complaint dropped the breach of contract claim against the
School District and added several new counts. With these amendments, the pleading
presented six counts: Count I asserted a defamation claim against Lynn David for
suspending Bollinger pending an investigation. Count II asserted a defamation claim
against Dwight Nolt for prohibiting Bollinger from attending high school games.
Count III asserted a defamation claim against Lynn David for charging Bollinger
with condoning a hazing incident by students. Count IV asserted a defamation claim
against Natalie Thomas for implying at a public meeting that Bollinger had not
handled the school bus incident appropriately.5 Count IV, which is listed twice in
the complaint, sought a declaratory judgment that the School District had improperly
terminated Bollinger’s employment without giving him notice of his right to a
hearing. Count V asserted a claim for tortious interference with contract against
Thomas for ordering Bollinger’s discharge.
The defendants filed preliminary objections.6 On November 18, 2015,
the trial court overruled the preliminary objections to the declaratory judgment
count, concluding that Bollinger was entitled to a hearing on his dismissal under
Section 514 of the School Code. Section 514 states as follows:
The board of school directors in any school district, except as
herein otherwise provided, shall after due notice, giving the
reasons therefor, and after hearing if demanded, have the right at
any time to remove any of its officers, employes, or appointees
4
On January 9, 2017, a notice of non-participation in the appeal to this Court was filed by Thomas,
David, and Nolt.
5
According to the complaint, Thomas stated at a public meeting that there was a hazing culture on
the soccer teams that was being investigated and promised that action would be taken against the
responsible adult supervisor. Because everyone knew Bollinger had been suspended, it was
obvious that the statement applied to him.
6
One Defendant, Thomas, did not file a responsive pleading; the trial court noted she may not
have been served.
3
for incompetency, intemperance, neglect of duty, violation of
any of the school laws of this Commonwealth, or other improper
conduct.
On the removal by the board of school directors of any officer,
employe, or appointee, such officer, employe, or appointee shall
surrender and deliver to the secretary, or other person designated
by the board, any and all papers, property, and effects of the
school district in his hands at the time of such removal.
24 P.S. §5-514. The trial court remanded the matter to the School Board for a
hearing and stayed the disposition of the remaining preliminary objections, pending
exhaustion of Bollinger’s administrative remedies.
The School Board appointed A. Kyle Berman, Esq. to serve as hearing
officer. At the outset of the hearing on January 26, 2016, the School District objected
to the Section 514 hearing. It acknowledged that a non-professional school
employee terminated before the conclusion of a contract is entitled to a hearing, but
relief is limited to the compensation amount stated in the contract. Because
Bollinger was paid in full, there was nothing to be decided. Nonetheless, the School
District conceded that the trial court’s order required an administrative hearing, and
it proceeded.
The School District’s first witness was Scott Layer, the Vice-Principal
and Director of Athletics. Layer testified that on September 22, 2014,7 he received
an e-mail from a reporter at Philadelphia Magazine claiming to have learned of a
hazing and bullying problem in the athletics department and that “the JV soccer
coach had used the tiresome phrase ‘boys will be boys’ when presented with the
issue.” Reproduced Record at 198 (R.R. __).
7
The email is dated September 19th. Layer advised he did not read it until September 22nd.
4
Layer questioned the head soccer coach, Chuck Gesing, who responded
that he was unaware of any problems. However, after questioning the varsity
players, Gesing learned of the school bus incident and so advised Layer. The next
day, Layer suspended Bollinger pending the investigation.
