IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Blairsville

- Saltsburg School : District :

:

v. :

: Blairsville

- Saltsburg Education : Association, : No. 1340 C.D. 2013

Appellant : Argued: April 23, 2014

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANN E E . C OVEY, Judg e

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY FILED: August 20, 2014

Blairsville

- Saltsburg Education Association ( Association ) 1 appeals

from the order of the Court of Common Pleas of Indiana County (trial court) which

grant ed Blairsville

- Saltsburg School District’s (School District) Petition to Vacate

Arbitration Award that reinstat ed Kevin L. Stoner’s ( Grievant ) discharge.

The School District employed Grievant as a teacher since 1988. On

June 20, 2012, the School District’s Board of Directors (School Board) voted to

terminate Grievant ’s employment. At the time of his employment termination

Grievant taught social studies to 7 th and 8 th grade students.

1 The Association is the exclusive and sole representative for collective bargaining for all employees of the School District.2 Grievant ’s criminal record history is uncontested. In 1987, Grievant

was arrested in New York and charged with d riving w hile i ntoxicated and

o perating a m otor v ehicle with .10% blood alcohol content (BAC). Both offenses

were graded as misdemeanors. Grievant pled guilty to the traffic offense Driving

While Ability Impaired under Section 1192.1 of the New York Vehicle and Traffic

Law

.

Thirteen years later, i n 2000, Grievant was arrested in Pennsylvania

and charged with d riving u nder the i nfluence of a lcohol (DUI) and related charges.

This offense was graded as a misdemean or of the second degree. Grievant was
accepted into the Accelerated Rehabilitative Disposition program. Grievant

successfully completed the p rogram and as a result, the charges were dismissed

and the charges were expunged.

Ten years later, i n 2010, G rievant was arrested and charged again with

DUI in Westmor e land County, Pennsylvania. Given Grievant ’s BAC and the

existence of the earlier DUI charge, this DUI was graded as a misdemeanor of the

first degree.

On July 31, 2011, Grievant entered a guil ty plea to DUI under 75

Pa.C.S. §3802(c), which involved the highest rate of alcohol and a second offense

for sentencing purposes. Grievant was sentenced to five years’ probation with the

first five months on house arrest with electronic monitoring (ankle bracelet)

.
Grievant was also ordered to surrender his driver’s license for 18 months, complete

an alcohol highway safety program and complete a court reporting network (CRN)

evaluation.3 Grievant’s sister contacted t he School District’s Superintendent,

Tammy Whitefield, Ph

. D

. , (Dr. Whitefield), and told her of Grievant’s 2010 DUI

arrest. When confronted, Grievant admitted he was arrested for driving while

impaired in 2010. Grievant i nformed Dr. Whitefield that he had attended Gateway

Genesis, a rehabilitation center and that he was sober. Grievant later told Dr.

Whitefield about the two prior offenses.

On January 20, 2012, the School District sent Grievant a Statement of

Charges informing him that he was suspended w ithout pay and that the

administration recommend ed his dismissal based on these offenses. The School

District asserted that the three incidents of driving while impaired constituted

“immorality” which constituted “just cause” for terminating Grievant’s

em ployment under Section 1122 of the Public School Code, 2 24 P.S. §11

- 1122.

The Association filed a grievance on Grievant ’s behalf and alleged

that his termination was without just cause.

On November 6, 2012, an arbitration hearing was held. On March 1 3,

2013, the Arbitrator issued an Opinion and Award

. The Arbitrator made the

factual determination that the three incidents, each separated by a “great expanse of

time,” did not constitute a course or pattern of conduct sufficient to support a

charge of i mmorality. Arbitrator’s Opinion and Award, March 13, 2013, Finding

of Fact (F.O.F.) Nos. 1

- 3, at 25. The Arbitrator also found that Grievant “is a

recovered alcoholic who is now living the life of sobriety and who has clearly

learned from his mistakes of being involved in drinking and driving.” Arbitrator’s

2 Act of March 10, 1949, P.L. 30, as amended

.4

Opinion and Award, March 13, 2013, F.O.F. Nos. 7

- 8, at 25. The Arbitrator

directed the School District to reinstate Grievant to his former position, but without

payment of any wages or benefits he lo st while he was suspended

.

The School District petitioned to Vacate the Award. On July 12,

2013, the trial court granted the School District’s Petition and reinstated Grievant ’s

discharge. The trial court concluded that the Arbitrator’s Award did not hing “to

promote the public policy of protecting children from the dangers of alcohol.”

Trial Court Opinion, July 12, 2013, at 16. The trial court based its ruling on the

fact that Grievant “has repeatedly consumed alcohol and made the decision to

operat e a vehicle” and that “instead of learning from his errors in judgment, the

gravity of his offenses has increased.” Id.

The “essence test” is the proper standard to be employed when this

Court reviews a grievance arbitration award. Westmor e land Intermediate Unit No.

7 v. Westmor e land Intermediate Unit No. 7 Classroom Assistances Education

Support Personnel Association , 939 A.2d 855 (Pa. 2007). The essence test

requires a two

- prong review

. First, the court shall determine if the issue as

properl y defined is within the terms of the collective bargaining agreement.

