Parents Against Abuse In Schools v. Williamsport Area School Dist.

• Decision Date: 25 June 1991
• Docket Number: Nos. 369,s. 369
• Citation: 140 Pa.Cmwlth. 559,594 A.2d 796
• Parties: , 69 Ed. Law Rep. 466 PARENTS AGAINST ABUSE IN SCHOOLS; Valrie C. Novinger, parent and guardian of John Novinger, Jr., a minor; et al. v. The WILLIAMSPORT AREA SCHOOL DISTRICT; Oscar W. Knade, Jr., Superintendent of Schools; and Simon Samuel, Williamsport Area School District Psychologist. (Two Cases) Appeal of Simon SAMUEL, Appellant. Appeal of Simon SAMUEL, Williamsport Area School District Psychologist, Appellant. C.D. 1990 and 799 C.D. 1990.
• Court: Pennsylvania Commonwealth Court

Page 796

594 A.2d 796

140 Pa.Cmwlth. 559, 69 Ed. Law Rep. 466

PARENTS AGAINST ABUSE IN SCHOOLS; Valrie C. Novingerparent and guardian of John Novinger, Jr., a minor; et al. v.The WILLIAMSPORT AREA SCHOOL DISTRICT; Oscar W. Knade, Jr.Superintendent of Schools; and Simon Samuel Williamsport Area School District Psychologist.(Two Cases)Appeal of Simon SAMUEL, AppellantAppeal of Simon SAMUEL, Williamsport Area School District Psychologist, Appellant.

Nos. 369 C.D. 1990 and 799 C.D. 1990.

Commonwealth Court of Pennsylvania.

Argued Oct. 30, 1990.

Decided June 25, 1991.

Clifford A. Rieders and Robert Vesely for Parents Against Abuse in Schools.

David C. Shipman, Williamsport, for appellants.

Before McGINLEY and BYER and CRUMLISH, Jr., Senior Judge.

BYER, Judge.

This is an appeal from an order of the Court of Common Pleas of Lycoming County denying a petition to open a peremptory judgment in a civil action--mandamus.The issues have already been thoroughly and thoughtfully considered by the trial court in its three opinions in this case.We affirm its decision.

The plaintiffs(collectively, parents) are a parents association and a number of individual parents of fourth graders who suffered physical and emotional abuse during the 1987-88 school year at the hands of their teacher, an employee of the Williamsport Area School District.In an attempt to discover the precise nature of the abuse so that the teacher could be removed from his position, and to determine if the children would require outside counseling, the parents consented to the school district's request to permit one of its psychologists, Simon Samuel, to interview their children.

The parents conditioned their consent to the interviews upon an agreement between the parents and the school district; any information gathered by Samuel during the interviews was to be provided to the parents to assist them in obtaining outside professional therapy for their children at the school district's expense.Although Samuel indicated that he had compiled notes from the interviews, and the parents gave written authorization for release of the notes, the school district and Samuel have not supplied reports, notes, or information of any type to the parents, as required by the agreement.

The parents filed a civil action--mandamus and moved for peremptory judgment against the school district, its superintendent and Samuel.The parents requested the trial court to order the defendants to provide copies of the notes Samuel recorded during the interviews of their children.The trial court ordered the defendants to provide the interview notes to the parents.After some procedural skirmishes, described below, the case now is properly before us on appeal solely by Samuel.The other defendants no longer dispute the parents' right to obtain the interview notes.

I.Procedural Considerations

The procedural aspects of this case have caused us some concern, particularly in view of a dispute between the parties regarding which orders of the trial court properly are before us for review.The procedures followed in this case are somewhat unorthodox.

Plaintiffs commenced the action by writ of summons.They then filed simultaneously a complaint and a motion for peremptory judgment in mandamus under Pa.R.C.P. 1098.Defendants filed preliminary objections to the complaint and an answer to the motion for peremptory judgment.¹

The parties filed a stipulation of facts.On August 1, 1989, the trial court filed an opinion and order granting the relief requested by the plaintiffs, but without stating whether the trial court was entering peremptory judgment or deciding the case as a nonjury trial based on a stipulation of facts.²

Defendants then filed both a notice of appeal to this court and a document entitled "Motion of Defendants for Reconsideration(Post-Trial Motion)."Defendants' motion asserted that the trial court had based its August 1, 1989 ruling on facts which were beyond the stipulation and, therefore, not in evidence.

On August 30, 1989, the trial court issued an order granting the motion for reconsideration of the August 1, 1989 order, which the trial court vacated.³This order granting reconsideration rendered the notice of appeal "inoperative."Pa.R.A.P. 1701(b)(3).