Layer testified about the anti-hazing policy set forth in the Athletic
Policy Handbook,8 which Bollinger received. The handbook defines hazing as
follows:
Hazing is any action which recklessly or intentionally endangers
the mental or physical health or safety of a student or which
willfully destroys or removes public or private property for the
purpose of initiation or admission into or affiliation with, or as a
condition for continued membership in, any organization
operating under the sanction of or recognized as an organization
by an institution of higher education. The term shall include, but
not be limited to any brutality of a physical nature, such as
whipping, beating, branding, forced calisthenics, exposure to the
elements, forced consumption of food, liquor, drug or other
substances and other forced physical activity which could
adversely affect the physical health and safety of the individual,
and shall include any activity which would subject the individual
to extreme mental stress, such as sleep deprivation, forced
exclusion from social contact, forced conduct which could result
in extreme embarrassment, or any other forced activity which
could adversely affect the mental health or dignity of the
individual, or any willful destruction or removal of public or
private property.
R.R. 180 (emphasis added). Addendum “F” of the Athletic Policy Handbook
provides a second, more generalized definition of hazing:
All verbal, written, or physical conduct, which harasses,
humiliates, persecutes students, or disrupts or interferes with any
8
The handbook submitted into evidence was for the 2015-16 school year. Layer stated that the
handbook has not changed in the last ten years. The only update is on the cover page, which is
changed to reflect the current school year.
5
student’s curricular or extracurricular experiences shall not be
tolerated.
R.R. 192 (emphasis added). Bullying is not defined or specifically mentioned in the
handbook. However, Layer testified that “bullying” was subsumed in the
handbook’s prohibition against unsportsmanlike conduct and its requirement that
coaches advance sportsmanship.
Layer explained that each year he holds a preseason meeting with
coaches and the players, which, inter alia, addresses hazing and bullying. In these
sessions Layer shares his own personal experiences “because [he] want[s] to make
it real.” Notes of Testimony at 28; R.R. 56. Layer stated that he reminds all coaches
at these preseason meetings that they must report any hazing or bullying incidents
directly to him.
Iris Parker, the high school principal, was the next witness. After
learning that an incident occurred on a school bus, she obtained a video recording
from the bus company and viewed it.9 The video shows two camera angles, one
from the front of the bus, the other from the back; it does not contain audio. Parker
testified that the video shows the varsity players passing Student J “from one set of
hands to the other, and then the third young man was literally shaking him.” N.T.
43; R.R. 71. Parker agreed that bullying is not defined or specifically mentioned in
the Athletic Policy Handbook. However, she also asserted that bullying was
subsumed in the handbook’s prohibition against unsportsmanlike conduct and
requirement that coaches advance sportsmanship.
Lynn David, Human Resources Director, testified. She explained that
she is responsible for the conduct of School District employees, not students. She
9
The hearing officer watched the video during the hearing. The video was not admitted into
evidence.
6
interviewed Bollinger, viewed the video, and authored a letter on September 23,
2014, suspending Bollinger with pay, pending the outcome of the investigation.
David testified that the video footage shows almost everyone on the bus
looking toward the back of the bus throughout the incident. At her interview of
Bollinger on October 3, 2014, the two watched the video together. Bollinger claimed
that he saw only part of the wedgie incident. Further, when Student J walked back
to his seat, Bollinger heard him say “that wasn’t too bad or that didn’t hurt.” N.T.
55; R.R. 83. As such, Bollinger did not believe he needed to intervene. Bollinger
told David that he did not report the incident because it did not seem reportable.
Bollinger admitted that when the head coach asked about the incident, Bollinger did
not disclose that he had actually witnessed it.
David recommended to Natalie Thomas, the School District’s
Superintendent, that Bollinger be discharged. When her recommendation was
accepted, David wrote to Bollinger on October 15, 2014, advising him that he was
permanently relieved of his coaching duties but that he would receive all the
compensation owed to him under the contract. The discharge was based on
Bollinger’s (1) failure to report bullying and hazing to the head coach or School
District administration and (2) failure to share knowledge of the incident when
questioned by the head coach.
