IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy L. Salvatore,
Appellant
v.
Dallastown Area School District
BEFORE:
:
:
:
:
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No. 995 C.D. 2014
Submitted: December 5, 2014
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON
FILED: February 20, 2015
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 crossmotion 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).1
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.
1
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §13-1361.
2
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
3
“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).
***
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.
4
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).
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.

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.
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.
5
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).
6
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
7
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
8
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
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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.
10
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).
11
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
12
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).
13
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
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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.
15
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.2 Under
these circumstances, the public importance exception applies, and the declaratory
judgment claim should therefore be decided on its merits.
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.
ROBERT SIMPSON, Judge
2
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]?
Watts v. Manheim Twp. Sch. Dist. (Pa., No. 191 MAL 2014, filed September 12, 2014) (order).
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy L. Salvatore,
:
:
:
:
:
:
Appellant
v.
Dallastown Area School District
No. 995 C.D. 2014
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.
ROBERT SIMPSON, Judge