               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 ANNE E. COVEY, Judge

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
granted Blairsville-Saltsburg School District’s (School District) Petition to Vacate
Arbitration Award that reinstated 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 7th and 8th grade students.


       1
       The Association is the exclusive and sole representative for collective bargaining for all
employees of the School District.
                Grievant’s criminal record history is uncontested. In 1987, Grievant
was arrested in New York and charged with driving while intoxicated and
operating a motor vehicle 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, in 2000, Grievant was arrested in Pennsylvania
and charged with driving under the influence of alcohol (DUI) and related charges.
This offense was graded as a misdemeanor of the second degree. Grievant was
accepted into the Accelerated Rehabilitative Disposition program.            Grievant
successfully completed the program and as a result, the charges were dismissed
and the charges were expunged.


                Ten years later, in 2010, Grievant was arrested and charged again with
DUI in Westmoreland 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 guilty 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.



                                            2
               Grievant’s sister contacted the 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 informed 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 without pay and that the
administration recommended 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
employment 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 13,
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 immorality. 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.



                                               3
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 lost 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 nothing “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
operate 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. Westmoreland Intermediate Unit No.
7 v. Westmoreland 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
properly 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 derived 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.



                                           4
                The “public policy” exception 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.” Westmoreland Intermediate
Unit No. 7, 939 A.2d at 866.


               The 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, the 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, the sole issue on appeal is whether the arbitrator’s award
which ordered reinstatement of Grievant violated 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 trial 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 in 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
[Grievant] 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…)

                                                   5
               In Westmoreland 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 recovery, violated 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. He no longer drank and drove. The Arbitrator found that in the months
preceding the Award, Grievant had successfully attended a rehabilitation center
and clearly learned from his mistakes. This Court is bound by those findings. So
was the trial court.       However, 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 Grievant 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…)

       All of these issues are subsumed in the issue as stated and this Court’s disposition of that
issue. The Court need not address them separately.



                                                6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Blairsville-Saltsburg School          :
District                              :
                                      :
            v.                        :
                                      :
Blairsville-Saltsburg Education       :
Association,                          :   No. 1340 C.D. 2013
                    Appellant         :


                                  ORDER

            AND NOW, this 20th day of August, 2014, the order of the Court of
Common Pleas of Indiana County in the above-captioned matter is hereby
REVERSED.




                                      ____________________________
                                      BERNARD L. McGINLEY, Judge
            IN 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) indicates the person
              has been convicted 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…)
against Grievant’s reinstatement. Accordingly, I believe we are constrained to
affirm the decision of the Court of Common Pleas.




                                          _____________________________________
                                          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.



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