Bollinger testified. He explained that he has been coaching at the
School District since 1987 and understands the need to be vigilant about student
bullying. In fact, in the past he has reported instances of bullying to the varsity
coach. Bollinger testified that he did not report the incident on the bus for several
reasons. First, he did not see the entire incident. He was sitting in the front of the
bus to monitor the bus driver. When something drew his attention to the back of the
7
bus he saw a senior varsity player lifting Student J. In response, Bollinger “waved
and yelled, sit down, which [he] usually [does if they are] standing up for any period
of time on a moving bus, and they sat down.” N.T. 99; R.R. 127. Second, as Student
J was returning to his seat, Bollinger “heard him, say, that didn’t hurt, and he sat
down.” Id. Bollinger stated that the bus ride ended about one minute later. Bollinger
considered the incident “horseplay,” and not one of hazing. N.T. 108; R.R. 136.
When the head coach contacted Bollinger, he told Bollinger there was
going to be an investigation of the school bus incident. Bollinger did not tell the
head coach what he knew about the incident because he decided it was not his place
to “fill in the blanks for him” or “confuse what he knows with what I saw” in light
of the investigation. N.T. 103, 104; R.R. 131-32.
Bollinger acknowledged that he was given an Athletic Policy
Handbook every year at preseason camp, but he had never read it until after the
school bus incident. He agreed “you have to step in all the time” with high school
boys. N.T. 107: R.R. 135.
On cross-examination Bollinger acknowledged that the video showed
him looking in the general location of the incident. However, the video was taken
from the roof of the bus not at eye level. Bollinger testified he did not have a clear
view because he was seated in the front of the bus. The video shows Student J lifted
up by his underwear twice, but Bollinger testified that he only saw it happen once.
He did not believe that what he saw constituted hazing or bullying. Had he seen
everything that was recorded on the video, Bollinger stated that he would have
intervened.
The hearing officer issued a recommended adjudication. He concluded,
as a matter of law, that Bollinger was not entitled to a hearing because his
8
employment contract was for a one-year period, and he was fully paid. By the time
of hearing, the one-year contract period had expired. Thus, even if Bollinger had
sought reinstatement, which he did not, it could not have been awarded.
On the evidence, the hearing officer concluded that it established that
Bollinger had acted in neglect of his duty, violated school policies, and acted
improperly. The hearing officer found the School District’s witnesses credible. He
did not credit Bollinger’s claim that he did not witness the entire incident. Based on
the video, the hearing officer specifically found that Bollinger witnessed the entire
incident. The hearing officer rejected Bollinger’s argument that the school bus
incident did not constitute bullying or hazing, as those terms are defined in the
Athletic Policy Handbook and, thus, the incident should have been reported.
The record does not contain the School Board’s order adopting the
hearing officer’s recommended adjudication. Instead, the record contains an e-mail
dated August 10, 2016, from the School District’s attorney to Bollinger’s counsel,
which states as follows:
The board adopted the attached adjudication [the hearing
officer’s recommended adjudication] at its July 26 meeting. I
apologize for the delay in sending it to you. Your deadline to
appeal will start from today.
Certified Record (C.R.), Section 2 at 5.
On September 9, 2016, Bollinger filed a petition for review of his
discharge pursuant to Pennsylvania Rule of Appellate Procedure 1531.10 The
10
Rule 1531 provides:
(a) Appellate jurisdiction petition for review proceedings. A party to a
proceeding before a government unit that resulted in a quasijudicial order may
intervene as of right in a proceeding under this chapter relating to such order by
filing a notice of intervention (with proof of service on all parties to the matter)
9
petition was docketed with the trial court under the docket number of the pending
civil action and sought review of the hearing officer’s adjudication under Section
933(a)(2) of the Judicial Code.11 Specifically, Bollinger challenged the
determinations that he was not entitled to a Section 514 hearing and his discharge
was valid.
The trial court conducted a hearing, at which no new evidence was
presented, and affirmed the “Adjudication of the Hearing Officer.” Rule 1925(a)
Op. at 7. In its Rule 1925(a) opinion, the trial court held that Bollinger was not
entitled to a Section 514 hearing because his sole property interest in the one-year
contract was compensation in the amount of $4,620, which he received. Bollinger
did not claim that he was entitled to a renewal of the contract. On the merits, the
trial court held that the evidence fully supported the conclusion that Bollinger
with the prothonotary of the appellate court within 30 days after notice of the filing
of the petition for review ….