The trial court then conducted an evidentiary hearing on November 21, 1989.On January 16, 1990, the trial court filed an opinion and order.The opinion states that the trial court has decided to "reaffirm our August 1, 1989 Order."The January 16, 1990 order accompanying that opinion states merely that "after hearing, it is ORDERED and DIRECTED that the relief requested in Defendants' Motion to Reconsider is DENIED."

Following the January 16, 1990 opinion and order, defendant Samuel, represented by new counsel, filed a notice of appeal to this court, which currently is before us at No. 369 C.D.1990, and a Petition to Open Peremptory Judgment.

The trial court then filed an "Opinion in Response to Appeal of DefendantSimon Samuel" on March 14, 1990.The concluding paragraph of the opinion reads, "[a]ccordingly, for the reasons as outlined in this Opinion, we reaffirm our prior Orders in this case denying Mr. Samuel's Petition to Open Peremptory Judgment."

Treating the last paragraph of the March 14, 1990 opinion as an order denying the petition to open peremptory judgment, Samuel filed another notice of appeal to this court on April 12, 1990.This appeal currently is before us at No. 799 C.D.1990.

Thus, Samuel currently has two appeals before us: (1) at No. 369 C.D.1990, an appeal from the January 16, 1990 order denying relief to Samuel after the evidentiary hearing following reconsideration of the August 1, 1990 order granting relief in mandamus; and (2) at No. 799 C.D.1990, an appeal from the "order" contained in the last paragraph of the March 14, 1990 opinion denying the petition to open peremptory judgment.

Although we are not without doubt on this question, we believe that there is an appeal properly before us from the denial of a petition to open a peremptory judgment in mandamus, although this might require us to treat the last paragraph of the March 14, 1990 opinion as an order, notwithstanding Pa.R.A.P. 301(b)("Every order shall be set forth on a separate document.").SeeBrandschain v. Lieberman, 320 Pa.Superior Ct. 10, 466 A.2d 1035(1983)(separate document requirement of Pa.R.A.P. 301(b) is not jurisdictional);but seeMitchum v. Atlantic Richfield Co., 364 Pa.Superior Ct. 583, 528 A.2d 662(1987)(appeal quashed on motion of appellee where "order" merely was last paragraph of opinion).Our willingness to find an appealable order is based in large part upon the fact that we are unwilling to place all the consequences on defendant of what might have been a failure by the trial court to precisely characterize the nature of the proceedings and relief granted at the various stages of this case.

In the alternative, the parents concede that the January 16, 1990 order was appealable and it is properly before us.However, the parents characterize that order as an action by the trial court which "reaffirmed its Order of Peremptory Judgment."Brief for Appellees, 12.We would agree that the January 16, 1990 order is appealable only if that order were deemed to be the denial of a petition to open the peremptory judgment, in which event the filing of the timely appeal from that order deprived the trial court of jurisdiction, by operation of Pa.R.A.P. 1701(b), to consider what would have been a superfluous, second petition to open the peremptory judgment.

We do not think it matters much, in the context of this case, which of the orders we consider to be appealable, because in either event we would hold that Samuel has not waived any of the questions he presents for review.Therefore, we will not quash either of the appeals, but consider them as a single appeal.However, we strongly suggest that the unorthodox procedures followed in this case not be repeated.⁴

II.Propriety of Mandamus

Samuel first argues that the trial court erred in granting mandamus relief, because he claims other adequate remedies were available.Mandamus is an extraordinary remedy which is available to compel performance of a ministerial act or mandatory duty where the plaintiff's legal right is clear and there is no other adequate remedy.York-Green v. Board of Supervisors of South Hanover, 87 Pa.Commonwealth Ct. 93, 95, 96, 486 A.2d 561, 563(1985).We have gone so far as to suggest that the existence of an adequate, alternative statutory remedy deprives a court of jurisdiction to grant relief in mandamus.Merritt v. West Mifflin Area School District, 56 Pa.Commonwealth Ct. 126, 424 A.2d 572(1981).

Samuel does not assert the existence of an adequate alternative statutory remedy; but he does claim the parents have three available non-statutory remedies which preclude mandamus relief.Two of these alleged alternative, adequate remedies are actions in equity, namely an action for specific performance and an action for a mandatory injunction.

We find the argument that mandamus relief is not available where there is an adequate remedy in equity to be most unique.Mandamus is an action at law.The usual argument is that the availability of an action at law precludes relief in equity.The logical implication of Samuel's argument is that the parents cannot maintain at action at law where the remedy in equity is adequate.Although we easily could dismiss Samuel's argument solely because it is completely illogical, we nevertheless will deal with it, because the argument clearly is without merit even apart from the fact that it inverts the principles governing the availability of relief in equity.

Samuel's argument that the parents have an adequate remedy in the form of an action for specific performance of their contract with the school district misperceives the nature of the parents' claim.The parents'...