Second, if the issue is embraced by the agreement and appropriately before the

arbitrator, the arbitrator’s award will be upheld if the arbitrator’s interpretation can

rationally be der ived from the collective bargaining agreement. Id. at 863.

In Westmoreland Intermediate Unit No. 7 , the Supreme Court adopted

a narrow exception, the “public policy” exception, to this highly deferential

standard of review.5 T he “ public policy ” exce ption requires the court to consider whether

the arbitrator’s award “ contravenes a well

- defined, dominant public policy that is

ascertained by reference to the laws and legal precedents and not from mere

general considerations of supposed public interests. ” Westmor e land Intermediate

Unit No. 7 , 939 A.2d at 866.

Th e focus must be on whether the arbitration award , if enforced,

would contravene public policy, not whether the grievant’s misconduct violated

public policy. Westmoreland Intermediate Unit No. 7

. The arbitrator’s findings of

fact are binding on this Court. Bethel Park School District v. Bethel Park

Federation of Teachers, Local 1607 , 55 A.3d 154 (Pa. Cmwlth. 2012).

Here, t he parties stipulated that the two

- prong “essence test” was

satisfied. That is, they agree that the matter was within the terms of the collective

bargaining agreement (CBA) and the Award was rationally derived from the CBA.

Accordingly, t he sole issue on appeal is whether the arbitrator’s award

which ordered reinstatement of Grievant violate d an established public policy. 3

3 The Association listed four issues in its Statement of Questions Involved: (1) did the trial court err in its decision to vacate the award of the arbitrator by its finding that the award itself was in direct contravention of public policy; (2) did the tri al court err in its finding that the public policy exception calls for a vacating of the award especially since the trial court found at pages 9 and 10 of its opinion that the two prongs of the essence test had been satisfied; (3) did

the trial court err i n ignoring the public policy that places great importance as to the rehabilitation of people who have had problems with alcohol and this error is especially egregious in light of the trial court’s statement at page 16 that it appears that Mr. Stoner [Griev ant] has been sober since August 5, 2010, and (4) did the trial court err in its failing to

follow well

- established case laws as to the highly deferential standard of review of public employee arbitration awards? (Footnote continued on next page...)6 In Westmor e land Intermediate Unit No. 7

, there was a well

- defined

public policy of protecting children from exposure to drugs and drug use. The

arbitrator’s award, which placed the teacher back into the classroom while she was

attempting recover y , v iolated that policy.

Here, there is a well

- defined policy against drinking and driving under

the influence. However, the Arbitrator found that Grievant was a recovered

alcoholic

. H e no longer drank and drove. The Arbitrator found that i n the months

preceding the Award, Grievant had successfully attended a rehabilitation center

and clearly learned from his mistakes . This Court is bound by those f indings

. So

was the trial court. H owever, the trial court incorrectly revisited Grievant’s

conduct and concluded, contrary to the Arbitrator, that Grievant remained a threat

to school

- aged children based on his prior convictions. That was error.

The Arbitration Award which placed Grieva nt back into the classroom

after he was rehabilitated did not violate this well

- defined public policy.

The Order of the trial court is REVERSED.

____________________________ BERNARD L. McGINLEY, Judge

(continued...)

A ll of these issues are subsume d in the issue as stated and this Court’s disposition of that

issue. The Court need not address them separately

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Blairsville

- Saltsburg School : District :

:

v. :

: Blairsville

- Saltsburg Education : Association, : No. 1340 C.D. 2013

Appellant :

O R D E R

AND NOW, this 20 th day of August , 20 1 4

, the order of the Court of

Common Pleas of Indiana County in the above

- captioned matter is hereby

REVERSED.

____________________________ BERNARD L. McGINLEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Blairsville

- Saltsburg School : District :

:

v. : No. 1340 C.D. 2013

: Argued: April 23, 2014 Blairsville

- Saltsburg Education : Association, : Appellant :

BEFORE: HONORABLE DAN PELLEGRINI
, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER
, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY , Judge

OPINION NOT REPORTED

DISSENTING OPINION BY
JUDGE LEADBETTER FILED: August 20, 2014

With regret, I must respectfully dissent. This is an extremely

sympathetic case, but I must conclude that Section 111(f.1)(3) of the Public School

Code

, 1 24 P.S. § 1

- 111(f.1)(3), establishes a sufficient well defined public policy

1 This section provides:

If the report of criminal history record information or a form submitted by an employe under subsection (j) indic ates the person

has been convic ted more than once for an offense under 75 Pa.

C.S. § 3802(a), (b), (c) or (d) ( relating to driving under influence of alcohol or controlled substance) and the offense is graded as a misdemeanor of the first degree under 75 Pa.C.S. § 3803 (relating to grading), the person shall be eligible for current or prospective (Footnote continued on next page...)BBL

- 2

against Grievant’s reinstatement. Accordingly, I believe we are constrained to

affirm the decision of the C ourt of Common Plea s.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge

_____________________________ (continued...) employment only if a period of three years has elapsed from the

date of expiration of the sentence for the most recent offense. Act of March 10, 1949, P.L. 30, as amended

, added by Section 1 of the Act of June 30, 2011,

P.L. 112.