(b) Original jurisdiction petition for review proceedings. A person not named as
a respondent in an original jurisdiction petition for review, who desires to intervene
in a proceeding under this chapter, may seek leave to intervene by filing an
application for leave to intervene (with proof of service on all parties to the matter)
with the prothonotary of the court. The application shall contain a concise statement
of the interest of the applicant and the grounds upon which intervention is sought.
PA. R.A.P. 1531.
11
It states:
(a) General rule.--Except as otherwise prescribed by any general rule adopted
pursuant to section 503 (relating to reassignment of matters), each court of common
pleas shall have jurisdiction of appeals from final orders of government agencies in
the following cases:
***
(2) Appeals from government agencies, except Commonwealth
agencies, under Subchapter B of Chapter 7 of Title 2 (relating to
judicial review of local agency action) or otherwise.
42 Pa. C.S. §933(a)(2).
10
neglected his duty, violated school laws and acted improperly. The trial court
recommended that Bollinger’s appeal to this Court be quashed because its order did
not “dispose[] of all claims and of all parties” in the civil lawsuit and, thus, was not
a final and appealable order. Rule 1925(a) Op. at 5; Pa. R.A.P. 341(b)(1).
On appeal, Bollinger raises four issues: (1) the trial court’s order was
final and appealable; (2) he was entitled to a hearing under Section 514 of the School
Code; (3) the evidence did not support the finding that the school bus incident
constituted hazing; and (4) the evidence did not show that he neglected his duty,
violated school policies or acted improperly.
We begin with whether Bollinger has appealed a final order. Bollinger
notes that this Court has exclusive jurisdiction over appeals of a final order of a trial
court in local agency appeals. 42 Pa. C.S. §762(a)(4)(i).12 He then concludes that
all of the counts in the amended complaint rise or fall on the claim that he was
improperly terminated by the School District. Therefore, the trial court’s order is
final pursuant to Pennsylvania Rule of Appellate Procedure 341(b)(1).
The School District responds that the trial court’s order did not dispose
of all of the claims of all of the parties in the civil action. Bollinger’s civil lawsuit
contains multiple claims against multiple parties. Bollinger seeks damages for
defamation against the School District and three School District employees.
12
It provides, in relevant part, as follows:
(a) General rule.--Except as provided in subsection (b), the Commonwealth
Court shall have exclusive jurisdiction of appeals from final orders of the courts of
common pleas in the following cases:
***
(4) Local government civil and criminal matters.—
(i) All actions or proceedings arising under any
municipality, institution district, public school….
42 Pa. C.S. §762(a)(4)(i).
11
Rule 341 establishes, in relevant part:
(a) General Rule.--Except as prescribed in paragraphs (d)
[relating to appeals of Superior Court and Commonwealth
Court orders] and (e) [relating to criminal orders] of this rule,
an appeal may be taken as of right from any final order of a
government unit or trial court.
(b) Definition of Final Order.--A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to
paragraph (c) of this rule.
PA. R.A.P. 341(b). Rule 341(c) explains:
When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim or when multiple parties are involved, the trial court or
other government unit may enter a final order as to one or more
but fewer than all of the claims and parties only upon an express
determination that an immediate appeal would facilitate
resolution of the entire case. Such an order becomes appealable
when entered. In the absence of such a determination and entry
of a final order, any order or other form of decision that
adjudicates fewer than all the claims and parties shall not
constitute a final order ….
PA. R.A.P. 341(c).
The trial court’s order addressed one count in Bollinger’s civil action.
That count sought a declaratory judgment that Bollinger’s discharge was invalid
because he had not been given either notice of his right to a hearing or a hearing
under Section 514 of the School Code.13 Generally, decisions made on school
13
It states, in relevant part:
12
employee discipline are appealable under Section 752 of the Local Agency Law, 2
Pa. C.S. §752.14 However, Bollinger raised the issue of his termination in one count
in his civil action. Using the doctrine of primary jurisdiction, the trial court
transferred this count to the School District for a Section 514 hearing.15
Notably, an appeal of the trial court’s order could have been effected.
Bollinger could have sought certification from the trial court that an immediate
appeal was warranted pursuant to Rule 341(c) (“[T]he trial court or other
government unit may enter a final order as to one or more but fewer than all of the
claims and parties only upon an express determination that an immediate appeal
would facilitate resolution of the entire case.”). Bollinger did not choose this route.
The board of school directors in any school district, except as herein otherwise
provided, shall after due notice, giving the reasons therefor, and after hearing if
demanded, have the right at any time to remove any of its officers, employes, or
appointees for incompetency, intemperance, neglect of duty, violation of any of the
school laws of this Commonwealth, or other improper conduct.
24 P.S. §5-514.
14
It provides:
Any person aggrieved by an adjudication of a local agency who has a direct interest
in such adjudication shall have the right to appeal therefrom to the court vested with
jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and
judicial procedure).
2 Pa. C.S. §752.
15
As this Court has explained:
[T]he doctrine of primary jurisdiction permits the bifurcation of a plaintiff’s claim,
whereby a trial court, faced with a claim requiring the resolution of an issue that is
within the expertise of an administrative agency, will first cede the analysis of the
issue or issues to that agency. Once the agency resolves the particular issue or issues
over which it has primary jurisdiction, the trial court may proceed, if necessary, to
apply the agency's decision to the dispute remaining before the trial court.
Pettko v. Pennsylvania American Water Company, 39 A.3d 473, 479 (Pa. Cmwlth. 2012).
13
Nor did he assert that the trial court’s order is appealable as a collateral order.16 We
decline to consider that issue sua sponte.
As noted, Pennsylvania Rule of Appellate Procedure 341 defines a final
order as “dispos[ing] of all claims and of all parties[.]” PA. R.A.P. 341(b)(1). On
its face, the trial court’s order has not disposed of all claims or all parties in the
complaint, which lists six counts17 against four parties. The trial court’s order
involves only one of the counts against one party, i.e., the request for a declaratory
judgment that Bollinger was terminated without proper cause. Amended Complaint
Count IV (second); R.R. 230. The other counts remain outstanding before the trial
court.
Because the trial court’s order was not final and appealable, we quash
Bollinger’s appeal.
_____________________________________
MARY HANNAH LEAVITT, President Judge
16
An interlocutory appeal may be taken as of right from a collateral order pursuant to Pennsylvania
Rule of Appellate Procedure 313. It states:
A collateral order is an order separable from and collateral to the main cause of
action where the right involved is too important to be denied review and the
question presented is such that if review is postponed until final judgment in the
case, the claim will be irreparably lost.
PA. R.A.P. 313(b). The collateral order doctrine is “construed narrowly” and “an appellant must
satisfy all three criteria set forth in Appellate Rule 313(b) in order to be entitled to an immediate
appeal of a collateral order.” Pittsburgh Water and Sewer Authority v. Gladstone, 999 A.2d 1248,
1254 (Pa. Cmwlth. 2010) (internal quotations omitted). Bollinger has not asserted that the trial
court’s order satisfies the above three criteria.
17
The amended complaint lists five counts, but Count IV is listed twice.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James T. Bollinger, :
Appellant :
:
v. : No. 2031 C.D. 2016
:
School District of Cheltenham :
Township, Natalie Thomas, :
Ph.D., Lynn David and :
Dwight E. Nolt :
ORDER
AND NOW, this 7th day of December, 2017, the appeal of James T.
Bollinger from the order of the Court of Common Pleas of Montgomery County,
dated November 14, 2016, is hereby QUASHED.
_____________________________________
MARY HANNAH LEAVITT, President Judge